By Samuel J. Ferrara
Partner, and Co-Director of the Matrimonial Law Department
Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP
I. The Role of the Attorney for the Child
•§ The role of the attorney for the child is to serve as a child's lawyer. The attorney for the child has the responsibility to represent and advocate the child's wishes and interests in the proceeding or action.
•§ Family Court Act § 241 sets forth the statutory authority for the appointment of lawyers for children in court proceedings. The statue declares that a system of lawyer's for children is necessary for minors, who require the assistance of counsel to help protect their interests and express their wishes to the court.
•§ New York enjoys a long tradition of leadership in providing lawyers for children in court proceeding. This tradition was recently strengthened through a series of important initiatives by the state's Judicial Branch to clarify the role and responsibility of the attorney for the child.
•§ The central initiative was enactment of a court rule that sets out the function of the attorney for the child. The new provision, § 7.2 of the Rules of the Chief Judge, was promulgated by Judith S. Kaye, Chief Judge of the State of New York, on October 17, 2007, and became effective immediately.
•§ § 7.2 states that in juvenile delinquency and person in need of supervision proceedings, "the attorney for the child must zealously defend the child," and that in other proceedings, the child's attorney "should be directed by the wishes of the child" if "the child is capable of knowing, voluntary and considered judgment," even if the attorney "believes that what the child wants is not in the child's best interests."
•§ Under § 7.2, the attorney "would be justified in advocating a position that is contrary to the child's wishes" when the attorney "is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child."
•§ Under the rule, an attorney must explain fully the options available to his child-client and may recommend to the child what the attorney thinks would be best. However, only where the attorney is convinced the child is not capable of making his own decisions or if there is a substantial risk that the child will be exposed to imminent grave physical danger if the court adopts the child's expressed preference, may the lawyer inform the court of his own opinion.
•§ The rule places the work of a child's attorney squarely within the framework of the classic attorney-client relationship, subject to the obligations of zealous advocacy and adherence to ethical standards applicable to all attorneys. The rule emphasizes the important of the collaboration between the attorney and the child in establishing and advancing the child's position. In essence the rule provides that, as with all lawyers, attorneys for children are to discharge their duties in a manner that responds to the unique needs and circumstances of each client.
§7.2 Function of the attorney for the child:
(a) As used in this part, "attorney for the child" means a law guardian appointed by the family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.
(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.
(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.
(d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position.
(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.
(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.
(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position.
•§ Another recent change was the adoption of the recommendation of the Statewide Committee to seek legislation changing the term "law guardian" to "attorney for the child." This change was codified in a bill signed by former Gov. David Paterson, A7805B/S5461-B, which strikes the phrase "law guardian" from nearly two dozen sections of the CPLR, Domestic Relations Law, Executive Law, Judiciary Law, Family Court Act and other statutes and replaces it with "attorney for the child" or "counsel for the child."
•§ The impetus for this change was to remove the source of confusion concerning the function of lawyers who represent children. For many participants in proceedings involving children, "law guardian" suggests that the lawyer is a guardian ad litem rather than an advocate for the child. This misunderstanding can have a significant impact on a proceeding, leading to conflicting expectations about the objectives and actions of the child's lawyer.
•§ Replacing the ambiguous "law guardian" with "attorney for the child" leaves little doubt that the function of an attorney for the child is to advocate for the child's wishes and interests in the proceeding.
II. The Appointment of the Attorney for the Child
•§ Family Court Act § 249(a) mandates that an attorney for the child be appointed in juvenile delinquency proceedings, person in need of supervision (PINS) proceedings, child protective proceedings, termination of parental rights proceedings, contested adoption proceedings, foster care proceedings, and proceedings pursuant to FCA § 158 (protective custody of material witnesses).
•§ The court has the discretion to appoint an attorney for the child in any other proceeding in which the court has jurisdiction. This most frequently occurs in custody disputes.
