How an Attorney for the Child Makes a Difference in Family Law Cases
Children involved in Family Court often face impactful decisions regarding their lives. An attorney for the child (“AFC”), formerly known as a law guardian, is a licensed attorney, typically appointed by Family Court, pursuant to section 249 of the Family Court Act, for the purpose of providing representation to minor children in court proceedings. An AFC, through zealous advocacy of their minor clients, can guide and protect them with regard to the often tumultuous issues they face. Such instances where an AFC’s expertise can be exercised include juvenile delinquency, custody, visitation, child protective proceedings, etc. In cases of juvenile delinquency, the minor child is designated as the respondent, requiring the AFC to act as a defense attorney and thus defend the child. Where the minor child is not a respondent, an AFC must fervently advocate the child’s wishes. If parties have more than one child, an AFC may represent all of the children, however, if there are different wishes among the children, the court will appoint another AFC to represent the other child or children’s contrasting wishes.
An AFC’s advocacy aids resolution on matters that cannot be reconciled between parties themselves. For example, in an unresolved custody case, if a child wishes to live with Mom more often than Dad, and there would be no harm to the child in doing so, then their AFC must advocate that position in court.
An AFC’s role is measured by what is in the best interest of the child. Following this standard, their role is to advocate the child’s wishes regardless of their own personal view. The child’s preference is controlling, however, if an AFC has reasonable grounds for believing that a child lacks capacity for sound judgment or the child’s position may result in risk of serious, imminent harm to the child, then the AFC is justified in using substituted judgment that may conflict with the child’s preferences. The AFC must inform the court that they will be using substituted judgment, meaning they will implement their own personal preference as to what is best for the child. The role of an AFC in essence provides a child with a voice that they otherwise would not have in court proceedings.
AFCs are held to the same ethical standard as any attorney representing an adult and should not divulge the client’s confidence or secrets. In certain circumstances, the attorney may reveal such information if they have reasonable belief that exposure is necessary, such as risk of bodily harm to the child.
Once appointed, an AFC should become knowledgeable about the case and by subpoena, if necessary, acquire records to clearly understand the child’s circumstances. They must consult directly with the child to explain the child’s options prior to their first court appearance. A Judge may want to hear the perspective of the child themselves, during what is known as an “In Camera” proceeding. During these proceedings, only the Judge, the child or children, the AFC, and a stenographer are present. The proceeding typically occurs after a full trial and takes place in the Judge’s chambers. The Judge may use the information gathered from the proceeding to make the best decision for the case. Understanding the child’s circumstances extends to communication with experts who may provide insight into understanding the child as well as active participants in the child’s life. An AFC should maintain contact with the child regularly to remain updated on the child’s circumstances as well as participate in proceedings involving the child. An AFC plays an involved and integral part in their client’s legal situation, and the result of the court matter.
This is not to be considered legal advice. Please reach out to an attorney for information regarding your specific situation.
Lauren E. Karas is an intern concentrating in matrimonial and family law.
She can be reached by phone at 845-764-9656 or by email.