New York State's Attorney for the Child System

When a nine-year-old child's attorney announces very specific demands, a parent recognizes that the position being expressed is that of the former spouse. The position expressed by the AFC will frequently be accepted by the court. For example, in one recent case in which I was involved, the child decided that she only wanted daytime visits with one of her parents, despite the fact that the overwhelming body of psychological research indicates that children do much better socially and emotionally when they have both of their parents in their lives to the maximum extent possible. See http://bit.ly/2xPlQgp.

In another case, the child decided that he only wanted to see his father on a supervised basis even though he could not articulate a reason for his request. The court allowed the child to dictate the terms of access and did not allow the parent and child to work together on their relationship without the court's intervention.

In one particularly disturbing incident, the father placed parental controls on his daughter's phone when he discovered she was watching hardcore pornography with her mother's permission. The daughter told her father that she would call her attorney and direct her to cancel all contact with her father until he removed the parental controls.

I have also seen cases where children simply decide they do not want to see their parent, even though the parent is not abusive, and the child is allowed to make that determination. In one such case, the court allowed a 13-year-old essentially to divorce her father, who wanted to play an active role in parenting and supervising her, put an end to her known drug use and promiscuity, and encourage her to respect herself and her family.

Finally, despite the fact that most family court judges are highly skilled at effectively resolving tense custody situations and could better understand the effects of litigation on the children and the children's wishes by interviewing them directly, these meetings are often being delayed. Many judges are not talking to children until after trial, or before or after hearings and other major events in the litigation.

Meeting with a judge in chambers can be less traumatic for the child than being part of the dynamic of two opposing counsel and the AFC arguing with one another before each court appearance. All too often, judges remain remote from the children and rely on the representation of the AFC without conducting a hearing, as evidenced by the case law cited herein. Fortunately in New York, the Appellate Division has intervened in several cases to get the process back on track. But in reality, few litigants have the financial or emotional resources to bring appeals; lower court decisions, made after testimony is taken, are therefore usually left standing. Quite often, judges have to be goaded into making summary decisions so that overturning them is simpler.

State By State

Legal research that I have performed in the matter of New York's AFC system indicates that a number of other states have adopted a more even-handed approach to balancing the needs of the child with the child's preferences and the parents' rights. Any state weighing an AFC model would be well-advised to consider other states' methods instead of New York's.

What Happens in New York

The following are a few examples of decisions made in New York in cases where one might suspect the child was manipulated by one parent, and his or her requests were given equal weight by the court.

In Twiss v. Brennan, 82 A.D.3d 1533, 1535 (3d Dept. 2011), the AFC for an 11-year-old child verbally requested that the father's visitation be suspended and that his future visitation be supervised, based upon allegations that the child did not wish to see his father. The Supreme Court granted the AFC's request and issued a final order suspending the father's visitation rights without holding a hearing. In reversing, the Appellate Division, Third Department, found that the court should have held an evidentiary hearing instead of simply relying on the hearsay allegations offered by the AFC.

In William O. v. Michele A., 119 A.D.3d 990, 991 (3d Dept. 2014), the lower court denied the father's request for custody and placed him on a sex offender registry, based upon hearsay allegations made by the AFC (and by the child's mother, who lobbied for the request). The appellate court found that the Family Court improperly relied upon the AFC as a “quarterback” for the court and should not have deferred its fact-finding mandate to the AFC. The panel said the court should instead have conducted a fact-finding hearing.

So too, in Zubizarreta v. Hemminger, 107 A.D.3d 909, 910 (2d Dept. 2013), the Family Court terminated the father's visitation with his 13-year-old son based upon comments from the AFC that the child did not wish to see his father. The appellate court reversed, holding that the Family Court should have conducted a hearing instead of relying solely upon the AFC's comments.

In Swinson v. Brewington, 84 A.D.3d 1251, 1253-54 (2d Dept. 2011), the lower court went along with the AFC, who advocated that the mother should be awarded temporary custody because the child allegedly suffered from special needs and only the mother could provide an adequate education that took such needs into account. The Family Court awarded custody to the mother. In reversing, the Appellate Division, Second Department, held that the Judicial Hearing Officer erred in relying upon the AFC's uncorroborated allegations while refusing to receive evidence or take testimony from the father.

In Brown v. Simon, 123 A.D.3d 1120, 1123 (2d Dept. 2014), an AFC successfully moved to have the Family Court grant sole custody of the parties' 12-year-old daughter to her father, despite the fact that the AFC's motion was based on nothing more than his discussions with the father and the child's day care provider. The Appellate Division found that this was inappropriate and appointed a new AFC to represent the child.

