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Custody Disputes and Your Child’s Attorney

In matrimonial action where custody of the child is contested, the Court will often assign an Attorney for the Child (AFC). The role of the AFC is to report the child’s express wishes regarding residential custody and other child-related issues to the court. In cases where the child is of a tender age, or otherwise unable to communicate his/her wishes, the AFC will seek to determine what is in the child’s best interests. The bottom line is that while best interests are always a factor, the AFC’s primary role is to provide the child with an opportunity to be heard by the court. Of course, in circumstances where alienation and/or undue influence may be at play regarding the child’s express wishes, the court may also appoint a forensic psychologist to determine the reason for the child’s wishes.

As with any attorney-client relationship, an AFC’s role is to protect the child during the litigation, which includes maintaining confidences. This permits the child to speak freely without the fear of repercussion from either parent, and may provide a safe space for the child to work through the divided loyalties that many children experience during highly contested custody cases.

The AFC also has the authority to make applications to the court regarding the child; to question the parties during the custody trial, to call witnesses; to request child-related information and obtain authorizations to speak with collateral individuals such as doctors, teachers and the like; to serve subpoenas; and to be present when and if the court conducts an in camera interview with the child.

If there is a need for the appointment of an AFC, it means that the child is undoubtedly being placed in the midst of the litigation, and his/her life and schedule will likely revolve around interviews with the AFC and possibly even a court appointed forensic psychologist, and, in the worst case scenarios, visits to the courthouse.

For better or for worse in connection with the parties’ respective positions, the AFC is an important asset to the child and will assist the court is resolving the custodial issue while protecting the child’s bets interests throughout the litigation.

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