When a matrimonial action involves a custody/visitation dispute, an Attorney for the Child (AFC) is often appointed by the Court either at the request of a parent or upon the Court's own initiative. The Court will order that either parent pay the Attorney's fees, or that the parents share the AFC's fees upon a pro rata basis, depending upon the parties' finances. Prior to 2007, the AFC was called a Law Guardian. The change in the title was made to make clear that the appointed Attorney or AFC is to represent and advocate the position voiced by the child to the appointed Attorney and not the position reflecting the AFC's own belief as to what is in the child's best interests.
The change in title was also made to make clear that the AFC does not represent the interests of either parent and may not, therefore, advocate for either parent. "In ascertaining the child's position, the AFC must consult with and advise the child to the extent of and in manner consistent with child's capabilities and have a thorough understanding of the child's circumstances."
The AFC speaks with the child (or children) and also speaks to both parents. The AFC may also, if he or she deems necessary, speak with the child's teachers, a child's therapist (if the child has one), the child's medical doctor, and sometimes the forensic examiner (if one is appointed in the case), or anyone else the AFC believes important to gather relevant information to enable him/her to advocate for the child. An AFC is required to explain all the options available to his/ her child-client and then advocate in accordance with the child's wishes. This rule is designed to insure that the child-client's wishes are clearly presented to the Court.
The AFC may only deviate from the child's wishes, and advocate a position that is contrary to the child's wishes, if (1) the child is "incapable of knowing, voluntary and considered judgment", or (2) there is a "substantial risk of imminent, serious harm to the child" if the child's wishes are granted. Thus, if the AFC determines that his client is "capable of knowing, voluntary and considered judgment" and that following the child's wishes will not result in a "substantial risk of imminent, serious harm", then, the AFC must "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 AFC may participate in discovery as well as relevant motion practice and advocate in written submissions on the motion for the child's position. Sometimes, the AFC will negotiate with the parents in an attempt to obtain a resolution that is in line with the child's interests. Finally, the AFC has the right, at a hearing or at a trial, to call witnesses and to cross-examine on behalf of the child. It is important to remember that the Attorney for the Child is the child's attorney and is advocating for the child, not for either of the parents, and, not necessarily for what the Attorney believes is in the child's best interest.