Lawyers for the Children in New York State

04/04/2016 06:32 pm ET Updated Apr 05, 2017

Since 2007, New York State lawyers have served as "attorneys for the children" (sometimes also called "law guardians") in custody disputes in divorce proceedings. Before "attorneys for the children" existed, children involved with these proceedings had "guardians ad litem" for the suit. The change in terminology reflects a change in the role of the representative of the child or children. By illustration, elderly and/or incapacitated people are routinely appointed guardians ad litem. That is to say, today, guardians ad litem represent the interests of those who are not of sound mind or are otherwise unable to advocate for themselves in any important way, or who are in danger. Incapacitated people, for example, may not be able to communicate meaningfully with others. They require the substituted judgment of a guardian ad litem to decipher, on the guardian ad litem's own terms, the best interests of his or her client, and to articulate those interests.

The use of the term "attorney for the children" (also called "AFC" here) to refer to a lawyer who represents a child in a divorce proceeding may be seen as an attempt to distance the role of this attorney from the guardian ad litem, who uses substituted judgment to advocate for those who cannot communicate meaningfully with others. Absent unusual circumstances, children -- even young ones -- can communicate meaningfully, and can often articulate their wants and needs in a cogent and clear way. Attorneys for the children are tasked with reporting to the court these wants and needs, as they relate to custody, visitation, and parenting time. In the Spring 2015 issue of the Family Law Review, a publication of the New York State Bar Association, in an article titled Client­ Directed Representation Makes Good Sense, Patricia Miller Latzman maintains that "as the child's attorney, the [AFC] consults, counsels, advises and assists the child in rationally forming and articulating her position. With the [AFC's] assistance, a child is better able to understand the real consequences of her position."

However, ironically, AFCs are hamstrung in their crucial role as counselors in a way that attorneys for adults are not. While children are often able to articulate their wants and needs with respect to custody etc., those articulations often do not incorporate the type of reflection present in adults making crucial decisions about their own lives. By compelling AFCs to parrot the wishes of their young clients rather than interpose their own judgment, born not only of their "advanced" years but also of their experience as lawyers and counselors, they may in many cases be doing a disservice to their young clients.

Probably the most difficult task of the AFC is helping the child to articulate his wishes regarding custody and visitation. Latzman maintains that by "explaining options and recommendations the [AFC] avoids placing the child in the untenable position of having to choose one parent over another. By discussing issues, consistent with his or her level of understanding, the [AFC] provides the child with the necessary guidance to avoid poor decisions based on impulsivity or desire for pleasure. The presence of the [AFC] impedes the parents from pressuring the child or encouraging decisions through permissiveness."

Of course, the opposing camp argues that AFCs ought to go beyond simply "providing the child with...guidance to avoid poor decisions." This camp views the issue of "guidance" as muddy rather than straightforward, and argues that AFCs must be more directive and specific in their discussions with their young clients vis-­à-­vis custodial placement. Guidance is one thing, and advice is another; according to this camp, AFCs are undermined as counselors by limitations on their ability to give advice.

While the advance from "guardian ad litem to "lawyer for the child" is a positive one, it is important to guard against limiting too severely the AFCs ability to guide his or her client (to sway the child in a direction the AFC thinks is appropriate). The age of the child should affect the degree to which the AFC veers from the child's wishes. The younger the child, the more the AFC should actively influence the child's wishes.