Role Of The Attorney For The Child In New York Custody Cases

attorney for the child with very young client

This article discusses the role of the attorney for the child in New York custody and visitation cases. During my career, I have represented hundreds of children in the Family Court in all types of cases, but mostly in child custody cases or juvenile delinquency cases. This article is intended to provide general information only about the role of the attorney for the child in New York cases. Laws and procedures differ in other states.

From Law Guardian To Attorney For The Child

Over the years, the role of attorneys who represent children in child custody cases has dramatically changed. In the “old days” , attorneys who represented children, when dealing with children of ages up to 11 or 12, could advocate for what the attorney thought was in the best interest of the child or children, and if the child was around 15 through 17, they would advocate for the child’s wishes, unless there was some kind of serious safety issue. For the “in between” ages, the attorney for the child would have to determine how mature the child or children were and it was often not clear exactly what the attorney’s role was supposed to be.

In more recent years, the role of the attorney for the child has become very different. An Attorney for the Child (AFC) is appointed by the court to represent the interests of the child in a custody case. What this means is that the attorney for the child, in the vast majority of cases, cannot “substitute judgment” and advocate for what the AFC believes is the best outcome for the child, but instead must advocate for the wishes of the child (or children) unless the child was is very young, or is so immature as to be unable to understand the issues involved. It is still possible for the attorney for the child to substitute judgemet if there exists a clear, imminent, and serious risk to the safety of the child.

Many attorneys were uncomfortable with the new rules and some even stopped accepting these cases. I remember representing one boy who was around 9 or 10 years old who told me that he did not want to visit his father at all. When I asked him why, his response was “I would rather visit my cousin because my cousin has a really cute cat”. Under the new rules, I was now required to advocate that this young boy should have no contact whatsoever with his father.

One of the strage things about the law, at least in New York State, is that even though the attorney for the child’s role in representing a child is supposed to be as much as possible identical to their role representing a parent, if there is an in camera interview of the child, the only lawyer who is allowed to be present is the attorney for the child. Lawyers for other parties are strictly forbidden from having any discussions with the judge without the other attorneys being present.

The Law Guardian Standards

Prior to the new rules, some of which were made by the Chief Judge of the New York Court system, attorneys who represent children often referred to a treatise called “The Law Guardian Standards” for guidance about their role and what exactly they were supposed to do when representing children in the New York courts. The Law Guardian The Standards did not have the force of law but were considered by many to be persuasive authority and were cited in many reported cases. Many attorneys regarded the standards as largely aspirational, or exemplifying best practices, since following them to the letter would likely require a dedicated and multidisciplinary team, which was impossible for solo practitioners or small family law practices.

The Standards did, however, make it very clear that a “Law Guardian” had to do much more than just stand up in court and tell the court what the child’s position was, instead, he or she should participate fully in the case,  do an independent investigation, locate and call witnesses, and make the same kind of arguments that he or she would make if representing an adult client. In the case of the 10-year-old boy who wanted to have nothing to do with his father because he preferred his cousin’s cat, if there was a trial, I would be required to try to make his father look as bad as possible in order to represent my young client’s wishes.

However, even under the new rules, an attorney for the child is allowed, and indeed even required , to provide appropriate advice and counseling to the child, or even assist in providing the child with required services. It can be seen, that when representing children, the attorney also takes on the role of a social worker, to some extent. In fact, attorneys for children often use licensed social workers in most, if not all, of their visitation cases.

Issues When Attorneys Represent More Than One Child In A Custody Or Visitation Case

It is not unusual that an attorney will be assigned to represent more than one subject child. Usually the subject children are siblings who reside in the same household. There is a fair amount of controversy about when this is proper or improper. One view is that if the children have different positions, they must be assigned different attorneys. The rationale for this view is that an attorney who is required to vigorously  for his client’s position , which includes locating and calling witnesses, would be forced to litigate simultaneously for two different positions, which would be impossible.

Other attorneys claim that an attorney just has to stand up in court and tell the court that one child wants one outcome and the other child wants a different outcome. This is, as we have seen, in total contradiction with the stance taken in the Law Guardian Standards . For that reason, I think that attorneys who make this argument are uninformed, or possibly just lazy.

There are also obvious issues of confidentiality. This may not be a problem when one of the children is an infant or barely verbal and is unable to provide any information to the attorney, but otherwise, an attorney who is getting confidential information from two clients whose interests are adverse to one another is in an untenable position.

An attorney who has been assigned to represent multiple children and believes that there is a conflict of interest can ask the Court for permission to withdraw from the case so that two or more different attorneys be assigned. If the judge refuses to do so, the attorney can make a written motion, and if denied, may be able to appeal that decision. Some attorneys believe that they can decide to “keep” one child and have a new attorney assigned to the other child.

What Happens If The Attorney For The Child Believes That He Cannot Represent More Than One Child?

Interestingly, the Law Guardian Standards state that in the event of a conflict of interest, the attorney “may consider asking that a second attorney be assigned”. Attorneys should think long and hard about following this particular guideline as it may conflict with other ethical rules which do have the force of law. However, if one of the children is an infant or if the attorney has a basis for substituting judgment for one child, and hence will not be required to advocate different positions, it should not be a problem to stay on the case and have another attorney assigned. I will stress that this is just my opinion.