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FamilyAttorney
FamilyAttorney, Lawyer
Category: Family Law
Satisfied Customers: 678
Experience:  Owner, attorney in private practice, licensed for 36 years as a trial and appellate attorney
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Is there grounds to have a law guardian removed from a case

Customer Question

Is there grounds to have a law guardian removed from a case if he interferes with the orders of the court? My children's attorney has had communication with my boys father (while he was pro se) and accepted private medical documents about me that were sealed under a court order in our previous custody case in another state. The court ordered that the children receive therapy from a specific provider. when I called to set it up the law guardian told the office that it was not ordered and to hold off on treating the children. The law guardian also told the court that the childrens new therapist stated that the children did not need therapy and that she did not need to see them again, when in fact she told him that one child was showing signs of separation anxiety and she never stated that they did not need therapy. He has interfered on all fronts in this case and is unoquivically aligned with the Father. Is there a way to get him removed from the case?
Submitted: 2 months ago.
Category: Family Law
Expert:  FamilyAttorney replied 2 months ago.

Hello. I’m a family lawyer and appellate attorney with 36 years’ experience and also have extensive experience with landlord-tenant issues. I look forward to helping you today.

At the end of our discussion I’m going to ask you to rate me, okay? I’d appreciate it because this is the only way we get credit for our time here today. It is at no extra cost to you.

Please note:This is general information for educational purposes and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an attorney on this site. You are advised to retain your own attorney.

If I’m back not here right away, I’m typing my answer. Thanks!

Expert:  FamilyAttorney replied 2 months ago.

In NY, law guardians are now known as Attorneys for the Children, and I am one of them. But that's good for you because I can give you my perspective on it. Upstate and in Suffolk County I think they still refer to "us" as law guardians but technically we are AFCs.

Expert:  FamilyAttorney replied 2 months ago.

Here's the state of the law in NY as it is right now. It is difficult to get an Attorney for the Child (AFC) off the case. Because I'm an appellate attorney, I keep up with the latest case law. I am actually an AFC on appeal for children. I represent them at the appellate stage although I have been a litigator for many years.

The AFC has to have really interfered in the case and have done something wrong to have a judge throw him off the case. In your situation, it is possible. You would have to make a motion for that (or have your attorney do that if you have an attorney). Your lawyer will tell you it's a difficult thing to do but if you can prove wrongdoing, and misrepresentation to the court, it has been done before and it could happen. It just hasn't been done a lot. You have to really make a case for how the AFC messed up and what he did wrong, what he misrepresented, etc. There is case law to support your position as well as case law against it, and there is more against it but there are some cases where the AFCs have been thrown off the case. Make the motion if you feel the AFC is biased, has misrepresented and has obtained information he wasn't supposed to obtain, etc. Make the motion strong, with case law supporting it.

Have I answered your question?

Customer: replied 2 months ago.
I believe I can make the case but I need to know the relevant case law and statute that supports removal of an AFC.
Customer: replied 2 months ago.
There are other very strange issues with this case. I have many questions about what my options are. If I choose to do a phone consult with you can I ask you these questions?
Expert:  FamilyAttorney replied 2 months ago.

I have the ethics rules for AFCs and certain cases are listed.

The leading case against removal is Matter of Carballiera v Shumway, 273 AD2d 753, lv denied 95 NY2d 764. The case stands for the proposition that an AFC is allowed to form an opinion.

There is a case where someone I knew was thrown off a case.

The case is Cervera v Bressler, 50 AD3d 837. I will tell you that this is the wrong citation because this case was in court dozens of times, but one of the Cervera Bressler cases, the Appellate Division said the AFC was too biased and threw him off the case and returned the case to the lower court with a new AFC.

I have the ethics rules for AFCs here.

https://www.nycourts.gov/courts/ad4/AFC/AFC-ethics.pdf

That might be enough to help you get started. Do you have a lawyer in this case?

Expert:  FamilyAttorney replied 2 months ago.

