In Custody Cases, Children Play a Key Role in the Fair Administration of Justice
Editor’s note: This letter was submitted in response to family law attorney Robert Z. Dobrish’s column “Raising Children’s Rights (In Custody Proceedings),” which the Law Journal published on March 10.
The author of “Raising Children’s Rights (In Custody Proceedings)“ concludes by asking, in part, “How far away are we from allowing children to participate fully in the determination of what is in their best interest?”
Thankfully, we are even closer than Mr. Dobrish may think.
As Dobrish acknowledges, there is ample case law establishing the right of youth who are represented by Attorneys for Children (AFCs) to the robust and effective assistance of counsel mandated by the attorney-client relationship.
In fact, case law holds that it may rise to the level of ineffective assistance of counsel if the AFC fails to actively engage in the representation of their client. It is also worth noting that, although Dobrish states that, “[i]t is not yet clear … whether a child can initiate a motion to alter the custodial arrangement once an AFC has been appointed,” there is appellate law holding that the AFC’s interest in the welfare of the child is sufficient to give the AFC standing to seek a change of custody. Renee B. v. Michael B., 227 A.D.2d 315, 642 N.Y.S.2d 685 (1st Dept. 1996)
When Dobrish asks, “How far away are we from the day when a child might have the right to employ counsel and initiate a custody proceeding?” The answer is: not far at all.
At least one family court has already determined that the attorney-client relationship between the AFC and their client includes the “valued substantive interest” of “a party’s right to be represented by counsel of their own choosing … which should not be interfered with absent a clear showing of [a conflict].” M.M. v. K.M., 62 Misc.3d 487, 88 N.Y.S.3d 819 (Nassau Co. Fam. Ct. 2018).
At Lawyers For Children, we have had youth contact our office directly and request that we represent them.
To date, no judge has denied our request for assignment as AFC on a custody case when a child has reached out to us for representation.
As the right of children to fully participate in the court proceedings that directly impact their lives grows, we stand alongside our clients and the courts that have already recognized the key role that a child can play in the fair administration of justice.
Karen Freedman and Glenn Metsch-Ampel are the president and executive director, respectively, of Lawyers For Children