In short, under New York's AFC rules, a pattern has developed where judges are not meeting with children and instead are giving equal weight to the representations of the AFCs, whose clients routinely have been manipulated by one or the other parent. Those who can afford to appeal may get another chance to have a hearing, but at the trial level, parties are caught in a battle that appears weighted in one parent's favor, especially when judges do not have first-hand knowledge of the children. While well-intentioned, the AFC model has done little to bring balance back to the courtroom and, most importantly, it is not a guarantee that decisions are actually being made in the child's best interests.

What are other states doing, and why are their systems arguably better than those in New York?

Wisconsin

In Wisconsin, a child does not have the right to choose his or her custodial parent, although the court may consider the child's wishes. The court has discretion to interview the child, but more often than not, the court proceeds with the statutory presumption that custody will be shared by both parents. The court has the ability to deny the appointment of a Guardian Ad Litem if the process is being sought for a tactical purpose or is considered unnecessary. This differs from New York State, where I have been involved in cases in which attorneys are appointed for infants, or where both parents are alleging minor issues that could easily be resolved by the parties with the help of the judge.

In essence, the legislature in Wisconsin has told judges that when the appointment of an attorney for the child is sought as a delay tactic or to create an alliance with other stakeholders, the court does not have to partake in such activity.

Maryland

In Maryland, the judge may choose to appoint a lawyer for the child to serve one of three roles: 1) as a “child privilege attorney,” who decides whether a child's confidential or privileged information should be released in court; 2) as a “best interest attorney,” who independently decides what custody arrangement he or she believes is best for the child (the attorney must tell the court what the child wants, but is not required to ask the court to do what the child wants, just as with the court in Wisconsin); and 3) as a “child advocate,” who follows the client's instructions, regardless of whether the course of action is in the client's best interest (a child advocate is generally only appropriate where the child is mature and thinks his or her own interests are different from those of the parents.)

When there is no attorney to advocate on a child's behalf, the judge may choose to interview the child in chambers. The judge usually interviews the child once, at the time of the merits hearing (the main court date for the case). These interviews are part of the official record. They are not confidential and are generally recorded. A child who is at least 16 years old may also choose to ask directly for a change of custody.

Texas

In Texas, children who are at least 12 years of age have input as to where they will live. However, it not incumbent upon the judge to adhere to the child's wishes. It is only when the child reaches majority that such a custody order no longer applies.

The Texas Family Code does not allow a child who is 12 years or older to sign a form stating with whom he or she wants to reside. The only way for a child to directly express his or her preferences is to meet with the judge in chambers. In effect, the judge decides whether to interview a child under age 12 with respect to the question of parental custody and the child's wishes concerning visitation, among other things.

Ohio

In Ohio, one or both parents may request a shared parenting arrangement and propose a shared parenting plan. There are many factors that can determine whether shared parenting is in the best interests of the children. If the court determines that shared parenting is not in the children's best interests, it will select one parent as the residential parent, and that parent will be awarded custody. The other parent will get parenting-time rights.

While Ohio law does not specify an age at which a child may choose his or her own living arrangements, custody actions are decided on a case-by-case basis. The determination of custody is based on a number of factors, including the wishes of the parents, the child, and the child's relationship with parents, siblings, and any other person who may significantly affect the child's best interests.

Under Ohio law, it is possible for a parent to urge the court to interview the child to find out the child's preference. In such an instance, the court will conduct an in-camera interview. Also, the child may meet with court personnel as appropriate, but the child's parents must not be present at the meeting. The court will use its discretion to appoint a GAL for the child, upon the motion of either parent.

There are also certain guidelines to be followed while interviewing a child in chambers. First, the court must determine the reasoning ability of the child. Based on that, it may decide not to ask the child his or her wishes with regard to the issue of custody. The court needs to rule out any other special circumstances that would constitute grounds for disregarding the child's wishes. Only then will the court discuss custody options with the child.

Conclusion

In New York, the change from a GAL to an AFC model has put a tremendous burden on children, who lack the maturity to evaluate what is in their best interests. They are being forced to make decisions far beyond their emotional and intellectual capabilities and are routinely manipulated by caring but emotionally charged parents.

If the AFC role had been designed as a neutral voice that would put the wishes of the child in perspective and provide the court with the full picture, it might have worked. But AFCs are not a neutral voice, and judges have come to rely on the AFC's full-throated advocacy. The results have been disturbing, for a number of reasons.

*****
Yonatan Levoritz is a Family Law practitioner in New York.

Last month, the author noted that in New York State, prior to 2005, children who were the subjects of custody matters were provided with a Guardian Ad Litem (GAL); the GAL reported to the court, offering his or her thoughts on the best interests of the child, and sometimes explaining the child's preferences in the matter. Reforms brought about a change, with GALs being replaced by Attorneys for the Child (AFC). An AFC advocates for the child client in much the same way that any other attorney advocates for an adult client. And although this may not sound like a radical idea at first glance, this author is not a fan. He continues his discussion of the drawbacks of New York's AFC system here.

