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Posted: January 12, 2016

Court-Appointed Guardian Ad Litem Not a State Actor

On December 22, 2015, the Second Circuit issued a decision in Milan v. Wertheimer, 14‐3527‐CV, holding that court-appointed law guardians are not state actors for the purposes of Section 1983.

In Milan v. Wertheimer, the plaintiff brought Section 1983 claims against several defendants, including two lawyers (Fred Wertheimer and Denise Costanza) who were “law guardians, also known as ‘attorney[s] for the child,’ appointed by New York’s family court to represent the interests of [the plaintiff’s] children in . . . custody proceedings.” The EDNY dismissed the claims against the law guardians. The Second Circuit affirmed, explaining:

The question of whether law guardians so appointed are state actors has not previously been addressed by this Court.

Other circuits, in determining that law guardians are not state actors for the purpose of § 1983, have relied largely on Polk County v. Dodson, 454 U.S. 312 (1981).    In Polk County, the Supreme Court held that public defenders do not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding, notwithstanding the fact that the state pays for the services they provide. We believe that the analogy of a law guardian to a public defender is apt.  Although both are supplied and funded by the state, each acts according to the best interests of the client with no obligation to the mission of the state. Accordingly, we hold that law guardians who act as attorneys for the child are not state actors for the purposes of suits filed pursuant to § 1983.

(Internal quotations and citations omitted).

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