In some cases of child custody or in a divorce where there are minor children, the court in question may appoint an attorney for the child involved. This can happen either when a parent, guardian or their lawyers asks for the child(ren) to be given legal guidance, or when the court believes your child may be in need of a lawyer. In his time as a family law and matrimonial attorney, Darren M. Shapiro, Esq. has worked alongside attorney for the children attorneys and dealt with the issues that can arise when their views are not in line with his clients.
As time has passed, the role that attorneys play in representing a child during visitation, or child custody cases has seen some evolution within New York. Attorneys for children were once known as “law guardians”, and while many people believed that the job of this legal professional was determining the best interests of their young client, it is clear now that this isn’t the case. The Chief Judge in New York Rule 7.2 outlines that the attorney for the child – similarly to an attorney for any party in any legal case, must advocate for the client’s position within the best of their ability. It is the job of the trier of fact (judge or referee) to determine the best interests of the children after assessing all sides of the issues including the mother’s, the father’s, and the children’s.
If a child in a case of divorce or child custody proceedings is sufficiently mature and educated to make an intelligent, voluntary and well-informed judgment, the attorney should advocate for his or her wishes. This applies even if the attorney considers the decision the child has made to not be in his or her best interests. It is the responsibility of the trier of the fact, whether that is a referee or judge, to make decisions about what can be considered as in the best interests of the child. The best interest standards still controls in these proceedings, but it is not the attorney for the child’s job to advocate for the child’s best interests.
In a situation wherein the attorney appointed to a child does not think that the child can make an informed and voluntary decision regarding the issue(s) they will be required to announce the child’s wishes, (so long as the child wants them to be known). Beyond this, the child’s attorney may then advocate for a result that does not align with the wishes of their client. The decision to engage in such a tactic should not be made lightly. If the child in question is capable of understanding the circumstances of the case at a reasonable level, and any possible outcomes, this should be enough to make a knowing and voluntary judgment.
In cases of custody in New York, there is no underlying rule about the age at which a child becomes capable of making important decisions such as this. However, the cases and evidence suggests that children at the age of seven and upwards are able to formulate decisions about what they want from such cases. In regards to very young children or babies, substituted judgment is likely to be deemed more appropriate. Regardless of the child’s age, if their position could put them at significant risk of harm in the opinion of the attorney for that child, then the attorney may substitute judgment and advocate for the result that they believe to be in the child’s best interests.
Similarly to any party within any legal proceeding, children have the right to access effective counsel and representation. Just as Darren Shapiro would offer guidance and assistance to his clients throughout a child custody, divorce, or family law case, children must receive the same professional input. Children who have been ineffectively represented may be able to appeal to reverse decisions made by the court.
Attorneys that advocate on the behalf of a child should always offer counsel and guidance to their clients that can help them in making informed decisions for their well-being and future circumstances. However, the attorney that is appointed to a child must also explain to their client that their purpose is to advocate primarily for what that child wants. This is applicable in all cases unless the child in question is at significant risk of harm as a direct result of their decision or desired outcome.
In circumstances wherein the child’s attorney deems that it is appropriate for him or her to substitute their own judgment, they will be required to inform the judge and court that substituted judgment is forming the basis of their advocacy. In these circumstances, the attorney in question should have been able to come to this position about a case following a complete and thorough investigation, which includes looking at the evidence, speaking to their client at length, and weighing the information against the best interests of the child. In some cases, attorneys for children can find it helpful to seek the additional counsel of professionals in mental health when it comes to determining whether judgment should be substituted for a child that they do not consider to be competent enough to make a safe and healthy decision.
When resolving and litigating a case of child custody and visitation, it can be helpful for one’s interests to be aligned with those of the attorney appointed to the child, however this doesn’t always determine the case. Attorneys for the other parties within a case, such as Darren Shapiro, can play their part in advocating for the result their clients’ want through the use of carefully honed professional tools and skills. To learn more about attorneys for children, litigation, child custody, parenting time, and family law, please reach out to us, or visit our blog. If you are interested in contacting Mr. Shapiro about a child custody case, please contact us and let us know how we can help, we would be happy to speak with you regarding your needs.