The function and responsibility of the Attorney for the Child is to zealously represent the wishes of his or her client.
In 2007, the role of the Law Guardian was changed by a newly–promulgated rule of the Chief Judge, 22 N.Y.C.R.R. §7.2. This rule changed the name of the position from "Law Guardian" to "Attorney For the Child" and requires the attorney to zealously advocate for the child's position, in consultation with the child, so long as the child is capable of "knowing, voluntary and considered judgment."
Pursuant to the Rules of the Chief Judge, at 22 NYCRR 7.2, the function of the Attorney for the Child is defined as follows:
Ҥ7.2 Function of the attorney for the child.(a) As used in this part, "attorney for the child" means a law guardian appointed by the family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.
(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.
(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.
(d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position.
(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.
(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.
(3) When the attorney for the child 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 substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position.”
A child client is entitled to independent and effective representation (see Davis v Davis, 269 AD2d 82; Matter of Colleen CC., 232 AD2d 787).
In order to represent a child effectively, an Attorney for the Child should have regular contact to ascertain the child’s wishes and concerns and to counsel the child concerning the proceeding (See, Matter of Christopher B. v Patricia B., 75 AD3d 871 [Family Court erred because its order was issued before the attorney for the child could interview his client, thus prohibiting the attorney from taking an active role in and effectively representing the interests of his client]; Matter of Lamarcus E., 90 AD3d 1095 [The Appellate Division relieved the appellate attorney of her assignment, determining that the child client had been denied effective assistance of counsel. “Counsel’s failure to consult with and advise the child to the extent of and in a manner consistent with the child’s capacities constitutes a failure to meet her essential responsibilities as the attorney for the child. Client contact, absent extraordinary circumstances, is a significant component to the meaningful representation of a child.”]; see also Matter of Dominique A W, 17 AD3d 1038, lv denied 5 NY3d 706).
An Attorney for the Child should not advocate a position that is contrary to her clients’ wishes, substituting her own opinion for wishes of her client, unless there has been an allegation that the child lacks the ability to make a knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child.
In, Michael H. v. April H., 34 Misc.3d 519, 934 N.Y.S.2d 685 (Fam. Ct. Clinton Co. 2011) the Family Court declared a mistrial in a custody case where the Attorney for the Child advocated a disposition which contradicted the child's wishes.
The somewhat newly revised Family Court Act § 241, which became effective on April 14, 2010, declares that, “Minors who are the subject of Family Court proceedings or appellate proceedings originating in the Family Court should be represented by counsel of their own choosing or by assigned counsel. This declaration is based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition. This part establishes a system of attorneys for children who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court.”
The same rules apply to the attorney representing a child in a Family Court proceeding, as the ethical requirements apply to all attorneys. The Attorney For the Child must follow the child's wishes to refrain from taking a position for or against requested relief where the child has the capacity to take such a position and is not at imminent risk of harm, regardless of whether the attorney believes that the grant or denial of the requested relief would be in the child's best interest (see 22 NY CPR 7.2[d][2]). [65 A.D.3d at 1352]
The Appellate Division has not yet noted the precise age of a child adequately prepared to make a knowing, voluntary and considered judgment, but, in Kreiger v. Kreiger, 65 A.D.3d 1350, 886 N.Y.S.2d 463 (2d Dept. 2009), the Appellate Division did acknowledge that the child was an adolescent and therefore presumably of sufficient age to comprehend the proceedings and articulate a position, or at least was able to do so with her attorney's input and assistance.
In sum and substance, an attorney who has taken on the role of “Attorney For the Child” must advocate for his or her client’s wishes. The Attorney for the Child, unlike the formerly titled “Law Guardian,” may not insert his or her recommendation as to what is in the child’s best interests, unless it has been found that the child lacks the ability to fully understand the situation or to make a knowing decision; or if it would appear that a threat of imminent harm could result as a consequence of the child’s wishes.