New York State's Attorney for the Child System Falls Short

Custody disputes can be financially and emotionally draining, and stressful for both parents and children. It was once believed that after a divorce, children needed the full-time stability of a home run by one parent, but today, shared custody has become an accepted method of circumventing the brutal dynamics of divorce litigation.

The AFC System

As the definition of “family” evolved, the legal system was challenged to develop a process of decision-making that provided the best options for children. Enter the AFC system, in which appointed attorneys fully advocate for the wishes of their young clients. While it is well-intentioned, I have seen the negative results of the AFC system, and highly recommend that any family court attorneys and legislators considering changes to their state's practices carefully weigh the pros and cons of an AFC model, and look to the systems in other states that appear to produce more equitable and sane results.

Up until 2005, New York courts provided children with an advocate, or guardian ad litem (GAL), to argue for what the attorney felt was best for the child. In 2004, New York's then-chief judge, Judith S. Kaye, appointed a group of lawyers, judges and public policy advocates to the Matrimonial Commission, also known as the Miller Commission, to study, among other things, the role of GALs. These guardians ad litem typically reported to the court what they perceived to be in the best interests of their minor clients and, in many cases, offered an explanation as to what their clients wanted.

The commission issued a report that identified considerable confusion concerning the role of GALs, finding that it was unclear to counsel, experts and the court if GALs were primarily advocates for the children they were appointed to represent, or if they could advocate on behalf of the child and in essence cast a vote for one of the parents. Many in the family court community considered GALs an “arm of the court.”

In an initial report, the commission recommended replacing the GAL with the AFC, whose presence would allow children to have a “meaningful voice” in the courtroom. The commission received considerable support for introducing the AFC model from child advocates, judges and those in academia. Professor Martin Guggenheim of Pace University, for example, pushed for a stronger role for AFCs, asserting in “A Law Guardian by Any Other Name: A Critique of the Report of the Matrimonial Commission,” 27 Pace L. Rev. 785 (2007), that AFCs should have full discretion to do as they wished for children, beyond giving them a “meaningful voice.”

Likewise, Professor Merril Sobie, whose position is summarized in 27 Pace L. Rev. 539 (2007), also argued that the commission's initial report did not go far enough in terms of defining the role of the AFC. The supporters' views were heard. A subsequent report from the Matrimonial Commission recommended that the AFC advocate for the child client the same way any other attorney would represent an adult client.

Professor Sobie also raised the issue that judges often viewed appointed guardians as “arms of the court,” even though the Appellate Division, well before the commission issued its report, repeatedly corrected the lower courts. (See Cervera v. Bressler, 50 A.D.3d 837, 841 (2d Dept., 2008); Weiglhofer v. Weiglhofer, 1 A.D.3d 786, 788 (3d Dept., 2003).

An Imbalance of Power

Appointed attorneys often appear to follow the lead of the judge who appointed them in order to stay in the judge's good graces. That topic is worthy of a separate article unto itself. But it plays a key role in the dynamic of custody disputes involving AFCs. For too many litigants, it appears that the judge and the appointed attorney are on the same side, making the custody dispute a lopsided battle, with the judge, the child's attorney and one parent on one side, and the second parent on the other.

In 2010, New York State codified the Matrimonial Commission's findings in the New York Code of Rules and Regulations for the Attorneys for Children, establishing that AFCs, like the lawyers who counsel adults, must be guided by the wishes of their juvenile clients. While requiring AFCs to vigorously represent their clients may appear to make sense, I find after seven years of practice that this adherence to this zealous representation standard has generated troubling results. In practice, it puts children on an equal footing with their parents in the courtroom, which, while noble in intent, has resulted in further upsetting the balance of power in litigation and has caused too many trial court judges to abdicate judicial decision-making and rely too heavily on the arguments of the AFCs. The role of the AFC has done nothing to eliminate the perception that the odds are stacked against one parent, and it also appears in many cases that the court is granting everything the child wants.

A Child's-Eye View

Particularly disturbing is the lack of common sense in giving children equal weight in court, since most children have little ability to understand the world around them, let alone determine what course of action is most beneficial to their well-being. Asking children to articulate their own best interests puts them under tremendous pressure.

Parents, psychologists and attorneys understand that children, especially between the ages of nine and 12, see the world in terms of black and white, right and wrong, and good and bad. See, e.g., “Children of Divorce, in the Medical Branch Clinic,” Naval Hospital, Jacksonville, Fla. J. Am. Board Fam. Med. 2001, 14(3). This world view leaves children completely vulnerable to manipulation.

In my experience, the ability to manipulate is always more finely tuned in one parent, and that parent is typically victorious in custody disputes. I have also observed that the age parameter for children seeing the world as black and white, right and wrong, is more like seven to 14 years old. So children within that wide age range are making life choices they may not be equipped to make.

In next month's newsletter, we will discuss some cases in which children were arguably allowed too much input in the decisions surrounding their parents' custody awards. We'll also compare and contrast New York's attorney-for-the-child model with methods employed in other states for giving children input into the custody decision.

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Yonatan Levoritz is a family law practitioner in New York.