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Should an Attorney for the Child Substitute Judgment in Custody Cases?

May 14, 2018

In the state of New York, the role of a child’s attorney in both custody and visitation cases has developed and evolved over time. The name of the attorney has changed, as these attorneys are now called “attorney for the child(ren)” while the older name of the job was “law guardian.” Many people have historically believed that the main role of the child’s attorney is to determine the child’s best interest, but this is not actually supposed to be the attorney’s job. The role of this attorney has been clearly defined in Rule 7.2 of the Chief Judge.

According to this rule, the attorney for the child is required to advocate with zeal for the position of their client. In other words, the attorney for the child has the exact same role as the attorneys for either parent. If the child has enough maturity to make a voluntary, intelligent, and informed decision, the attorney must advocate for the child’s interests regardless of whether or not the attorney believes the decision is the best one for the child. The judge or referee in the court proceeding will be required to make the final determination on what circumstances are in the child’s interests. This means that even though the attorney for the child is not meant to advocate for the child’s best interests, the best interests of the child are still considered in a court proceeding.

In some cases, the attorney may believe that the child does not have the ability to make an informed and voluntary decision regarding the issues at play. In this case, the attorney must state the wishes of the child and then substitute judgment to advocate for a decision that is different from the client’s wishes. This decision should not be made lightly. If the child in question is capable of understanding the case issues and the possible outcomes of the case, this is enough to be considered competent to make an informed and voluntary judgment.

There is no strictly outlined guide regarding how old a child in New York must be to be competent to make these decisions. In the past, most children age seven or older have been able to formulate their own opinions and desires in custody cases. When dealing with young children or babies, it’s appropriate for an attorney to use substituted judgment. If the attorney believes that the child’s opinion would cause an increased risk for imminent harm to the child, then the attorney can substitute judgment and advocate for the best interests of the child.

Children have a right to be effectively represented by their attorneys, just like all the other parties involved in a case proceeding. If a child is ineffectively represented in court, a custody decision might be reversed when the case is appealed. A child’s attorney should give the child legal counsel which will allow them to make decisions. Sometimes this legal counsel will change a child’s mind from their original opinion or position. However, the attorney also has a responsibility to clarify that they will advocate for the child’s wishes unless they believe the child’s wishes put them at risk of harm.

When an attorney for the child is faced with a case in which they feel they must substitute judgment, they must inform the court that their advocacy is based on substituted judgment rather than the child’s wishes. The attorney must conduct a complete investigation of all the relevant circumstances before they arrive at their position. This includes speaking with the client, examining the evidence, and weighing the best interests of the child. If the attorney is considering the use of substituted judgment for a child who is incompetent to make their own decisions, said attorney may want to get a second opinion from one or more mental health professionals regarding the child’s competency.

When parties in a court proceeding are resolving and litigating a custody case, it’s helpful for the interests of the parties to align with the desires of the attorney for the child. This doesn’t necessarily determine the case, though. There is no guarantee that the position of the child or the child’s attorney will be the one awarded by the judge. The attorneys for the other parties can advocate for their clients’ preferred outcomes as well, including attempting to prove that the wishes of their clients are more aligned with the child’s best interests than the wishes of the child.

To recap:

The role of an attorney for the child is not to advocate for the best interests of the child. Instead, that particular role is filled by whichever individual is acting as referee or judge in the custody proceeding.

The role of an attorney for the child is to advocate for the wishes of the child in a court proceeding. In this way, children are entitled to the exact same representation rights as an adult in a court proceeding. Attorneys are required to advocate for the wishes of their client even if they do not believe those wishes are in their client’s best overall interest.

An attorney for the child does not have to act according to the child’s wishes in the following circumstances:

  • The child is not competent to make informed decisions
  • The child’s wishes put them in imminent danger

If an attorney for the child believes the child is not competent, they must prove that to the court, usually by obtaining the opinion and testimony of one or more mental health professionals.

We are lawyers in New York who specialize in divorce litigation. If you have more questions about the rights of children in custody proceedings, the roles of attorneys for the child, or how to approach your custody litigation, we have experts who can help.

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