In Vecchiarelli v Vecchiarelli, 238 AD2d 411 (2d Dept. 1997), upon reviewing the record, in the court's view, it was an improvident exercise of discretion for the Supreme Court to fail to appoint Law Guardians for the children prior to a custody hearing. The Appellate Division stated, "The Law Guardians would have been able to recommend alternatives for the court's consideration and to advocate for the children in these proceedings." Citing Blauvelt v Blauvelt, 219 AD2d 694 (2d Dept 1995).
Likewise, in Betts v Betts, 2008 WL 2066937 (2d Dept, May 13, 2008), in a contentious matrimonial action, the appointment of an attorney for the children was warranted as there were allegations that the children were subjected to inappropriate corporal punishment. The Supreme Court's order was reversed for that limited reason.
•§ Family Court Act § 249(b) encourages the continuity of representation. FCA § 249(b) states: "In making an appointment of a law guardian pursuant to this section, the court shall, to the extent practicable and appropriate, appoint the same law guardian who has previously represented the child."
In Kristi L.T. v Andrew R.V., 2008 NY Slip Op 00933 (4th Dept, February 1st, 2008), the Appellate Division, citing FCA § 249(b), found that it was error for the Family Court to appoint a new attorney for the child when the mother objected to the appointment of the attorney for the child that represented the child in two previous matters. The prior attorney for the child was available and should have been reappointed.
•§ The courts have established that a child is entitled to independent representation. This principle was firmly established in Fargnoli v Faber, 105 AD2d 523 (3d Dept 1984), a bitterly contested visitation case, in which the trial court recused the Law Guardian retained by the parents and assigned a new Law Guardian. The Appellate Division held that parents may not "become involved in the representation of the children because the appearance or possibility of a conflict of interest or likelihood that such interference would prevent the children's representation from being truly independent."
Likewise, in Matter of David D., 6 Misc 3d 1008(A) (Fam Ct, Suffolk County 2004), where the parents hired an attorney to represent their son who was charged as a juvenile delinquent for alleged acts of sex abuse against his younger sibling, the Family Court held there was a conflict of interest as the circumstances of the case cast doubt on whether the attorney hired by the parents could "provide truly independent legal representation." Therefore, the attorney was removed and was substituted by an Law Guardian appointed by the court.
In Matter of Brittany W., 25 AD3d 560 (2d Dept 2006), the Appellant Division found no evidence that the Law Guardian had a conflict of interest or failed to diligently represent the best interests of the child. Contrary to the appellant's contention, the Law Guardian did not show bias against him by adopting a position favoring the subject child's current and almost exclusive custodial placement. The Court noted that "the role of the Law Guardian is to be an advocate for and represent the best interests of the child, not the parents".
III. Responsibilities of The Attorney for the Child
•§ In 2007, the Administrative Board of the Courts approved the Statewide Law Guardian Advisory Committee's Summary of Responsibilities of The Attorney for the Child.
•§ The statement outlines the essential steps that generally form the core of effective services by the child's attorney, including early representation, regular client consultation, and active participation in all phases of the proceeding.
•§ While the activities of the attorney for the child will vary with the circumstances of each client and proceeding, in general those activities, will include, but not be limited to, the following:
(1) Commence representation of the child promptly upon being notified of the appointment;
(2) Contact, interview and provide initial services to the child at the earliest practical opportunity, and prior to the first court appearance when feasible;
(3) Consult with and advise the child regularly concerning the course of the proceeding, maintain contact with the child so as to be aware of and respond to the child's concerns and significant changes in the child's circumstances, and remain accessible to the child;
(4) Conduct a full factual investigation and become familiar with all information and
documents relevant to representation of the child. To that end, the lawyer for the child shall retain and consult with all experts necessary to assist in the representation of the child.
