What is An Attorney for the Child and Why Do We Need One?
Attorneys for the Child are commonplace in the New York Family Court and Matrimonial Court system. They are a necessary and helpful part in reaching a resolution that is in the child or children’s best interest when it comes to child custody, family offenses or other relevant court proceedings. The New York courts are becoming more and more liberal in appointing children their own attorneys to represent their interests in pending court cases. Where Judges and jurists once waited until a child was at least three years old or could properly articulate helpful information, these days attorneys for children are appointed for kids as young as one years old.
What Does an Attorney for the Child Do?
An Attorney for the Child will meet with the child and gain some perspective on his or her position or what is in his or her best interest. If the child is under the age of seven years old or lacks the capacity to articulate his or her position regarding the pending issue, it is up to the Attorney for the Child to ask the right questions and decipher what is in the child’s best interest. An Attorney for the Child will not ask direct questions regarding the litigation, as he or she is trained to keep the child as removed from the legal system as possible. However he or she may ask things like “What do you like to do with your mom/dad? What’s your favorite thing about your mom/dad? What’s your least favorite thing about your mom/dad?” He or she may also allow the child to use a grading system on some over aspects of the relationship. While the Attorney for the Child is aware that not even response can be taken literally, the Attorney for the Child is trained to know whether there is a loving, caring relationship present or if there are bigger issues that need to be explored.
Where a child is over the age of eight years old and has the capacity to articulate his or her position, it is the Attorney for the Child’s job simply to advise the court of what the child wants. Depending upon the age of the child, the Attorney for the Child may not ask directly for the child’s preference, but instead may ask what the current schedule is like, how the child likes that schedule and what, if anything, the child would change with respect to the parenting schedule or relationship with his or her child. In these circumstances, the Attorney for the Child may not even agree that what the child is asking for is actually in his or her best interest, but the Attorney for the Child may still advocate for the child’s wishes, unless he or she believes that there is some undue influence.
What if There is More than One Child?
If a couple has more than one child involved in the litigation, the Attorney for the Child may represent all of the children, so long as the children’s wishes are aligned. If the children have different perspectives or express different wishes the Attorney for the Child will advise the court that there is a conflict and a secondary attorney will be appointed to represent the other child or children.
Will the Child(ren) be Required to Attend Court Appearances?
In New York, the courts prefer to keep to the child or children as removed from the actual legal process as possible. This means that the parents will attend all court appearances, while the children will almost never appear in the courthouse. A child will not be asked to testify under oath in a court hearing or trial. In limited situations, when the Judge or jurist believes that it is necessary or helpful he or she may request an “in camera” appearance.
What is an “In Camera”?
Where a Judge or jurist thinks that hearing the perspective of the children or children directly will be helpful in guiding the parties or reaching a decision as it relates to child custody or other related matters, the court may schedule a time for the children or children to appear in court. During these court appearances, the parents and their attorneys will not be present. Rather, it will be a meeting between the Judge (or jurist) the child(ren) and the Attorney for the Child. The meeting will be on the record, meaning that there will be a written or electronic recording of the meeting, but the minutes of that minute will be sealed. Both parents attorney’s will generally be allowed to submit written questions that they are asking the Judge (or jurist) to address with the child(ren). However, it is solely up to the Judge (or jurist) to decide what subjects will be broached. These meetings are generally meant to be made as comfortable as possible, often providing the children with candy or tours of the courtroom in order to make them more comfortable with the process. The Judge (or jurist) can then use the information he or she obtained during the “in camera” to help decide the outcome of the case.
What Information Can the Attorney for the Child Share with the Court and/or Attorneys?
Attorney/client privilege exists with children and their lawyers, just as it does with adults. In order for an Attorney for the Child to share information with the attorneys and the Court, he or she must receive express consent from the child(ren) to share certain information. If the Attorney for the Child receives information that elicits the possibility of abuse or neglect, it may be information that needs to be shared with a judge or with child services.
How Does a Child Get an Attorney?
In New York, Attorneys for the Child are generally not hired by parents, but rather, appointed by the Supreme or Family Court through their panel system. Attorneys with the requisite experience and training may apply to become panel attorneys, a list which is referenced by the Judges and jurists when selecting representation for a child or children.
Who Pays for the Attorney for the Child?
Depending upon the county and the parties’ finances, the attorney for the child may be appointed and paid for by the State of New York or paid privately by the parties through an order of the court.
Why Does the County Matter?
In places like Kings County or Bronx County, the Family Court works in conjunction with the Children’s Law Center (also known as “CLC’), a non-profit law firm that represents children in child custody, family offense, ACS and other relevant matters. When an attorney for the child is appointed through CLC there is no cost associated with this representation.
How Are Fees Divided Where the Court Appoints a Privately-Paid Attorney for the Child?
When determining whether the Attorney for the Child should be paid privately or government funded, the court will request information regarding the parties earnings and finances. One significant implication that the Attorney for the Child should be paid privately is whether or not the parties are paying their own private representation.
In the event that the parties are found to have the resources to pay privately for the Attorney for the Child, he or she will be paid based on the parties pro rata shares. This means that the court will calculate the ratio of one parent’s income to the other and order that the parties pay their respective percentage. This cost is often “subject to reallocation,” which means that if the courts find out the parties have different earnings down the line, the percentage and payment will be readjusted.