As the saying goes, “everyone is entitled to legal counsel.” In matrimonial actions involving custody disputes, where the best interests of the children are implicated, this saying applies to those children as well.
The Attorney for the Child, most commonly referred to as the “AFC,” is an attorney either appointed by the Court sua sponte or at the request of either party. Previously, these attorneys were referred to as Law Guardians. More significant than the change in title of these attorneys is the difference in his/her mandate. A Law Guardian’s role was to ascertain what they believed was in the child’s best interest in connection with which parent was the more appropriate residential parent, and even what parenting time schedule would best serve the child’s interests. An Attorney for the Child has a very different role: 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, an Attorney for the Child 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, instead of the AFC merely providing an assessment of the circumstances based upon the conflicting accounts and heated positions of the parties themselves.
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.
An AFC is more than a mere confidante or mouthpiece for a child’s expressed wishes. An AFC has the authority, like any other attorney, 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.
For better or for worse in connection with the parties’ respective positions, the AFC’s first priority is the child. Given this, the AFC is an important asset to the child and will assist the court is resolving the custodial issue