Best Divorce Lawyer Manhattan: The role of AFC or GAL in custody cases.

Best Divorce Lawyer Manhattan: The role of AFC or GAL in custody cases.

Historically, the definition of the role of the attorney for the child has engendered a great deal of confusion. Many attorneys, and indeed many Judges, have viewed the role of the attorney for the child to be in the nature of guardian ad litem. It is clear, however, that the role of the attorney for the child is quite different from that of guardian ad litem. A guardian ad litem, who need not be an attorney, is appointed as an arm of the Court to protect the best interests of a person under a legal disability. In contrast, the role of the attorney for the child is to serve as a child’s lawyer. The attorney for the child has the responsibility to represent and advocate the child’s wishes and interests in the proceeding or action.  In this article, we will focus on the attorney for the child (or AFC) and their roles and importance in divorce and child custody cases. It is highly recommended that you consult with the best divorce lawyer Manhattan such as the Kleyman Law Firm to understand the issues related to custody.

Attorneys for children are appointed “for minors who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court” (Family Ct Act § 241). When the AFC is appointed by a judge in Divorce and Custody cases, the attorney for the child must zealously advocate the child’s position.  In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent and in a manner consistent with the child’s capacities and have a thorough knowledge of the child’s circumstances. Choose the best divorce lawyer Manhattan to help you with your custody case.

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.

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. While not an exact rule, the younger the child is, the more likelihood that the AFC will “substitute” the judgment of their client and represent a position opposite of the child’s wishes.

An AFC is particularly important in deciding which parent will be determined as the custodian parent in a divorce or custody case. They usually have the trust of the judge that appointed them to render a neutral decision that adheres to the theoretical ideals of child advocacy, to represent the “best interests of the child.”  While an AFC’s opinion and determination are merely one factor in the judge’s ultimate decision in a custody or divorce case, it is a significant factor in a judge’s determination. If the AFC is in favor of you becoming the custodial parent, it makes your case a little easier to prevail. However, if the AFC is in favor of your spouse or other parent in becoming the custodial parent, it makes your case that much harder to show to the judge that you are more capable of taking care of your children than your spouse or other parent.