(5) Evaluate the legal remedies and services available to the child and pursue appropriate strategies for achieving case objectives;
(6) Appear at and participate actively in proceedings pertaining to the child;
(7) Remain accessible to the child and other appropriate individuals and agencies to monitor implementation of the dispositional and permanency orders, and seek intervention of the court to assure compliance with those orders or otherwise protect the interests of the child, while those orders are in effect; and
(8) Evaluate and pursue appellate remedies available to the child, including the expedited relief provided by statute, and participate actively in any appellate litigation pertaining to the child that is initiated by another party, unless the Appellate Division grants the application of the attorney for the child for appointment of a different attorney to represent the child on appeal.
(Summary of Responsibilities of The Attorney for the Child)
•§ The attorney should not be merely a fact-finder, but rather should zealously advocate a position on behalf of the child. The child's attorney shall, to the greatest possible extent, maintain a traditional attorney-client relationship with the child.
•§ The attorney owes a duty of undivided loyalty to the child and shall advocate the child's position. In determining the child's position, the attorney for the child must consult with and advise the child to the extent and in a manner consistent with the child's capacities and have a thorough knowledge of the child's circumstances.
•§ There is a presumption that the attorney will adhere to the direction of a child client in the same manner that the attorney would follow the direction of a competent adult.
•§ Unless a child is not capable of expressing a preference, or clearly and unequivocally lacks the capacity to perceive and comprehend the consequences of his or her decisions, the attorney must not "substitute judgment" in determining and advocating the child's position.
•§ In all circumstances where an attorney is substituting judgment in a manner that is contrary to a child's articulated position or preferences, the attorney must inform the court that this is the basis upon which the attorney will be advocating the legal interests of the child. The attorney should be prepared to introduce evidence to support the attorney's position. The attorney also is required to inform the court of the child's articulated position, unless the child has expressly instructed the attorney not to do so.
•§ When considering whether the child has "capacity to perceive and comprehend the consequences of his or her decisions," the lawyer should not make judgments that turn on the level of maturity, sophistication, or "good judgment" reflected in the child's decision-making. All that is required is that the child have a basic understanding of issues and consequences. The attorney may not use substituted judgment merely because the attorney believes that another course of action would be "better" for the child. Thus,
most children ages seven and above, and sometimes even younger, will have the capacity to make decisions that bind the lawyer with respect to fundamental issues such as where the child should live.
•§ The attorney for the child is required to actively represent their client. The court in Koppenhoefer v Koppenhoefer, 159 AD2d 113 (2d Dept 1990) held that the Law Guardian must act as "champion of the child's best interest, as advocate for the child's preferences, as investigator seeking the truth on controverted issues, or may serve to recommend alternatives for the court's consideration. (See also General v General, 31 AD3d 551 (2d Dept 2006), in a
custody proceeding, the Family Court's failure to appoint a law guardian to represent the child's interests was an abuse of its discretion).
In B.A. v L.A., 196 Misc 2d 86 (Fam Ct, Rockland County 2003), the court stated that "the role of the law guardian is not merely being a neutral by looking out for the best interests of the child, but as an advocate participating fully in the pre- trial stages and trial stages of any proceedings."
•§ The attorney should ensure that facts in support of the child's position which may be relevant to any stage of the proceeding are presented to the court. To that end the attorney should:
•§ Meet with the Client- Establishing and maintaining a relationship with a child is the foundation of representation. Therefore, irrespective of the child's age, the attorney should meet with the child prior to court hearings and when apprised of emergencies significant events impacting on the child, and additionally, if appropriate, should maintain telephone contact.
Some attorneys prefer to visit their child clients in his or her current living situation; others prefer to meet clients in their offices or a neutral setting. The guidelines do not dictate where meetings with the child client should occur, as long as visits facilitate communicate with the child, and further the attorney's ability to represent the child's legal interests.