Drawbacks

Based upon my experience in the trenches, children in many cases literally dominate the litigation, dictating when their mother or father should pick them up from school, when the mother or father should visit, and the number of times per week the child is willing to see them. Often, these children are parroting the position of one parent.

When a nine-year-old child's attorney announces very specific demands, a parent recognizes that the position being expressed is that of the former spouse. The position expressed by the AFC will frequently be accepted by the court. For example, in one recent case in which I was involved, the child decided that she only wanted daytime visits with one of her parents, despite the fact that the overwhelming body of psychological research indicates that children do much better socially and emotionally when they have both of their parents in their lives to the maximum extent possible. See http://bit.ly/2xPlQgp.

In another case, the child decided that he only wanted to see his father on a supervised basis even though he could not articulate a reason for his request. The court allowed the child to dictate the terms of access and did not allow the parent and child to work together on their relationship without the court's intervention.

In one particularly disturbing incident, the father placed parental controls on his daughter's phone when he discovered she was watching hardcore pornography with her mother's permission. The daughter told her father that she would call her attorney and direct her to cancel all contact with her father until he removed the parental controls.

I have also seen cases where children simply decide they do not want to see their parent, even though the parent is not abusive, and the child is allowed to make that determination. In one such case, the court allowed a 13-year-old essentially to divorce her father, who wanted to play an active role in parenting and supervising her, put an end to her known drug use and promiscuity, and encourage her to respect herself and her family.

Finally, despite the fact that most family court judges are highly skilled at effectively resolving tense custody situations and could better understand the effects of litigation on the children and the children's wishes by interviewing them directly, these meetings are often being delayed. Many judges are not talking to children until after trial, or before or after hearings and other major events in the litigation.

Meeting with a judge in chambers can be less traumatic for the child than being part of the dynamic of two opposing counsel and the AFC arguing with one another before each court appearance. All too often, judges remain remote from the children and rely on the representation of the AFC without conducting a hearing, as evidenced by the case law cited herein. Fortunately in New York, the Appellate Division has intervened in several cases to get the process back on track. But in reality, few litigants have the financial or emotional resources to bring appeals; lower court decisions, made after testimony is taken, are therefore usually left standing. Quite often, judges have to be goaded into making summary decisions so that overturning them is simpler.

State By State

Legal research that I have performed in the matter of New York's AFC system indicates that a number of other states have adopted a more even-handed approach to balancing the needs of the child with the child's preferences and the parents' rights. Any state weighing an AFC model would be well-advised to consider other states' methods instead of New York's.

What Happens in New York

The following are a few examples of decisions made in New York in cases where one might suspect the child was manipulated by one parent, and his or her requests were given equal weight by the court.

In Twiss v. Brennan , 82 A.D.3d 1533, 1535 (3d Dept. 2011), the AFC for an 11-year-old child verbally requested that the father's visitation be suspended and that his future visitation be supervised, based upon allegations that the child did not wish to see his father. The Supreme Court granted the AFC's request and issued a final order suspending the father's visitation rights without holding a hearing. In reversing, the Appellate Division, Third Department, found that the court should have held an evidentiary hearing instead of simply relying on the hearsay allegations offered by the AFC.

In William O. v. Michele A. , 119 A.D.3d 990, 991 (3d Dept. 2014), the lower court denied the father's request for custody and placed him on a sex offender registry, based upon hearsay allegations made by the AFC (and by the child's mother, who lobbied for the request). The appellate court found that the Family Court improperly relied upon the AFC as a “quarterback” for the court and should not have deferred its fact-finding mandate to the AFC. The panel said the court should instead have conducted a fact-finding hearing.

So too, in Zubizarreta v. Hemminger , 107 A.D.3d 909, 910 (2d Dept. 2013), the Family Court terminated the father's visitation with his 13-year-old son based upon comments from the AFC that the child did not wish to see his father. The appellate court reversed, holding that the Family Court should have conducted a hearing instead of relying solely upon the AFC's comments.

In Swinson v. Brewington , 84 A.D.3d 1251, 1253-54 (2d Dept. 2011), the lower court went along with the AFC, who advocated that the mother should be awarded temporary custody because the child allegedly suffered from special needs and only the mother could provide an adequate education that took such needs into account. The Family Court awarded custody to the mother. In reversing, the Appellate Division, Second Department, held that the Judicial Hearing Officer erred in relying upon the AFC's uncorroborated allegations while refusing to receive evidence or take testimony from the father.

