The Value of Child-Centered Litigation in Our Matrimonial and Family Courts

As far back as 1998, the Statewide Law Guardian Advisory Committee acknowledged the need to ensure that the child's position was represented in custody and visitation proceedings. The Committee stated unequivocally that it is the “responsibility” of the attorney for the child in matrimonial proceedings to “diligently advocate the child's position in litigation” unless 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 risk of physical or emotional harm to the child.” Statewide Law Guardian Advisory Committee, 4/16/98. In the decade that followed, essentially identical statements of the obligation of the child's attorney have been included in the Matrimonial Commission Report (Miller, 2006), the NYS Bar Association Standards for Attorneys Representing Children in Custody, Visitation and Guardianship Proceedings (June 2008), and, most importantly, in the Rules of the Chief Judge (2007), which serves as a national guidepost for resolving the often misunderstood role of an attorney representing a child.

The Chief Judge clearly defined the role of the attorney for the child as a respected member of the bar who is bound, as are all attorneys, to zealously advocate his or her client's expressed wishes. An exception to this advocacy position is only to be made in those limited circumstances where there is lack of capacity or substantial risk of imminent, serious harm to the child. 22NYCRR ' 7.2(b).

Opposition to Involvement By Attorneys For Children

Some participants in the matrimonial-law field argue in favor of rolling back the clock to the days when children had no independent voice in custody proceedings. Frequently, they are concerned that the court sees the input of the child's advocate as the most reliable starting point for consideration in the proceeding. But we ask: What better starting point is there for an enlightened jurist charged with determining the child's best interest than that of the attorney for the child, who is charged with remaining impartial and independent of either parent?

Many matrimonial and family law practitioners recognize that the detriment to children in high-conflict custody proceedings is rooted in the impaired ability to parent that is manifested by an inability to distinguish between one's own needs and those of the children. It is in this arena that the value of an attorney for the child is most clearly apparent, It is the attorney for the child who is obligated to refocus every custody or visitation proceeding on the child and ensure that the proceeding remains a child-centered decision-making process.

Young people frequently disclose information to their attorneys that goes to the heart of their parents' custody dispute; information that they are uncomfortable disclosing to either parent. The Attorney for the Child is the only participant in the litigation who is duty-bound to present a position to the court that is based on a dispassionate and objective articulation of the subject-child's wishes and needs.

Due Process Concerns

The exercise of the child's right to be heard has also been cited as the basis for the argument that zealous advocacy for the subject-children means a trampling of the parents' due process rights, as exemplified by those instances when the court deems it appropriate to take the child's testimony in camera. However, it is critical to recognize that a child-centered custody or visitation proceeding does not translate into a due process deprivation for either parent.

It is well settled that “'[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). Rather, due process “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).'

Applying these principals to custody proceedings, the New York Court of Appeals has stated unequivocally:

[I]n a custody proceeding ' , the first concern of the court is and must be the welfare and the interests of the children ' . Their interests are paramount. The rights of their parents must, in the case of conflict, yield to that superior demand ' . It requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them ' . [W]e are convinced that the interests of the child will be best served by granting to the trial court in a custody proceeding discretion to interview the child in the absence of its parents or their counsel.

Lincoln v. Lincoln, 299 N.Y.S.2d at 843 – 845

In the Lincoln decision, the Court of Appeals also provides a succinct answer to the concern for a parent's rights by reminding us that the goal of matrimonial litigation is not the “win” for one parent or the other, but the resolution of the case by focusing on the interests of the child. Simply put, courts should determine whether to hold an in camera interview based on whether doing so will “benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision.” Lincoln v. Lincoln, 299 N.Y.S.2d at 844.

Conclusion

A custody proceeding that includes a zealous advocate for the child is one of the best ways to break the cycle of parent-centered cross-allegations and scorched-earth trial tactics, and facilitate the parties' ability to accept that the only relevant outcome is the one that best serves the child.

Thankfully, the New York legislature and judiciary have demonstrated an understanding that children are rarely uninvolved or unaffected by custody disputes that end up in litigation. After all, these are parents who have failed to resolve their custody arrangements amicably, have failed to successfully avail themselves of their communities' resources, such as family, friends, clergy or mediation services to resolve their dispute, and have had to resort to asking the State, through its courts, to make their custody decision for them.

