Often, the most pressing divorce question for parents is how will custody of the children be determined. In most states, if the couple cannot agree on the custody arrangement, custody will be determined by a “best interest” standard and on a case-by-case basis. In many states, the courts now also consider the wishes of the children. This makes sense. After all, custody impacts children more than anyone else so children should have a say in where they live and how much time they spend with each parent. A child’s voice is not meant to be dispositive on the issue of custody, or the ultimate determining factor. But the child’s opinion is one factor that a judge will consider amongst a variety of other factors. Judges usually want to preserve the status quo, before the divorce action, as long as it worked. It’s crucial for parents to seek advice on child custody to navigate these complexities effectively.
Many jurisdictions appoint free attorneys trained to be AFC (attorneys for children).
This article will explore the role of the AFC in a custody case, and in particular, provide 9 tips for working with one.
It’s important to note that different states have different names for an AFC and the exact scope of the role may vary depending on jurisdiction. (Some states may call them legal guardians or law guardians, etc.) Frequently, attorneys for children may work at a non-profit organization, such as Legal Aid, and the organization has a contract with the court. This is funded by taxpayers. There are also some AFCs who work in private practice. In those instances, the judge may appoint an AFC they know, like, and trust to do a good job on a specific case. Payment is usually allocated between the spouses when a private attorney is appointed.
Attorneys for Children (AFCs) are supposed to engage in direct advocacy for their clients (the children). This does not mean that an AFC acts in the children’s best interests.
Understanding the Role of Attorneys for Children: Advocating for the Child’s Wishes
It is not the attorney for the children’s job to do “what is in the best interests of the child.” You heard me correctly. Many parents get angry (and sometimes even enraged) when the attorney for the child says things in court that the parents are confident that the child does not speak or feel. Sometimes parents have a tough time wrapping their head around the fact that the attorney for the child is not protecting their child’s “best interests.” But the reason is simple — it is simply not their job to do so.
For example, in New York, attorneys for children must engage in direct representation. This means that the attorney for the child must advocate for the child’s wishes, even if the AFC does not agree with the child’s wishes, as long as the child is capable of making a knowing, voluntary, and considered judgment.
Of course, there are exceptions to this rule. You must check the statute in your state to better understand what the exceptions may be. In New York, AFC are allowed to “substitute judgment” or advocate for what they believe is in the best interests of the child, even if it is against what the child says they want.
Consider reading “Child Custody: 6 Things a Divorcing Mom Must Know.”
When Can an Attorney for the Child Substitute Judgment?
The attorney for the child is justified in “substituting judgment” when the child lacks the capacity for knowing, voluntary, and considered judgment or when the child’s wishes will likely result in a substantial risk of imminent or serious harm to the child. In those circumstances only, an AFC may advocate for a position that is contrary to the child’s wishes. The AFC must first inform the court of the child’s preferences, state on the court record that they are “substituting judgment,” and then provide a basis for the substitution of judgment.
What are some specific examples when the Attorney for the Child (AFC) can “Substitute Judgment?”
- The child lacks capacity. This happens when a child is very young and unable to form an opinion due to their age. In many cases, an AFC who represents children who are under 3 years old may substitute judgment. Another example is when the child is mentally impaired.
- The attorney for the child believes that the child is being physically, emotionally, or sexually abused by one parent or a party in the litigation. If the AFC believes that the child’s environment may be dangerous to the child’s physical or emotional well-being, it is a basis for substituting judgment.
- The attorney for the child believes that one parent is engaging in parental alienation. These cases are complex, nuanced, tricky, and heartbreaking. In these complex and highly contentious cases, the judge may also appoint a forensic examiner. If there is a trial, usually a child’s therapist, the parties’ therapists and the forensic evaluator may testify. The forensic examiner will submit a report to the court with their observations, recommendations, and conclusions. The judge may also conduct an “in-camera” with the child.
Learn what parental alienation is in our article, “Parental Alienation Syndrome: What is It? And How to Cope.”
The judge in my custody case wants to conduct an “in-camera” with my child. What does this mean?
This means that the judge will meet with the child, together with the child’s attorney, and talk to the child in an age-appropriate manner in the judge’s chambers. Neither parent will be present during the meeting between the child and the judge. A court reporter will type up the conversation, but the court transcript will be sealed. Neither parent will have access to the in-camera court transcript. They will not be able to read what the child said to the judge.
During the meeting, the judge will ask the child basic questions about their family, their hobbies, their school, and get a better sense of their personality, and living preferences. The attorney for the child will prepare the child for the in-camera interview. In New York, the AFC may submit proposed questions for the judge to ask the child. If there are siblings, each child meets with the judge individually. The judge may ask some of the questions that the AFC posed in their written submissions, but the judge may also ask their questions.
As someone who worked as an AFC for 2.5 years, I participated in many in-cameras. I never had a judge ask all of the questions that I proposed, but I also never had a judge who disregarded all of my proposed questions. The judge is sensitive to how the children may be feeling, and in complex cases, may also rely on specialists to opine on custody/visitation issues. Most judges are friendly and informal with children during the “in-camera”. They understand that children may be apprehensive about the meeting and may also be facing pressure from their parents to “tell the judge certain things”.
The AFC in my custody case has too much power. They do not even have children so why should they represent my child?
AFCs are required to complete extensive training. They are not only taught trial advocacy skills, but they are also taught how to ask questions to children in an age-appropriate way, how to frame their questions in a “kid-friendly” manner and take copious notes on their first-person observations of the child.
Check out “55 Must-Do’s on Your Modern Divorce Checklist.”