In Brown v. Simon , 123 A.D.3d 1120, 1123 (2d Dept. 2014), an AFC successfully moved to have the Family Court grant sole custody of the parties' 12-year-old daughter to her father, despite the fact that the AFC's motion was based on nothing more than his discussions with the father and the child's day care provider. The Appellate Division found that this was inappropriate and appointed a new AFC to represent the child.

In short, under New York's AFC rules, a pattern has developed where judges are not meeting with children and instead are giving equal weight to the representations of the AFCs, whose clients routinely have been manipulated by one or the other parent. Those who can afford to appeal may get another chance to have a hearing, but at the trial level, parties are caught in a battle that appears weighted in one parent's favor, especially when judges do not have first-hand knowledge of the children. While well-intentioned, the AFC model has done little to bring balance back to the courtroom and, most importantly, it is not a guarantee that decisions are actually being made in the child's best interests.

What are other states doing, and why are their systems arguably better than those in New York?

Wisconsin

In Wisconsin, a child does not have the right to choose his or her custodial parent, although the court may consider the child's wishes. The court has discretion to interview the child, but more often than not, the court proceeds with the statutory presumption that custody will be shared by both parents. The court has the ability to deny the appointment of a Guardian Ad Litem if the process is being sought for a tactical purpose or is considered unnecessary. This differs from New York State, where I have been involved in cases in which attorneys are appointed for infants, or where both parents are alleging minor issues that could easily be resolved by the parties with the help of the judge.

In essence, the legislature in Wisconsin has told judges that when the appointment of an attorney for the child is sought as a delay tactic or to create an alliance with other stakeholders, the court does not have to partake in such activity.

Maryland

In Maryland, the judge may choose to appoint a lawyer for the child to serve one of three roles: 1) as a “child privilege attorney,” who decides whether a child's confidential or privileged information should be released in court; 2) as a “best interest attorney,” who independently decides what custody arrangement he or she believes is best for the child (the attorney must tell the court what the child wants, but is not required to ask the court to do what the child wants, just as with the court in Wisconsin); and 3) as a “child advocate,” who follows the client's instructions, regardless of whether the course of action is in the client's best interest (a child advocate is generally only appropriate where the child is mature and thinks his or her own interests are different from those of the parents.)

When there is no attorney to advocate on a child's behalf, the judge may choose to interview the child in chambers. The judge usually interviews the child once, at the time of the merits hearing (the main court date for the case). These interviews are part of the official record. They are not confidential and are generally recorded. A child who is at least 16 years old may also choose to ask directly for a change of custody.

Texas

In Texas, children who are at least 12 years of age have input as to where they will live. However, it not incumbent upon the judge to adhere to the child's wishes. It is only when the child reaches majority that such a custody order no longer applies.

The Texas Family Code does not allow a child who is 12 years or older to sign a form stating with whom he or she wants to reside. The only way for a child to directly express his or her preferences is to meet with the judge in chambers. In effect, the judge decides whether to interview a child under age 12 with respect to the question of parental custody and the child's wishes concerning visitation, among other things.

Ohio

In Ohio, one or both parents may request a shared parenting arrangement and propose a shared parenting plan. There are many factors that can determine whether shared parenting is in the best interests of the children. If the court determines that shared parenting is not in the children's best interests, it will select one parent as the residential parent, and that parent will be awarded custody. The other parent will get parenting-time rights.

While Ohio law does not specify an age at which a child may choose his or her own living arrangements, custody actions are decided on a case-by-case basis. The determination of custody is based on a number of factors, including the wishes of the parents, the child, and the child's relationship with parents, siblings, and any other person who may significantly affect the child's best interests.

Under Ohio law, it is possible for a parent to urge the court to interview the child to find out the child's preference. In such an instance, the court will conduct an in-camera interview. Also, the child may meet with court personnel as appropriate, but the child's parents must not be present at the meeting. The court will use its discretion to appoint a GAL for the child, upon the motion of either parent.

There are also certain guidelines to be followed while interviewing a child in chambers. First, the court must determine the reasoning ability of the child. Based on that, it may decide not to ask the child his or her wishes with regard to the issue of custody. The court needs to rule out any other special circumstances that would constitute grounds for disregarding the child's wishes. Only then will the court discuss custody options with the child.

Conclusion

In New York, the change from a GAL to an AFC model has put a tremendous burden on children, who lack the maturity to evaluate what is in their best interests. They are being forced to make decisions far beyond their emotional and intellectual capabilities and are routinely manipulated by caring but emotionally charged parents.

If the AFC role had been designed as a neutral voice that would put the wishes of the child in perspective and provide the court with the full picture, it might have worked. But AFCs are not a neutral voice, and judges have come to rely on the AFC's full-throated advocacy. The results have been disturbing, for a number of reasons.

*****
Yonatan Levoritz is a Family Law practitioner in New York.