The reality is that, in non-settled custody disputes, the courts are too frequently confronted with at least one parent who profoundly distrusts the other, who disrespects the other's intentions and parenting ability, is unable to see any positive traits in the other party, is unable to envision solutions other than his or her own, and who is locked in a cycle of anger and blame.

As the only attorneys in these proceedings who are not bound by the positions or demands of either parent, it is the attorney for the child who is uniquely positioned to utilize all the tools at a skilled attorney's disposal. These may include targeted motion practice, oral advocacy and incisive direct and cross-examination of witnesses, to ensure that the unadulterated voice of the child is heard. It is only when both parents and the child present their positions that the court is able to meet its legal obligation to reach a fully informed decision regarding a child's best interests.

Of course, while the attorney for the child is bound to zealously advocate his or her client's position, such advocacy should never preclude an individualized assessment of each child's level of development and understanding. At Lawyers For Children, we assign a staff social worker to every case, so that our attorneys' communication with their clients is always informed by a professional, developmental assessment and tailored to the individual young person. We never view ourselves as an arm of the court and always seek to remember that justice will only be served if every interested participant in a custody proceeding is zealously represented.

While there are certainly attorneys for children who do not appropriately discharge their duties, the same might be said of other groups of attorneys. The answer is to educate and train those attorneys on how to fulfill their professional obligations, rather than to deny children legal representation and a voice in the proceedings that so directly impact their lives.

Any concern that a child-centered custody proceeding will harm one parent or the other is unwarranted. Those who advocate a return to the days when the child's position was not represented in custody proceedings should embrace rather than fear the progress that has been made, by recognizing the critical importance, to all parties, of giving children a voice in the courtroom.

Glenn Metsch-Ampel is Deputy Executive Director and Karen J. Freedman is Executive Director of Lawyers For Children.

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A small but vocal faction of the matrimonial bar is sounding a call to arms against the progress that has been made in the past 15 years to ensure that children have a voice in the custody and visitation disputes that profoundly impact their lives. This is an issue of great concern at Lawyers For Children (LFC), where we see every day the constructive impact that the child's perspective has in these proceedings, and the extent to which experienced, well-trained attorneys for children can achieve better outcomes for children and their families in contested custody proceedings.

LFC's attorneys represent approximately 3,000 children in over 6,000 proceedings each year. Hundreds of those proceedings involve complex, high-conflict custody and visitation disputes. Over nearly 30 years, we have gained a clear understanding of the critical role the attorney for the child can play in presenting the child's position without the filter of the parent's needs or wishes.'

Evolution of the Role

As far back as 1998, the Statewide Law Guardian Advisory Committee acknowledged the need to ensure that the child's position was represented in custody and visitation proceedings. The Committee stated unequivocally that it is the “responsibility” of the attorney for the child in matrimonial proceedings to “diligently advocate the child's position in litigation” unless 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 risk of physical or emotional harm to the child.” Statewide Law Guardian Advisory Committee, 4/16/98. In the decade that followed, essentially identical statements of the obligation of the child's attorney have been included in the Matrimonial Commission Report (Miller, 2006), the NYS Bar Association Standards for Attorneys Representing Children in Custody, Visitation and Guardianship Proceedings (June 2008), and, most importantly, in the Rules of the Chief Judge (2007), which serves as a national guidepost for resolving the often misunderstood role of an attorney representing a child.

The Chief Judge clearly defined the role of the attorney for the child as a respected member of the bar who is bound, as are all attorneys, to zealously advocate his or her client's expressed wishes. An exception to this advocacy position is only to be made in those limited circumstances where there is lack of capacity or substantial risk of imminent, serious harm to the child. 22NYCRR ' 7.2(b).

Opposition to Involvement By Attorneys For Children

Some participants in the matrimonial-law field argue in favor of rolling back the clock to the days when children had no independent voice in custody proceedings. Frequently, they are concerned that the court sees the input of the child's advocate as the most reliable starting point for consideration in the proceeding. But we ask: What better starting point is there for an enlightened jurist charged with determining the child's best interest than that of the attorney for the child, who is charged with remaining impartial and independent of either parent?

Many matrimonial and family law practitioners recognize that the detriment to children in high-conflict custody proceedings is rooted in the impaired ability to parent that is manifested by an inability to distinguish between one's own needs and those of the children. It is in this arena that the value of an attorney for the child is most clearly apparent, It is the attorney for the child who is obligated to refocus every custody or visitation proceeding on the child and ensure that the proceeding remains a child-centered decision-making process.