The lawyer's duties as counselor and advisor include:
(1) Developing a thorough knowledge of the child's circumstances and needs;
(2) Informing the child of the relevant facts and applicable laws;
(3) Explaining the practical effects of taking various positions, which may include the impact of such decisions on the child and other family members or on future legal proceedings;
(4) Expressing an opinion concerning the likelihood that the court will accept particular arguments;
(5) Providing an assessment of the case and the best position for the child to take, and the reasons for such assessment; and
(6) Counseling against or in favor of pursuing a particular position, and emphasizing the entire spectrum of consequences that might result from assertion of that position.
•§ Investigate - to advocate for the child's position, the attorney should conduct thorough, continuing, and independent investigations and discovery which may include, but should not be limited to:
(1) Reviewing the child's social services, psychiatric, psychological, drug and alcohol, medical, law enforcement, school, and other records relevant to the case;
(2) Reviewing the social services, psychiatric, psychological, drug and alcohol, medical,
law enforcement, school, and other relevant records of any other parties in the case;
(3) Contacting lawyers for other parties and for background information;
(4) Contacting and meeting with the parents/legal guardians/caretakers of the child, with permission of their lawyer; and
(5) Obtaining necessary authorizations for the release of information, or, where a release cannot be obtained, serving subpoenas for necessary records, such as school reports, medical records and case records.
•§ File Pleadings- The attorney for the child should file petitions, motions, responses or objections as necessary to represent the child. The filing of such papers can ensure that appropriate issues are properly before the court and can expedite the court's consideration of issues important to the child's interests. Relief requested may include, but is not limited to:
(1) An increase, decease, or termination of contact or visiting;
(2) Restraining or enjoining a change of placement;
(3) Contempt for non-compliance with a court order;
(4) Child support; and
(5) Dismissal of petitions or motions.
•§ Negotiate Settlements - The attorney for the child should participate in settlement negotiations to seek expeditious resolution of the case. The attorney should use suitable mediation resources and, where appropriate, ask the court to authorize the use of conferencing or mediation to "further a plan for the child that fosters the child's health, safety, and wellbeing." F.C.A. § 1018.
•§ Court Appearances - The attorney for the child should attend and fully participate in all hearings and in all telephone conversations or other conferences with the court in which the child is at issue.
•§ Client Explanation - The attorney should explain to the client, in a developmentally appropriate manner, what is expected to happen before, during, and after each hearing. Post-court appearance updates should be provided to the child as soon as possible.
•§ Motions and Objections -The attorney should make appropriate motions, including motions in limine and evidentiary objections, to advance the client's position at trial or other hearings. If necessary, the attorney should file briefs in support of evidentiary issues. Further, during all hearings, the attorney should preserve legal issues for appeal, as appropriate.
•§ Presentation of Evidence - The attorney should present and cross-examine witnesses, offer exhibits, and provide independent evidence as necessary to support the child's legal position.
The child's position may overlap with the positions of one or both parents, third-party caretakers, or a child protection agency. Nevertheless, the attorney should be prepared to participate fully in every hearing and not merely defer to the other parties. Any identity of position should be based on the merits of the position and not a mere endorsement of another party's position.
Caselaw makes plain that children are entitled to more than the mere presence of a lawyer; they deserve effective representation and the failure to provide effective representation constitutes reversible error. See Matter of Jamie TT, 191 A.D.2d 132 (3rd Dept 1993).
•§ Whether the Child Should Testify - The attorney should decide, in consultation with his or her client, whether to call the child as a witness. The decision should include consideration of the child's need or desire to testify, any repercussions of testifying, the necessity of the child's direct testimony, the availability of other evidence or hearsay
exceptions which may substitute for direct testimony by the child, and the child's developmental ability to provide direct testimony and withstand possible cross-examination. Ultimately, the attorney is bound by the child's direction concerning testifying.
In general, the preferred practice in a custody/visitation case in order to determine best interests is to have an in camera or Lincoln interview, as described by the Court of Appeals in Lincoln v Lincoln, 24 NY2d 270 (1969), where the court interviews the child on the record in the presence of the attorney for the child but outside the presence of the parties' counsel.
