New York Law Journal: Does Empowering Children During Divorce Litigation Serve Them Well?

By Lisa Zeiderman | July 26, 2019

With the expectation that an AFC is to be working with the child client to zealously advocate the child’s position, the balancing of the child’s desires versus the child’s best interest must be the focus.

For better or worse, an unemancipated child of an intact family has little choice but to reside with and accept those decisions made by his/her parents. In intact families, decisions pertaining to time sharing with the parents, a child’s general welfare, education, religious preferences, medical and health issues, camp, and even extracurricular activities are routinely determined by a child’s parents.

Contrast the foregoing with a child of divorcing parents. During a divorce and/or custody proceeding and even thereafter in post-judgment proceedings, a child may voice his/her desires regarding the foregoing issues through his/her attorney, usually appointed by the court.

As recently as June 2019, the Appellate Division Second Dept. held that: “The Family Court erred in failing to give due consideration to the expressed preferences of the child, who was 14 and 15 years old at the time of the proceedings in the Family Court, and who communicated a clear desire to remain in the father’s custody.” Newton v McFarlane, 2019 WL 2363541, *1 (2d Dep’t June 5, 2019) No. 2017-13478, V-20779-10/16I, V-33124-10/16I.

Previously children were represented by law guardians who made a recommendation to Judges as to a child’s best interest. However, in 2007, the role of Attorney for the Child (AFC) was clarified in §7.2 of the Rules of the Chief Judge. An AFC is now required to zealously advocate the child’s position on critical issues such as access with a parent, education, and other major decisions, so that the child’s voice through an AFC may be considered by the Judge.

The history of the development of the AFC is as follows: In October 2007, Chief Judge Judith Kaye, in consultation with the Administrative Board of the Courts, and with the approval of the Court of Appeals, promulgated a new §7.2 of the Rules of the Chief Judge. Section 7.2 was passed in response to a report submitted by the Matrimonial Commission in 2006 to Chief Judge Kaye and closely reflected the recommendations outlined therein. The Commission concluded that the attorney for the child is not and should not be regarded as a fiduciary. (Matrimonial Commission of the State of New York, Report to the Chief Judge of the State of New York (February 2006). Nor was an AFC to be an investigator for the court.

Pursuant to §7.2, the law guardian is now referred to as an AFC and an AFC’s mandate was to advocate the child’s position subject to the limited exceptions set forth below. Like the parents’ respective attorneys, an AFC is subject to the ethical requirements applicable to all lawyers, including but not limited to disclosure of client confidences. 22 NYCRR. As such, when the child client instructs an AFC to keep his/her confidences regarding his/her preferences, an AFC must do so. That means that a parent may not know why, for example, his/her 13-year-old child is voicing a desire not to live with and sometimes even have contact with a parent. 22 NYCRR.

With an AFC advocating a child’s desires, the question presented is what is the proper balance to strike between respecting a child’s desires and preferences and empowering the child to the point where the child believes that he/she has not just a voice but also a vote in making adult decisions that may have a long-term effect on the child.

Significantly, the child’s preference may be based upon misinformation or misplaced views. Additionally, the child may be easily influenced and manipulated. In cases such as the foregoing, an AFC’s role is even more critical as it is an AFC who can advise the child client, while providing the child information and assistance about the court proceedings in an honest, realistic and unbiased manner. In that way, an AFC can help the child formulate his/her desires based upon sound information and then articulate the child’s desires to the court after consultation with the child client.

The new role of the AFC, while respectful to the child’s desires, does pose issues for the parents embroiled in litigation. Parents who want to act like parents are suddenly finding themselves competing for their child’s affection, such as: homework versus computer time; pizza versus vegetables; unlimited video games and computer time versus rules regarding video games and computer use. Curfews fly out the window and the list continues. In certain instances, parents who are concerned that their children’s voice may become too powerful in the courtroom find their role and authority as parents descending into a popularity contest between the parents to gain the child’s approval.

Pursuant to §7.2, an attorney is to fully explain the options available to the child and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests. 22 NYCRR. However, after counseling and advising the client, an AFC must advocate the child’s desires so long as the child is capable of voluntary and considered judgment, even if an AFC believes that what the child wants is not in the child’s best interests.

The New York State Bar Association (NYSBA) determined that it was appropriate and imperative to deviate from the previous standard regarding the role of an attorney for the child, because the NYSBA felt “the child often has a keen insight concerning his or her needs,” and should, therefore, be the driving force in legal proceedings, especially custody matters. New York State Bar Association Committee on Children and the Law, Law Guardian Representation Standards, Vol. II: Custody Cases (3d ed., 2005).

When an AFC believes that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child can then advocate a position that is contrary to the child’s wishes. However, an AFC must inform the court of the child’s articulated wishes if the child wants the attorney to do so, even if that is contrary to the position that an AFC takes in the courtroom. 22 NYCRR. Thus, for example, even when the AFC is aware that a parent is influencing a child’s decision about access or other major decisions that the AFC believes is not in the child’s best interest, the AFC still must advocate for the child’s desire except in the situations set forth above.

The foregoing is not only a departure from the previous standard, which required the AFC to advocate the best interests of the child, even if those interests were at odds with the child’s wishes, but it is also a departure of what children of intact families experience. In some situations, it can result in an empowerment of children that begs the question of why children of divorcing parents are afforded that power and voice that children of intact families often lack.

A significant question to be considered is whether this evolution of an AFC’s role is actually helping the child or instead helping the child achieve what the child wants. For example, there are matters in which one parent has successfully lobbied against the other parent to the point where the child has a strong desire to sever contact with a parent. Are we empowering the child too much when the child’s attorney is now advocating the child’s desire not to see a parent and in fact to slice that parent out of the child’s life? If the child’s AFC is a strong advocate and the parent’s attorney is not as skilled, what is the result? Are we faced with the child seizing the power in the parent/child relationship? Further, given the costs of litigation, the reality may be that a parent simply must cede to the child’s desires before a judge has the opportunity to determine the best interests of the child. For those instances, will the child later resent the parent for not fighting harder? Moreover, while the judge in the matter does determine what he/she believes is in the child’s best interest, this may only occur after a trial of the matter. The reality is that the judge’s decision may not occur for months if not years after certain decisions have been made and realities set a course too late to realistically change.

With the expectation that an AFC is to be working with the child client to zealously advocate the child’s position, the balancing of the child’s desires versus the child’s best interest must be the focus. If there is consensus that the child should remain a child and not make adult decisions, then there must be timely safeguards put into place by the court to guard against lobbying and manipulation of children and inappropriate empowerment of children. The safety mechanism in place for children to remain children is the court. However, for the court to be an effective safety mechanism, it must utilize the arsenal of tools available, including when appropriate the appointment of forensic psychologists to perform an evaluation, a full development of a case before the court and importantly an in camera interview with the child so that the court can hear the reasoning behind the child’s voice and ultimately make a decision based upon the child’s best interest. Most of all, while the child should understand that his/her voice will be heard, the child must understand that the court will ultimately make a decision based upon the child’s best interest.