Attorney for the Child (AFC) New York Custody Cases: A Parent's Guide
When a court appoints an attorney for the child (AFC), New York custody cases effectively gain a third lawyer — one appointed by the judge to represent your child directly, not you, not your spouse, and not the court. Under 22 NYCRR 7.2, the AFC is a true attorney for a client, which means they generally advocate for what the child wants, not for what the AFC personally thinks is best. Their position carries real weight with judges in Supreme Court matrimonial parts and in Family Court across Brooklyn, Queens, Manhattan, the Bronx, and Staten Island.
If an AFC has just been appointed in your case, the single most useful thing to understand is this: the AFC is a third lawyer in the room with independent access to the judge. How you handle that relationship matters.
What is an attorney for the child (AFC)? New York custody roles explained
The AFC is the child’s own lawyer. New York replaced the older term “law guardian” in 2007 precisely to make the role clear: this person represents the child, owes the child confidentiality, and advocates the child’s position in court.
The authority comes from Family Court Act § 241 and § 249, and from the Rules of the Chief Judge at 22 NYCRR Part 7.2. Those rules require the AFC to consult with the child, explain the proceedings in age-appropriate terms, and zealously advocate the child’s position — even when the parents, or the AFC, might disagree with it.
Importantly, the AFC is not a neutral evaluator. A forensic psychologist is neutral. A guardian ad litem acts in a protected person’s best interests. The AFC is an advocate with a client.
When do New York judges appoint an AFC?
- Contested custody or parenting-time disputes in a divorce filed in Supreme Court
- Family Court custody, visitation, and relocation petitions
- Cases involving allegations of domestic violence, substance abuse, or parental alienation
- Abuse and neglect proceedings (where appointment is mandatory)
- Any case where a judge believes the child’s voice should be heard independently
In an uncontested divorce where parents have already agreed on a parenting plan, an AFC is usually not appointed at all. AFCs show up when parents cannot agree.
Who are AFCs in New York City, and who pays for one?
In New York City, AFCs come from two main sources: private attorneys on the Appellate Division panels (First Department for Manhattan and the Bronx; Second Department for Brooklyn, Queens, and Staten Island), and institutional providers such as the Children’s Law Center, Lawyers For Children, and the Legal Aid Society’s Juvenile Rights Practice.
Payment depends on which court you are in:
- Family Court: AFCs are typically compensated at public expense under Judiciary Law § 35, or provided free by an institutional program. Parents usually pay nothing.
- Supreme Court (divorce): The judge commonly appoints a private AFC and allocates the fee between the parents — often pro rata by income, under the court’s counsel-fee authority in Domestic Relations Law § 237. A less-monied parent may pay a smaller share, or none.
AFC fees are one of the under-discussed costs of a contested divorce. If you are budgeting, read our breakdown of what a divorce costs in NYC and raise the allocation issue with your attorney at the time of appointment, not after the bills arrive.
What the AFC actually does in your case
The AFC does everything a lawyer does — for your child. That typically includes:
- Meeting with the child privately, usually at the AFC’s office, sometimes at school or at home, and often more than once over the life of the case.
- Appearing at every court conference and taking positions on temporary custody, parenting schedules, holiday access, and school issues.
- Investigating — speaking with teachers, pediatricians, therapists, and sometimes each parent (through counsel).
- Participating in discovery and trial: reviewing records, cross-examining witnesses, and sometimes calling their own.
- Making a recommendation or stating a position at the close of the case.
- Attending the Lincoln hearing — the in-camera interview where the judge speaks with the child privately. Under Matter of Lincoln v. Lincoln, parents and their lawyers are excluded; only the AFC attends with the child.
When can the AFC override what my child wants?
Rarely, and only on narrow grounds. Under 22 NYCRR 7.2(d)(3), an AFC may substitute their own judgment for the child’s stated wishes only if the child lacks the capacity for knowing, voluntary, and considered judgment, or if following the child’s wishes would likely result in a substantial risk of imminent, serious harm.
Even then, the AFC must inform the court of the child’s articulated position. So a teenager’s clearly stated preference is almost always on the record, one way or another.
AFC vs. guardian ad litem vs. forensic evaluator
Parents mix these three roles up constantly. They are not the same, and confusing them leads to real mistakes.
| Attorney for the Child (AFC) | Guardian ad Litem (GAL) | Forensic Evaluator | |
|---|---|---|---|
| Role | The child’s lawyer and advocate | Court-appointed protector acting in best interests | Neutral mental health expert |
| Takes direction from | The child | Own judgment of best interests | No one — evaluates and reports |
| Confidentiality | Attorney-client privilege with the child | Limited | None — everything can go in the report |
| Typical appointment | Most contested custody cases | Rare in custody; more common for incapacitated parties | When the court needs a clinical assessment |
| Testifies? | No — argues as counsel | Sometimes reports to the court | Yes, subject to cross-examination |
A practical consequence: anything your child tells the forensic evaluator may end up in a written report both parents read. What your child tells the AFC is privileged.
