The Role of the Attorney for the Child

Faith Miller Managing Partner at Miller Zeiderman LLP, authors the latest article for her blog. Read the full article below.

What is an AFC?

In a divorce that involves custody of a child or children, the Court seeks to determine “the best interests of the child.” In New York, the Court’s interest in the health and well-being of children overrides the interest of the parents.

Most parents believe they are acting in their children’s best interests, but in a divorce parents often don’t agree on what is in their children’s best interests. If the parents cannot agree, or one parent alleges that the other’s conduct is harmful to the children, the court may appoint an attorney to represent the children – an Attorney for the Child (AFC). This attorney is chosen by the Court. However, counsel for each parent may be permitted to suggest an attorney to serve as the AFC.

What is the role of the attorney for the child?

The role of an AFC is to represent your child with an undivided loyalty and to advise the court of your child’s wishes. The AFC acts solely on behalf of your child to represent his or her legal interests and support his or her wishes. The AFC is not permitted to “substitute judgment” over the expressed wishes of the child unless the child is very young or has impaired reasoning ability.

Who pays for the Attorney for the Children?

Usually, parents are directed by the Court to pay the legal fees for the AFC. However, it is important to understand that nothing a parent says or communicates to the AFC is confidential. The confidentiality of the attorney-client relationship exists only between the AFC and the child. Moreover, the AFC is not involved in, and will not take a position on, the financial aspects of the divorce.

Why should I Hire an Attorney for my Child?

To avoid putting your children in the middle of your divorce and risking an unwanted outcome, it’s crucial to hire an attorney who can help you understand and advocate for what is in your child(ren)’s best interests.

Parents contemplating divorce may be worried if they anticipate or experience challenges such as:

·      you and your spouse are hostile toward each other

·      your spouse is likely to resist a parental custody agreement

·      your spouse has been verbally or physically abusive to the children

·      you have concerns about your spouse’s ability to care for the children’s daily needs

·      you fear your spouse is trying to alienate your children from you

·      your spouse may try to call a witness to testify against your parenting abilities

·      you have inadvertently already said something to an AFC that may be detrimental to your own best interests and may be used against you

·      you worry how to present your parenting strengths and weaknesses as well as your spouse’s parenting strengths and weaknesses

The decisions made during your divorce affect not just your future, but also your child’s. It is crucial to have an attorney who understands how to balance both while advocating for a fair and equitable resolution.