Should an Attorney for the Child Substitute Judgment in Custody Cases?

Over time, the role of attorney for the child in custody and parenting time (visitation) cases has evolved and developed in New York. Their name has changed as well since they are properly called attorney for the child(ren) now whereas the job used to be known as “law guardian”. While many used to believe the role of the attorney for the child was to determine what’s in the best interests of the child, it is clear now that this is not supposed to be their job. The attorney for the child’s role is defined in Rule 7.2 of the Chief Judge in New York.

The rule requires the attorney for the child, like an attorney for any other party in the case (such as mom or dad lawyer’s), to advocate for their client’s position with zeal. If the child is mature enough to be capable of making a knowing, intelligent and voluntary judgment, even if the attorney for the child believes the child’s wishes are not in his or her best interest, they should advocate for what the child says theywant. The trier of fact, be it a judge or a referee, however is required to make decisions on what they determine is in the child’s best interests. So the best interests standard still controls, it however is not the attorney for the child’s job, usually, to advocate for the best interests.

If the attorney, though, believes that the child lacks the ability to make a voluntary and knowing decision on the issues, they are to state the child’s wishes (provided the child wants his/her wishes known) and then the attorney for the child can substitute judgment and advocate for a result that is contrary to what their client expresses are his or her wishes. This is not to be a light decision. If the child can basically understand the issues in the case and the possible outcomes, that is to be enough to meet the standard required for the voluntary and knowing judgment.

While there is no hard and fast rule in New York custody cases as to what age a child is able to make these decisions, the cases seem to stand for the proposition that most children seven and above are capable of formulating their own desires in custody cases. In the cases of babies or very young children, substituted judgment is more likely to be appropriate. If the child’s position, in the attorney for the child’s opinion, would put the child at substantial risk of imminent harm, then the attorney for the child can substitute judgment and advocate for what he or she believes is in the child’s best interests.

Children are entitled to effective representation by their counsel, just like any other party. Ineffective representation is a reason to reverse a decision of a trial court on appeal. Attorneys for the children should counsel their clients to help them make decisions that may lead children to different positions than initially articulated. But, the attorney also must make it clear to the child that they will advocate for what the child wants, unless the substantial risk of imminent harm exception applies.

In cases where the attorney for the child deems it proper to substitute their own judgment, they are supposed to inform the court that substituted judgment is the basis for their advocacy. The attorney should have come to his or her position after a complete investigation, which is to include speaking with their client, looking at the evidence, and weighing it against the best interest of the child. The attorney for the child should consider seeking the input of mental health professionals to determine whether they should substitute judgment or not for a child they believe not to be competent.

While in litigating and resolving a child custody and parenting time case it helps when one’s interests are aligned with the attorney for the child, it is not determinative of the case. The lawyers for the other parties can help shape and advocate for the outcome that their clients want using different skills and tools. Please see our other articles and website for more information about various family law and matrimonial topics. Feel free to call about your free initial consultation. It will be our pleasure to try to help!

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