Young people frequently disclose information to their attorneys that goes to the heart of their parents' custody dispute; information that they are uncomfortable disclosing to either parent. The Attorney for the Child is the only participant in the litigation who is duty-bound to present a position to the court that is based on a dispassionate and objective articulation of the subject-child's wishes and needs.

Due Process Concerns

The exercise of the child's right to be heard has also been cited as the basis for the argument that zealous advocacy for the subject-children means a trampling of the parents' due process rights, as exemplified by those instances when the court deems it appropriate to take the child's testimony in camera. However, it is critical to recognize that a child-centered custody or visitation proceeding does not translate into a due process deprivation for either parent.

It is well settled that “'[d]ue process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy , 367 U.S. 886, 895 (1961). Rather, due process “is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer , 408 U.S. 471, 481 (1972).'

Applying these principals to custody proceedings, the New York Court of Appeals has stated unequivocally:

[I]n a custody proceeding ' , the first concern of the court is and must be the welfare and the interests of the children ' . Their interests are paramount. The rights of their parents must, in the case of conflict, yield to that superior demand ' . It requires no great knowledge of child psychology to recognize that a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by having to publicly relate its difficulties with them ' . [W]e are convinced that the interests of the child will be best served by granting to the trial court in a custody proceeding discretion to interview the child in the absence of its parents or their counsel.

Lincoln v. Lincoln , 299 N.Y.S.2d at 843 – 845

In the Lincoln decision, the Court of Appeals also provides a succinct answer to the concern for a parent's rights by reminding us that the goal of matrimonial litigation is not the “win” for one parent or the other, but the resolution of the case by focusing on the interests of the child. Simply put, courts should determine whether to hold an in camera interview based on whether doing so will “benefit the child by obtaining for the Judge significant pieces of information he needs to make the soundest possible decision.” Lincoln v. Lincoln , 299 N.Y.S.2d at 844.

Conclusion

A custody proceeding that includes a zealous advocate for the child is one of the best ways to break the cycle of parent-centered cross-allegations and scorched-earth trial tactics, and facilitate the parties' ability to accept that the only relevant outcome is the one that best serves the child.

Thankfully, the New York legislature and judiciary have demonstrated an understanding that children are rarely uninvolved or unaffected by custody disputes that end up in litigation. After all, these are parents who have failed to resolve their custody arrangements amicably, have failed to successfully avail themselves of their communities' resources, such as family, friends, clergy or mediation services to resolve their dispute, and have had to resort to asking the State, through its courts, to make their custody decision for them.

The reality is that, in non-settled custody disputes, the courts are too frequently confronted with at least one parent who profoundly distrusts the other, who disrespects the other's intentions and parenting ability, is unable to see any positive traits in the other party, is unable to envision solutions other than his or her own, and who is locked in a cycle of anger and blame.

As the only attorneys in these proceedings who are not bound by the positions or demands of either parent, it is the attorney for the child who is uniquely positioned to utilize all the tools at a skilled attorney's disposal. These may include targeted motion practice, oral advocacy and incisive direct and cross-examination of witnesses, to ensure that the unadulterated voice of the child is heard. It is only when both parents and the child present their positions that the court is able to meet its legal obligation to reach a fully informed decision regarding a child's best interests.

Of course, while the attorney for the child is bound to zealously advocate his or her client's position, such advocacy should never preclude an individualized assessment of each child's level of development and understanding. At Lawyers For Children, we assign a staff social worker to every case, so that our attorneys' communication with their clients is always informed by a professional, developmental assessment and tailored to the individual young person. We never view ourselves as an arm of the court and always seek to remember that justice will only be served if every interested participant in a custody proceeding is zealously represented.

While there are certainly attorneys for children who do not appropriately discharge their duties, the same might be said of other groups of attorneys. The answer is to educate and train those attorneys on how to fulfill their professional obligations, rather than to deny children legal representation and a voice in the proceedings that so directly impact their lives.

Any concern that a child-centered custody proceeding will harm one parent or the other is unwarranted. Those who advocate a return to the days when the child's position was not represented in custody proceedings should embrace rather than fear the progress that has been made, by recognizing the critical importance, to all parties, of giving children a voice in the courtroom.

Glenn Metsch-Ampel is Deputy Executive Director and Karen J. Freedman is Executive Director of Lawyers For Children.

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