The Court has the right to conduct the confidential interview without the parents' consent as the court has a responsibility to the welfare of the child. The interview prevents the child from having to publicly discuss difficulties with either parent or from having to openly choose between them. Speaking to the child in camera may also allow the Court to obtain a more honest expression of the child's wishes.
•§ Review of Court's Order - The attorney should review all written orders to ensure that they conform to the court's verbal orders and statutorily required findings and notices.
•§ Communicate Order to Child - The attorney should discuss each order and its consequences with the child.
•§ Implementation - The attorney should monitor the implementation of the court's orders and communicate to the responsible agency, and, if necessary, the court, any non-compliance.
•§ Decision to Appeal- The attorney should consider and discuss with the child, as developmentally appropriate, the possibility of an appeal. If after such consultation, the child wishes to appeal the order, and the appeal would not be frivolous, the lawyer should take all steps necessary to perfect the appeal and seek appropriate temporary orders or
extraordinary writs necessary to protect the interests of the child during the pendency of the appeal.
•§ Participation in Appeal - the attorney should participate in an appeal filed by another party unless discharged. As a result of the permanency legislation enacted in 2005, children and parents represented by a legal services organization or assigned counsel are now presumed eligible for assignment of counsel for the appeal. The attorney should submit a certification that the child is still eligible for assignment of counsel.
•§ Cessation of Representation - The attorney should discuss the end of the legal representation and determine what contacts, if any, the attorney and the child will continue to have. When the representation ends, the child's lawyer should explain in a developmentally appropriate manner why the representation is ending and how the child can obtain assistance in the future should it become necessary.
IV. Relationship among the Court, Counsel, and the Attorney for the Child
•§ The Attorney for the Child Does not Make Reports or Recommendations to the Court - In Weiglhofer v Wieglhofer, 1 AD3d 786 (3d Dept 2003), the Appellate Division emphasized in a footnote that "the law guardian is the attorney for the children and not an investigative arm of the court". It appeared from the record that the Supreme Court had relied on a "report" from the Law Guardian. The Court went on to say "While law guardians, as advocates, may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), presenting reports containing facts which are not part of the record or making submissions directly to the court ex parte are inappropriate practices". See also Matter of Rueckert v Reilly, 282 AD2d 608 (2d Dept 2001).
In Cervera v Bressler, 50 AD3d 837 (2d Dept 2008), in a matrimonial action, the court improvidently exercised its discretion in denying the father's application which sought to remove the attorney for the child. Here, in the order to show cause, the affirmation in support and in every affirmation submitted thereafter, the attorney for the child included facts which were not part of the record, but which constituted hearsay gleaned from the mother. The Court held that the attorney's for the child's repeated attacks on the father's character, was both unprofessional and improper, as it amounted to the attorney acting as a witness against the father.
•§ Ex Parte Communications - Engaging in ex parte communication without expressed approval of all parties is an improper practice. As stated in the 1995 Annual Report on the Commission of Judicial Conduct:
"Law Guardians who are appointed by the court to represent the children in family disputes are often seen as having a special role because they represent an innocent party whose best interest is the very focus of the underlying litigation before the court. Notwithstanding this special role, the law guardian is also a lawyer who is bound by the same rules as other lawyers in the litigation and who is not entitled to private communications with the court to which the other parties are not privy..."
In Brice v Mitchell, 184 AD2d 1008 (4th Dept 1992), the trial judge was reversed for relying on hearsay information provided by the law guardian.
The New York State Bar Association Committee on Children and the Law, Law Guardian Representation Standards, Volume II: Custody Cases specifically states that the "law guardian should not engage in any ex parte communication with the court" (3d ed., 2005, approved by the New York State Bar Association Executive Committee in January 2006).
