If you and your partner are fighting over custody or visitation in court, there is a good chance the Judge will appoint a lawyer to represent your child. This lawyer is known as the Attorney for the Child (AFC). The AFC’s role is defined by Rule 7.2 of the Rules of the Chief Judge.
In most circumstances in New York, the Attorney for the Child advocates for what your child wants, not your child’s best interests. This sometimes is referred to as “direct advocacy.” The Rules of the Chief Judge do not restrict this by age. You may be thinking that sounds insane. How could a child at eight, nine, or ten years old get that kind of voice in the litigation? What about a six-year-old? The rule of direct advocacy technically still applies. The job of the AFC is to represent your child’s wishes to the Court. The AFC is only allowed to substitute their own judgment in limited circumstances, such as where a child is very young, or for some reason lacks capacity, or their wishes could result in imminent harm. The Court will direct payment of the AFC, typically apportioning the cost between you and your co-parent based on income.
The AFC is not a social worker, psychologist, or mediator. They are your child’s lawyer. That comes with the same attorney-client privilege granted to parties and their respective attorneys. The AFC often meets with their client to discuss life at home, school, extracurriculars, and more to get to know your child and therefore be able to better advocate for their wishes. These meetings are done without either parent present to ensure the child is able to speak freely and ensure attorney-client privilege.
An AFC can be crucial in high conflict cases. This way there is someone who can advocate for the child’s wishes when there is tension or disagreement between parties. The decisions made in a divorce, custody, or visitation battle not only have an effect on the parties but on their children as well. The AFC can provide referrals to beneficial services for the family, as well as try and prevent the child from being placed in the middle of the conflict. The AFC can bridge the gap between parties by finding a balance and making sure the child’s wishes are being heard and preserved.
Sometimes the impending appointment of an AFC can help parties move towards settlement. When parents realize their child will have a lawyer that they must pay in addition to their own lawyers, they may become less entrenched in their positions previously thought to be “deal breakers.” Some parents realize that appointment of an AFC will draw the children into the conflict and want to avoid that.
Greenblatt Law has handled countless high conflict custody cases involving AFCs. Elysa Greenblatt serves as an AFC in New York County Family and Supreme Courts and can answer any question you have about the role of an AFC. Feel free to reach out; contact us today.