Just like a litigant whose conversations with their attorney are confidential, the AFC’s discussion with their child clients is also subject to the attorney-client privilege. The attorney will explain this concept to the child in an easy way for them to understand. The AFC may remind the child that if there is anything that they discussed that the child wishes to keep “private”, and does not want the judge or their parents to hear in court, to let the AFC know.
The AFC cannot disclose the privileged part of the discussion with the court. AFCS should inform their child clients that if someone is harming them, the AFC may have to report it. In larger organizations, many AFCs will work closely with specially trained social workers on cases dealing with severe allegations of abuse, neglect, or parental alienation. It is important to note that AFCs are not mandated reporters, although they may encourage the child to not keep that part of their discussion privileged. It is most often a social worker, school teacher, or doctor who will “call in” suspicions of abuse as they are mandated reporters.
Can I get the Attorney for the Child kicked off my case or fired from their job?
While you are free to file a motion to get an AFC removed from your case, the judge will rarely grant this request. As well, the judge will start questioning your motivations.
99% of the time when a litigant wants the AFC off the case, it is because the AFC has a position that is contrary to the litigant’s goals. The Court is well aware of this.
What is an AFC Supposed to Do?
In New York, AFCs do not provide the court with reports. They are not investigators. However a good AFC will want to meet with their clients regularly. They will ascertain whether their client’s position has changed. And with children, it frequently does! They will also want to speak to the parents and to any collateral sources to form a more holistic approach to the case. They should also obtain essential records — this means reviewing your child’s medical records, therapist’s reports, and school records.
Advice on Child Custody: 9 Tips for Working with an Attorney for Children (AFC)
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Always remember that the AFC is not your attorney or your therapist.
They do not advocate to help promote your personal or your interests. The only person the AFC represents is your child. They also are not there for you to “vent” about your soon-to-be ex-spouse.
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Understand that many court-appointed AFCs are overworked, underpaid, and have massive caseloads.
Make their life as easy as possible by providing them with the necessary information about your child.
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Sit down for an in-person interview with the AFC if possible.
If your attorney consents, it is very helpful for the AFC to speak to both parents to hear both parties’ narratives in a custody dispute. (Frequently, it may be a good idea to have your attorney present with you during the substantive conversation with the AFC.)
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Be organized. Bring any documents that you want the AFC to review.
These may include agreements, pleadings, stipulations, orders of protection, a timeline of events, and collateral sources. Collateral sources are people you suggest the AFC reach out to. These may include other family members, close friends, any witnesses to an important event in question, clergy, the child’s school providers, a child’s therapist, extracurricular activity providers, or service providers if they have special needs.
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Do not fight with the AFC.
If the AFC asks you to sign authorizations or releases like a HIPAA form, do it. If you make it hard for the AFC to obtain basic medical or educational information for your client, you will waste the AFC’s time, energy, and resources trying to obtain simple documents. It will not only be aggravating for the AFC, but the AFC will file a motion for access to the children’s basic records (school/medical/therapy), and almost 100% of the time, the judge will grant the AFC’s request. To do their important job, the AFC must have access to all of the necessary information. If you actively impede that process, the AFC will question why you are not allowing access to the child’s records. This causes suspicions. What are you hiding? Why would you not want your child’s attorney to have access to records?
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Be on time.
Being tardy not only annoys the AFC because their schedule is probably jam-packed, but it also may suggest that you are not considerate of other people’s times and attend other meetings late. (That is never a good look when you want custody and are trying to look like a responsible and organized parent.)
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Be flexible when scheduling.
The AFC will need to schedule ongoing appointments (usually through you) regarding when they can see their client. A good AFC will also try and schedule appointments with the child during both parents’ parenting time to ascertain whether there may be any differences in a child’s behavior/personality under the care of each parent.
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After the pandemic, more meetings with AFCs became virtual. Do not listen in during virtual video calls between your child and their attorney.
Provide the child with privacy when they speak to their attorney. This means not being present in the same room during the call.
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Never ask the child what they spoke about with the AFC. Never coach the child, or “remind the child” to tell the AFC certain things.
Trust me, it will backfire. Most AFCs are well trained and know when a child says something with overly sophisticated language or says something that suggests it came from a parent’s mouth. A favorite example of mine was when a child told me, “My mommy is a bad mommy because she was late picking me up at practice last week.”
If you can relate to this title, check out “41 Things to Remember When Coparenting with a Narcissist.”
What is a “Conflict of Interest” for an AFC?
The most frequent conflict of interest is when an AFC represents siblings who express differing custody preferences. In those instances, the AFC should file a motion to get off the case entirely or to only represent the child(ren) who shares the same opinion. A new attorney should then be appointed for the children with differing positions. This is very important. If you are a litigant and know that your children have differing positions regarding custody preferences, you should consider asking your attorney to bring a motion for a new attorney to be appointed so each of your children is getting the best representation possible.
It is always better to do this early on in a case. As the case gets more complicated, it is harder for a new AFC to get a full handle on the situation, and most importantly, it is also disruptive to your child’s relationship with their current AFC (with whom, they are hopefully, building a trusting relationship with).
Lastly, remember that you cannot control the divorce process, but you can make it easier for your children and yourself by trying to establish a respectful relationship with your child’s attorney.
NOTES
Meredith L. Singer is a former AFC and an experienced New York City divorce attorney. A zealous advocate for her clients, Meredith strives to keep legal representation affordable and accessible. For additional information, schedule a consultation by visiting her website at: www.meredithsingerlaw.com.
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*SAS continues to support same-sex and nonbinary marriage. In this article, however, we refer to your spouse as husband/he/him.