Child custody cases are very legally intricate, not to mention horribly taxing on one’s emotions. Both the attempt to obtain a new child custody arrangement or protect an existing child custody status are fraught with complex court challenges. If you are facing or considering a child custody case, Gildin and Chapman is here for you. We offer decades of experience to help you navigate this perilous time in your life. We have successfully litigated many hundreds of child custody cases throughout the Greater Metropolitan New York City areas of Manhattan, Brooklyn, Queens, Westchester, Nassau, Suffolk and many other Counties. Call us at (516) 524-5657 now to speak to one of our lawyers.
In this episode of “Justice is Served, with Gildin and Chapman”, we offer you a discussion of the legalities of who speaks for the Child themselves in a child custody and visitation case between their parents.
Generally, both parents in a child custody and visitation case will have their own attorney who will advocate for their positions (or at least the option to have one). The children, however, will not be represented by these attorneys for the parents. But who then will speak on behalf of the children during the tug-of-war over them between the parents? In New York, in a child custody and visitation case there are attorneys who will represent the children, separate and apart from the parents. These attorneys, previously referred to as a “Guardian Ad Litem”, are now simply called the “Attorney for the Children”, commonly referred to as the AFC.
In disputed child custody and visitation case, the appointment of an Attorney for the Children (AFC) has been recognized as entirely appropriate and helpful to the Court, as the AFC may act as Champion of the children’s best interest, as Advocate for the children’s preferences, as Investigator seeking the truth on controverted issues, or a Recommender of alternatives for the Court’s consideration (See also these court decisions which explain this situation further : O’Mahoney v. O’Mahoney,170 NYS3d 582 (2nd Dept 2022); H.K. v. R.C., 72 Misc. 3d 909 (N.Y. Sup. Ct. 2021); Weilert v. Weilert,140 NYS3d 591(2nd Dept 2021); Deem v. Divella-Deem,136 NYS3d 906 (2nd Dept 2021).
While appointment of an AFC in a contested custody and visitation matter remains the strongly preferred practice, such appointment is discretionary, not mandatory (See also these court decisions which explain this situation further: O’Mahoney v. O’Mahoney,170 NYS3d 582 (2nd Dept 2022); H.K. v. R.C., 72 Misc. 3d 909 Gabriel v. Pierre, 192 N.Y.S.3d 177 (2nd Dept 2023); Quinones v. Quinones, 32 N.Y.S.3d 607 (2nd Dept 2016).
The role of the AFC is to speak for the Children – that is to say that this lawyer is to advocate for what the Children themselves want in the case about their own custody and visitation in the future. An AFC in a custody or visitation proceeding must zealously advocate the children’s position, and, if the child is capable of knowing, voluntary and considered judgment, the AFC should be directed by the wishes of the children, even if the AFC believes that what the children want is not in their best interests.
Despite the general rule that the AFC is to convey the Children’s desires, there are however, very limited circumstances when an AFC can take a position that is different from the Children that they represent. An AFC may adopt a position that does not reflect the children’s wishes if they are convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following that child’s wishes are likely to result in a substantial risk of imminent, serious harm to that child. This exception generally applies to young children and children with mental, physical, or emotional disabilities who lack comprehension and communication capabilities. Even in those rare situations when it is appropriate for an AFC to substitute their judgment for a child’s preferences, the AFC must nevertheless inform Court of the child’s wishes if authorized by the child to do so (See also these court decisions which explain this situation further: O’Mahoney v. O’Mahoney,170 NYS3d 582 (2nd Dept 2022); H.K. v. R.C., 72 Misc. 3d 909 Thompson v. Thompson, 188 N.Y.S.3d 811 (4th Dept 2023); Sloma v. Saya, 178 N.Y.S.3d 862 (4th Dept 2022); Silverman v. Silverman, 129 NYS3d 86 (2nd Dept 2020); Jennifer VV. v. Lawrence WW., 122 N.Y.S.3d 707 (3rd Dept 2020); Kleinbach v. Cullerton, 56 N.Y.S.3d 733 (4th Dept 2017).
