THE ATTORNEY FOR THE CHILD MAKES THE CHILD’S WISHES KNOWN
Children are stakeholders in divorce as much as their parents. How are children’s wishes made known during a divorce or custody proceeding? In New York state, children in certain cases are entitled to their own lawyers, who represent their interests before the court. Children’s interests may differ from their parents’. For example, suppose one parent is emotionally unstable and breaks down at visits with the children, dismaying and confusing them. They are not comfortable and say so to their lawyer, who may speak in court on their behalf.
The function of the Attorney for the Child (“AFC”) is described in the rules of New York’s chief administrative judge. An AFC represents a child as any other attorney represents a client and conversations between AFCs and their clients are confidential. An AFC has the responsibility to represent and advocate the child’s wishes and interests. AFCs are subject to the ethical requirements applicable to all lawyers, including constraints on: communication with the court without notifying other parties in the case; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the case. In learning the child’s position, the AFC must consult with and advise the child in a way that takes into account the child’s capacities, and the AFC must have a thorough knowledge of the child’s circumstances.
In view of the age of the clients and the sensitive nature of the cases in which they are appointed, AFCs are presented with unique challenges. For example, a parent may “lobby” a child to make negative statements to the AFC about the other parent. As attorneys for children, however, AFCs must act in a manner consistent with proper legal practice and should not assume the role of social worker, psychologist or advocate for one of the other parties. Although they may be tempted to step outside the role of counsel for the child when the circumstances of the case are especially compelling, the rules of good lawyering apply here the same as elsewhere. For example, an AFC may speak with a child’s parent only if the parent’s attorney gives permission to do so.
Boiled down, the rules governing AFCs dictate that they must advocate their clients’ wishes unless doing so places a child in harm’s way. If an AFC substitutes his/her judgment for the client’s for this reason, the AFC must inform the court of the child’s articulated wishes if the child wants the AFC to do so, notwithstanding the AFC’s position.
The judge may wish to speak directly with a child when a case is protracted, has gone to trial or may go to trial. The judge decides whether or not this will happen. This is not an open hearing. Parents are not there, nor are parents’ attorneys; only the AFC, the child and the judge are present. The hearing is recorded.
Cannot remove AFC
Sometimes parents ask their attorneys to have the AFC removed, as they think the AFC may have taken one side or another. This will not happen unless there is a true conflict of interest. The AFC’s taking a position adverse to a parent’s or what the child says is not enough to justify removal.
Compensating the AFC
In Supreme Court, clients pay for the AFC’s services; in Family Court, the State typically pays; however, if both parties have retained attorneys, the parties can be ordered to pay.