The Role of the Attorney For The Child

In a contested custody case when a child expresses a preference to live with one parent over the other must the child's attorney support that position? The responsibility of the attorney for the child, formerly known as the Law Guardian, was reviewed in an upstate Family Court case, Michael H. v. April H, NYLJ 1202534885109 (2011)

In 1999, the parents were awarded joint custody with primary residential custody to the mother. in August, 2011 the father filed a modification petition since he claimed the child had been living with him since June, 2011 when he says the mother essentially kicked the child out of her home.

At the modification of custody trial, the judge took the child's testimony privately in chambers with the attorney for the child present. The 14 year old child "expressed a clear position to the Court and a reasonable basis for his position". Surprisingly, the child's attorney in closing argument advocated for the exact opposite of the client (the child's) wishes.

The judge declared a mistrial due to the attorney's error and stated that the attorney for the child must be directed by the wishes of the child unless the child is not capable of knowing, voluntary and considered judgment or that the child's wishes are likely to result in "substantial risk of imminent, serious harm to the child".

Unrelated to the above case, the attorney for the child is often consulted to help facilitate scheduling of parenting time for parents that are unable to reach their own agreement. The attorney for the child will often report to the parents what the child's wishes are for parenting time as well as place of residence.