You had another question listed here also -- someone else was helping you with that question so I can't jump in unless that person has opted out but it looks like you'll have to wait for an answer tomorrow on that one. I'm in the east coast but I work late.

Expert:  FamilyAttorney replied 2 months ago.

I also don't have access to my search engine right now so I can't pull up other cases unless I find them online.

Customer: replied 2 months ago.
I requested a new attorney so yes you can help
I read the ethics rules and he has violated some of them.
Customer: replied 2 months ago.
I do not have an attorney now but I am trying to draft the correct motion because I must file it tomorrow and I do not know which way to go with it. Its almost impossible to explain the entire case through messaging
Expert:  FamilyAttorney replied 2 months ago.

Oh I didn't see that. I figured she was continuing on the case. I don't see that she opted out.

I do have a copy of a motion someone did, so you can follow the format if you like it.

http://www.appellate-brief.com/practice/divorce-law/46-practice-areas/divorce-law/295-motion-to-remove-law-guardian.html

Expert:  FamilyAttorney replied 2 months ago.

You can't ask for a particular attorney for your child unless you hired your own attorney for your child. I can help you to a certain extent because I don't have a search engine right in front of me but I think the motion I sent you will help. The affidavit annexed to the motion has to be detailed just like it is there.

(in the motion they ask for a specific attorney)

Expert:  FamilyAttorney replied 2 months ago.

I don't see that that attorney opted out of that question so I can't jump in.

The other issue is that I am unable to give you cases and statutes right now other than those few. I don't have access to it, I'm sorry, but I think the format of the motion I attached here will help you. If you follow that format, you will be doing the motion correctly.

You have to do an AFFIDAVIT, not an affirmation.

An affidavit has to be signed in the presence of a notary, and that can be out of state.

Expert:  FamilyAttorney replied 2 months ago.

Does this answer your original question?

Expert:  FamilyAttorney replied 2 months ago.

I went the extra mile to give you the information you were seeking here and you have a motion that should help you with the format. I've let you know the state of the law for removing AFCs and how to do it.

Please let me know if you need any more information, such as where to find an attorney in your area, or anything else related to this question. Id' rather be rated positively and if I didn't answer all of your questions, I'd like to have a chance to make sure that I do. Thanks in advance for rating me. If you need more information, let me know as I’m happy to give it.

I hope this helps and clarifies. If you could, I'd appreciate it if you can rate me when finished. Kindly rate me positively so that I can get credit. It is no additional charge to you.

Please accept my answer, rate my answer as one of the top three faces/stars and then submit, as this is how I get credit for my time with you and with your question. I work hard to give you a thorough and honest answer. I thank you in advance for rating me. Please let me know if there is more that I can do to answer your question and if you need more information. If not, I thank you for your rating. I can’t get credit for answering your question without your fair and honest rating.

We are not employees of Just Answer but are independent contractors, so your rating is very important to us so that we can be reimbursed for our work. Thank you!

You are also welcome to come back to this room free of charge to ask me a follow-up to this question at any time. Thank you for letting me help you tonight.

Expert:  FamilyAttorney replied 2 months ago.

Re: the other question, you want to withdraw your petition but he has a petition as well, correct?

Well, anyway, I appreciate a rating for this question because I did the work you asked me to do.

I might be able to help you with your other question tomorrow but I'd have to poke around to look for samples.

Expert:  FamilyAttorney replied 2 months ago.

Also, please note -- the AFC ethics manual I gave you will have the sections the the AFC is supposed to follow and observe. Anything other than what is required by the ethics rules there could be a violation of the duties of an AFC. I think the manual will be helpful as you're doing this motion.

Expert:  FamilyAttorney replied 2 months ago.

Yes, I see you requested a new attorney on your other question.

Expert:  FamilyAttorney replied 2 months ago.

Hi K,

I can't get into the other question because someone else signed on there so in order to do so you would have to request a new attorney again.

I opted out because I thought you were done and weren't coming back. Little did I know you had computer issues!

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