Petitioner's attorney's failure in the custody proceeding to inform Family Court that the very relief he was seeking therein — an injunction against respondent's removing the subject child from the State of New York — had been denied, both by Supreme Court and this Court, in this Supreme Court habeas corpus proceeding he had also initiated on behalf of petitioner, was a sanctionable materially false factual statement ( 22 NYCRR 130-1.1 [c] [3]). The omission was compounded by the attorney's assertion in opposition to the Law Guardian's motion for sanctions that he had verbally informed Family Court of the prior applications, which assertion was proven false by the transcript of the Family Court proceedings submitted with the Law Guardian's reply. The intent to protect a child does not justify a lack of candor with the court. However, as the sanctionable conduct was committed only by petitioner's attorney, petitioner herself should not be held accountable, and, although such relief is not specifically requested, we vacate the sanction to the extent it was imposed against petitioner.
No basis exists to disqualify the Law Guardian, who, having determined that the child is unimpaired in accordance with local standards, has throughout properly acted as the child's advocate in urging retention of the custodial status quo, rather than as an aide to the court in determining the child's best interests (Family Ct Act § 241; see Matter of Albanese v. Lee, 272 AD2d 81; Law Guardian Definition and Standards, State of New York Unified Court System, Statewide Administrative Judge for Matrimonial Matters). Nor does petitioner establish her claims that the Law Guardian's testimony as a fact witness will be necessary in the pending custody proceeding ( see Matter of Herald v. Herald, 305 AD2d 1080, 1081). Again, argument from the Law Guardian in support of the child's stated preferences is to be expected.
Finally, the record filed by petitioner's attorney was so deficient as to amount to frivolous conduct ( 22 NYCRR 130-1.1 [c] [3]). Accordingly, we award the Law Guardian her actual expenses and reasonable attorneys' fees incurred, as indicated.