How much weight does the AFC’s position carry?
Substantial, but not controlling. The judge decides custody under the best-interests standard set out in Domestic Relations Law § 240 and refined by cases such as Eschbach v. Eschbach — considering stability, each parent’s ability to foster the child’s relationship with the other parent, home environment, and the child’s own wishes weighed by age and maturity.
The AFC’s position is one significant input. New York appellate courts have repeatedly held that a court is not bound by the AFC’s recommendation. In practice, though, when the AFC and a credible forensic evaluator align, that combination is difficult to overcome at trial — which is exactly why how you present yourself to the AFC matters so much.
How to work with the attorney for the child (AFC): New York custody dos and don’ts
Be cooperative, be organized, and be honest. AFCs in Kings County, Queens County, and the other NYC courts carry heavy caseloads and form impressions quickly.
Do:
- Respond promptly to the AFC’s requests for records, school contacts, and scheduling.
- Sign medical and educational releases without a fight unless your lawyer advises otherwise.
- Get your child to scheduled meetings on time and in a calm state.
- Route substantive communication through your attorney.
- Focus on your child’s routine, schooling, health, and needs — not on your ex’s flaws.
Don’t:
- Coach your child, rehearse answers, or tell them “what to say.” AFCs detect this fast, and it damages your credibility more than anything the child might have said on their own.
- Interrogate your child after a meeting with the AFC.
- Contact the AFC directly and repeatedly to vent.
- Disparage the other parent in front of the child.
In high-conflict custody matters, the parent who looks calmest and most child-focused in front of the AFC often ends up in the stronger position. That is not a trick; it is the actual legal standard playing out in real time.
Can you object to or remove an AFC?
Yes, but it is difficult and should not be attempted lightly. A parent can move to relieve an AFC for a conflict of interest, a failure to meet with the child, or demonstrated bias — but disagreeing with the AFC’s position is not a ground for removal, and a failed application can cost you credibility with the judge. Discuss any concerns with your own counsel first.
Where AFC issues come up most in New York City
Supreme Court matrimonial parts handle AFC appointments inside divorces; Family Court in each borough handles standalone custody and visitation petitions. The procedure is similar, but the fee allocation and the pace differ. Our New York child custody attorneys handle both, and fathers in particular often ask whether an AFC starts from a presumption against them — see our page on fathers’ rights in NYC for how New York law actually treats that question.
If your first court date is approaching, our guide to the first divorce court appearance covers what to expect in the courtroom itself. Outcomes vary with the facts of each case.
This article is general information, not legal advice. For advice on your situation, consult an attorney.
Facing a custody case with an attorney for the child involved? Call the Kleyman Law Firm at (212) 401-1977 to schedule a consultation.
Frequently Asked Questions
Does the attorney for the child represent me or my child?
The AFC represents your child only. They owe your child confidentiality and advocate your child’s position in court, not yours and not the other parent’s. You should never treat the AFC as a neutral party or an ally — communicate with them through your own attorney.
Who pays for the attorney for the child in New York?
In Family Court, AFCs are usually paid at public expense under Judiciary Law § 35 or provided free by programs like the Children’s Law Center. In Supreme Court divorces, the judge typically allocates the private AFC’s fee between the parents, often pro rata based on each parent’s income.
Can the AFC tell the judge what my child said in private?
The AFC advocates the child’s stated position but protects confidential communications. Under 22 NYCRR 7.2, the AFC may substitute their own judgment only if the child lacks capacity or following their wishes risks imminent serious harm — and must still inform the court of the child’s articulated wishes.
How much weight does the AFC’s recommendation carry in a custody decision?
Significant weight, but it is not binding. The judge decides custody under the best-interests standard in Domestic Relations Law § 240, weighing the AFC’s position alongside testimony, forensic evaluations, and the child’s age and maturity. Courts are free to reach a different conclusion than the AFC.
What age does a child get to choose which parent to live with in New York?
There is no magic age in New York. A child’s preference is one best-interests factor, given more weight as the child matures, and is usually conveyed through the AFC or a Lincoln hearing with the judge. Even a teenager’s preference does not automatically control the outcome.
