The Role Of The Attorney For The Children

Most contested custody cases will involve the appointment by the Court of an Attorney For The Children ("AFC"). If the case is pending in the Family Court the attorney's fees are paid by the State. If the appointment is in the Supreme Court (usually in a pending contested divorce case) the fees are paid by the parties in accordance with a Court Order allocating the fee.

If the children are old enough to express their preferences, it is the job of the AFC to advocate for their desires. So if a child tells their attorney that they want to continue living with one parent or that they are more comfortable with one parent over the other, the AFC is to be their advocate. However, there are exceptions where the AFC may substitute their own judgment for the desire of the child. The exceptions are very limited and include the following:

1. If the attorney believes that the child lacks the capacity for knowing, voluntary and considered judgment;

2. If following the child's wishes would likely result in a substantial risk of imminent serious harm to the child.

So if the child is too young to have stated wishes or lacks the intelligence to understand the issue or the child's wish would place the child in danger, then the AFC must disclose the child's wishes and then explain why the attorney for the child is substituting their professional judgment.

Recently the Appellate Division reversed a trial decision of a change of custody because while the AFC stated the children's preferences, the AFC did not properly advocate at the trial for the children's preferences. The AFC did not offer evidence to support the children's wishes and was believed by the Appellate Division to have in conjunction with the other parent's attorney to have objected and attempted to make it more difficult for the parent that the children desired to live with to introduce and present evidence.

The Appellate Division reversed the decision, sent the case back for a new trial and ordered the appointment of a different AFC. While such a decision is somewhat rare, the AFC is constrained to work within the rules of representation and can only go against their client's wishes in limited circumstances.