•§ Attorney-Client Privilege - The attorney-client
privilege attaches to communications between the child and his or her attorney, including advice given by the attorney. Information protected by the attorney-client privilege may only be disclosed by the child's lawyer in the following circumstances:
(1) The child consents to disclosure;
(2) The attorney is required by law to disclose;
(3) The attorney has determined that the use of substituted judgment is required, and that disclosure advances the child's legal interests; or
(4) The attorney has determined that disclosure is necessary to protect the child from an imminent risk of physical abuse or death.
The Law Guardian should move to quash subpoenas or preclude testimony on the ground of privilege or other ground whenever there is an attempt to place the law guardian in a role as a witness against the client ( See In re Renee B. v Michael B., 227 AD2d 315 (1st Dept 1996) and Matter of Morgan v Becker, 245 AD2d 889 (3d Dept 1997)).
V. Compensation of Attorneys Representing Children
•§ In proceedings in which the appointment of an attorney for the child is mandated by the F.C.A § 249(a) including, juvenile delinquency proceedings, person in need of supervision (PINS) proceedings, child protective proceedings, termination of parental rights proceedings, contested adoption proceedings, foster care proceedings, and proceedings pursuant to FCA § 158 (protective custody of material witnesses), the attorney for the child is typically compensated by the state.
•§ In all other proceedings in which appointment is discretionary, such as a custody and visitation case, the court is authorized to direct the spouse or parent to pay the fees of the attorney for the child. See FCA §245 and Judiciary Law §35 (3).
In Plovnick v Klinger, 10 AD3d 84 (2d Dept 2004), the Appellate Division noted that Judiciary Law § 35 (3) provides statutory authority to require a parent to pay some or all of the law guardian's fee in a Family Court proceeding. The Court went on to state, "While the ability to assign counsel who can be compensated from public funds helps ensure that independent advocates are available to children in emotionally charged custody disputes, the interests of justice do not dictate that payment must, in all cases, be made from public funds."
•§ In the Second Department, the Law Guardian Program is responsible for compensating the attorney for the child in cases in which it is deemed appropriate by the court, and for paying reasonable disbursements incurred in the representation of a child client. See Office of Attorneys for Children, 2010 Administrative Handbook, Second Judicial Department, State of New York.
•§ In order to be compensated through the Law Guardian Program in the Second Department, an attorney must be a member of a county law guardian panel or of the Appellate Division's Law Guardian Appeals Panel. See id.
Samuel J. Ferrara
Samuel J. Ferrara is a partner and co-director of the Matrimonial Law department at Abrams, Fensterman.
Mr. Ferrara represents a variety of clients in a range of matrimonial and family law issues, as well as transactional, corporate and commercial matters. He has particular expertise with contested custody cases, high net worth cases and commercial transactions.
Mr. Ferrara counsels clients throughout all phases of the divorce and separation process, including custody/parental access disputes and support/property distribution issues. He also assists clients in resolving corporate and commercial issues. His experience includes transactional work such as buy/sell agreements for multimillion dollar entities and smaller, individual transactions.
A top litigator and negotiator, Mr. Ferrara was recently named one of the Top 10 Matrimonial and Family Attorneys Under the Age of 45, as well as being designated as a New York Super Lawyer in 2008, 2009, and 2010, a distinction earned by only five percent of the lawyers in the New York metro area.
Mr. Ferrara presents numerous programs and/or teaches at various professional organizations on parent education, custody, parental access, property distribution, trial advocacy, appellate advocacy and ethics. He is also published in professional journals and newsletters. Mr. Ferrara is an adjunct Professor at Hofstra University.
He received his B.A. and M.A. from Boston University and his J.D. from Hofstra University School of Law. Mr. Ferrara is one of the directors of the Parent Education and Custody Effectiveness program (P.E.A.C.E.), and is a member of the Association of Family and Conciliation Courts (AFCC), the American Bar Association, the Nassau and Suffolk County Bar Associations.