In New York State, the Family Court and Supreme Court may appoint an Attorney for the Child (“AFC”), to represent the interests of the child/ren in contested custody and/or access proceedings, as well as in neglect and abuse proceedings, juvenile delinquency proceedings and persons in need of supervision (PINS) proceedings. Formerly referred to as Law Guardians, the role of the AFC has evolved over time to the point where the attorney is no longer an adjunct of the Court whose function is to articulate what is best for the child but a zealous advocate, fighting for the child’s position.
Depending on which Court appoints the AFC and depending on the amount of the combined incomes of the parties, the legal services charged by the AFC in his/her representation of the child may be subsidized by the state or allocated between the parties. The Court will determine in advance how the costs of the AFC will be paid, after reviewing the individual circumstances of each case.
An integral part of the duties of the AFC is to consult with his/her client and advise the client in accordance with his/her capacities and with consideration for the child’s circumstances. Most importantly, if a child is capable of knowing, voluntary and considered judgment, the AFC should be directed by the wishes of the child, even if the AFC believes that what the child wants is not in the child’s best interests. The attorney should fully explain the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.
When the AFC is convinced either that the child lacks capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the AFC would be justified in advocating a position that is contrary to the child’s wishes.
Most litigants in a contested custody or access proceeding mistakenly believe that the AFC is impartial, but nothing could be farther from the truth. The AFC is subject to the same ethical requirements applicable to all lawyers, including but not limited to constraints on ex parte communication, disclosure of client confidences and attorney work product; conflicts of interest and becoming a witness in the litigation.
Ultimately, as set forth above, the AFC is to advance the child’s position and no other, although it may and usually does correlate with one of the party’s position. A zealous advocate can do that without betraying the child’s confidences, unless given permission by him or her. If you are a litigant in a contested proceeding, it is important to remember that the communication between the child and his/her AFC is confidential. A litigant/party in a proceeding should never inquire of the child what he or she has told his/her attorney. Nor should the litigant/party expect to be informed of what led the child to his decision.
In figuring out the child’s position, the AFC must minimally consult with the child. Even an infant incapable of speech, let alone, knowing and intelligent communication regarding his/her position is a source of information that the AFC cannot overlook. Quite simply, the AFC has the ability to observe first-hand the cognitive abilities of the child, the level of caretaking of the parent or other litigant accompanying the child to the meeting with the AFC, the physical health of the child and, equally as importantly, the bond or lack thereof between the child and litigant.
In any contested custody/access proceeding or a neglect/abuse proceeding, the AFC will inquire of a litigant or his attorney, whether the AFC may speak to him/her outside of the presence of his/her counsel. No negative inference is made when the litigant requests the presence of his/her attorney. The purpose of the discussion is merely to ascertain the litigant’s position – why he or she seeks or opposes the relief being requested of the Court, and ascertain what information offered by the litigant is useful to the child’s position.
Most importantly, while the AFC is appointed by the Court, (parties cannot hire an AFC), he or she has no more power or influence with the Court than any of the attorneys for the parents/litigants. They, too, must prove their case on behalf of their client at trial. They are expected to call witnesses supportive of their client’s position and cross-examine witnesses called to testify by the parents/litigants. They must be no less knowledgeable of the case law and statutes supportive of or in opposition to their client’s position, than their adversaries.
Courts favor the AFC being reappointed in subsequent proceedings involving the child, if the AFC is available and willing to accept the appointment and continue his/her representation. Quite simply, the Courts recognize the value of continuity of representation as well as the fact that the child may have established a trust and confidence in the ability of his/her attorney in the prior proceeding that enables easier disclosure between the child and his attorney in subsequent matters.
The foregoing premise goes hand in hand with another tenet held by the Court – that is, absent outright neglect of the case or improper/unethical conduct by an AFC, he or she cannot be removed from his/her role to represent the interests of the child. The fact that the AFC disagrees with the position of a litigant and appears to side with a party whose agenda is similar, if not the same, as the child’s is not a sufficient reason to remove the AFC from his/her role.
Ultimately, it is important for any litigant in a contested custody/access/neglect/abuse proceeding to make the child available to his/her AFC upon request and to not interfere with the AFC’s representation of the child.