What if, however, there is more than one single child in a custody and visitation case and they have different feelings about the situation? As explained in Matter of H. Child., 608 N.Y.S.2d 784 (Fam. Ct. 1994) in pertinent part:
The Code of Professional Responsibility and existing precedent, with rare exception, require that an attorney who undertakes the joint representation of two parties in a lawsuit not continue as counsel for either one after an actual conflict of interest has arisen (Code of Professional Responsibility, EC 5–15, DR 5–105 [22 NYCRR 1200.24]). This is mandated because continued representation for either or both parties would necessarily result in a violation of one of the following ethical rules : the requirement to preserve client confidences (Code of Professional Responsibility, EC 4–1, DR 4–101 [22 NYCRR 1200.19]) ; or the obligation to represent a client zealously (Code of Professional Responsibility, EC 7–1, DR 7–101 [22 NYCRR 1200.32]). Here, there is a reasonable probability that one child revealed confidences to the [Attorney for the Child] relevant to the subject matter of this litigation. The ethical dilemma therefore created for the [Attorney for the Child] is whether she would use those confidences to the other child’s advantage or decline to do so to her disadvantage. By making either choice, the [Attorney for the Child] would have to violate one of the above described ethical precepts. The disqualification of the [Attorney for the Child] in these circumstances is therefore required, even in the absence of evidence that the children’s interests actually will be prejudiced. Reasonable probability of prejudice is a sufficient basis for the disqualification. Moreover, any doubt about the existence of a conflict should be resolved in favor of disqualification. Public policy considerations also dictate the disqualification of an attorney where her continued representation would create an appearance of impropriety, however slight. As explained by the Court of Appeals, except for rare and conditional exceptions, the lawyer may not place them in a position where a conflicting interest may, even inadvertently, affect or give the appearance of affecting, the obligations of the professional relationship. In the present circumstances, the appearance of impropriety would exist and have a potentially negative impact.
Thus, the lawyer must be taken off of any child custody and visitation case that is similar to the above and each Child must then have their own, independent lawyer going forward. (See also these court decisions which explain this situation further: O’Mahoney v. O’Mahoney,170 NYS3d 582 (2nd Dept 2022); H.K. v. R.C., 72 Misc. 3d 909; Hoberman v. Hoberman, 209 N.Y.S.3d 543 (2nd Dept 2024); Marotta v. Marotta, 193 N.Y.S.3d 134 (2nd Dept 2023); W.N. v. M.N., 208 N.Y.S.3d 806 (N.Y. Sup. Ct. 2023); Noelle M. v. Christopher C., 116 N.Y.S.3d 859 (N.Y. Fam. Ct. 2019); M.M. v. K.M., 88 N.Y.S.3d 819 (N.Y. Sup. Ct. 2018); Gary D.B. v. Elizabeth C.B., 722 N.Y.S.2d 323 (4th Dept 2001).
As for how the AFC gets paid, depending upon the parent’s financial capabilities, the AFC will be compensated be either one or both of the parents, the Government or a combination of those options (See also these court decisions which explain this situation further: O’Mahoney v. O’Mahoney,170 NYS3d 582 (2nd Dept 2022); H.K. v. R.C., 72 Misc. 3d 909 ; Tsung v. Tso, 139 N.Y.S.3d 64 (1st Dept 2021); Kelly G. v. Circe H., 117 N.Y.S.3d 171 (1st Dept 2019); Lee v. Rogers, 115 N.Y.S.3d 347 (2nd Dept 2019).
Finally, although child custody issues are often within a larger case for divorce, the AFC does not have a right to participate in the litigation of financial matters of their parents’ divorce relating to other issues such as spousal maintenance or equitable distribution of assets (See also this court decision which explains this situation further Mahadeo v. Mahadeo, 142 NYS3d 407 (2nd Dept. 2020).
Contact a New York Custody Lawyer for Your Case
The above discussion is merely a framework for your initial consideration, but as you can now certainly see, child custody and visitation cases are indeed very complex and filed with legal intricacies. If you are facing or considering a child custody case, Gildin and Chapman is here for you.
We offer decades of experience to help you navigate this perilous time in your life. We have successfully litigated hundreds of child custody and visitation cases throughout the Greater Metropolitan New York City areas of Manhattan, Brooklyn, Queens, Westchester, Nassau, Suffolk and many other Counties. Call us at (516) 524-5657 now to speak to one of our lawyers.
