In contested divorce or custody cases in New York, the Court will ordinarily issue an Order appointing an attorney for your child, or children. The attorney for the child (AFC) is a licensed attorney in the state of New York who will meet with your children and report their desires regarding custody to the Court. The concept behind the appointment of attorneys for children is to give the children a voice in the divorce proceeding. The AFC reports the children’s wishes to counsel and the Court, which usually helps settle custody more quickly, as the Court relies heavily on the AFC in making custody determinations.
There can be positives and negatives to an AFC’s involvement in your case. First, an AFC is tasked with not simply asking your children who they want to live with, but finding out what the children’s reasoning is behind their decisions. Ordinarily, an AFC will meet with your children when your spouse drops them off and also when you drop them off to see whether your children say something different when coming from a different parent. This can help determine whether one parent is coaching the children to say certain things to get custody, which happens frequently in contested custody cases. The AFC will also meet with you, your spouse and any live-in caregivers to seek additional information to help them make their determinations. The AFC can also review medical records, school records and other pertinent information which might help them to understand your family and the needs and wishes of your children.
An AFC also has the ability to substitute their judgment for that of your child. If your child is too young to form an opinion on custody or is insisting on living with a particular parent, to their detriment, the AFC can step in and explain to the Court why they believe the children’s wishes to be an improper resolution to custody. When substituting judgment, the AFC must explain to the Court what the children have requested, and why they believe that to be unsuitable.
Perhaps the most obvious drawback to an AFC is the added expense involved with having another attorney involved in the matter. Though court appointed and usually chosen by the court, AFC’s are paid for by the litigants. Litigants are ordinarily responsible for the expense of the AFC in proportion to their respective incomes, though it is in the Court’s discretion to determine how the AFC will be paid. Thus, if you are the sole wage earner for the family, you may find yourself paying for 100% of the AFC’s costs, even when your spouse is speaking to or meeting with the AFC. However, hearing what the AFC has to say often settles cases much more quickly than without their insight, so you can save in long term litigation costs by having an AFC involved.
Additionally, the majority of AFC’s take their role in the litigation very seriously and do their jobs well, without bias. However, AFC’s, just like judges, are human. We are all capable of making mistakes and being swayed by biases, both known and unknown. For this reason, it is extremely important for you and your attorney to maintain and amicable relationship with the AFC from the start of the case. AFC’s can be extremely helpful and can also provide invaluable insight into the innerworkings of your custody case. It is important that you strategize with your attorney prior to any meeting you have with your child’s attorney to make sure that you’re putting your best foot forward.
Overall, an AFC can be a very positive addition to your case. They ensure that your children have a voice in the proceeding and that the Court knows what they want. This can be especially helpful if your spouse is influencing the children against you or is otherwise coaching them. In most cases, the AFC helps settle custody more quickly, which saves in both costs and the emotional toll that contentious custody and divorce litigation can take on you and your family. If you would like more information about AFC’s or your divorce or custody matter, one of our attorneys would be happy to have a consultation with you to discuss further.