Children Deserve Attorneys Not Guardians Ad Litem

by Karen J. Freedman and Glenn Metsch-Ampel

We write to correct significant inaccuracies in the recent commentary about the legal options for adolescents who are the subject of custody and child protective proceedings. (NYLJ, 3/8/2022: Are There Legal Options for an Adolescent Who Says, 'My GAL Doesn't Speak for Me'?)

The authors seem not to know the current state of the law in New York and appear to be unfamiliar with the NYS Bar Associations' Standards on the Representation of Children. In New York, the assignment of a court-appointed Attorney for the Child (AFC) is statutorily mandated (not an "option") for every subject-child in every child protective proceeding. Moreover, these young people have the right to be present at these proceedings. The authors also seem unaware that the Rules of the Chief Judge are a national guidepost that recognizes the role of the AFC as an attorney bound to zealously advocate their client's expressed wishes, except in the most extraordinary circumstances where there is lack of capacity or substantial risk of imminent, serious harm to the child. 22NYCRR§7.2(b).

In nearly 40 years of representing children through our interdisciplinary legal and social work model, we know how critical the child's perspective is and how capable young people are of expressing what they need in order to feel safe and cared for. As far back as 1998, the Statewide Law Guardian Advisory Committee acknowledged the need to ensure that the child's position was represented in such proceedings. In the decades that followed, essentially identical statements have been included in the Matrimonial Commission Report (Miller, 2006) and the NYS Bar Association Standards for Attorneys Representing Children in Custody, Visitation, and Guardianship Proceedings (June 2008). 

Consequently, in the New York City Family Courts, when a jurist determines that the subject-child should have an independent advocate in custody, visitation and related proceedings, as is almost always the case, the court assigns an Attorney for the Child, not a Guardian Ad Litem. The AFC is the only participant in the litigation who is duty bound to present a counseled, legal advocacy position to the court that is based on a dispassionate and objective articulation of the child's wishes and needs. This client-directed model allows young people disclose information to their attorneys that goes to the heart of the matter; information that they may be uncomfortable disclosing to either parent but that will be freely disclosed to their attorney and often may be key to the resolution of the case.

We agree that the legislature should provide clarity with respect to when the child's voice is heard in the context of custody/visitation proceedings. Research and experience in child protective and custody proceedings have long demonstrated that an Attorney for the Child is invaluable to both the court and to the child. The Legislature should recognize that the appointment of an Attorney for the Child in all cases in which the child's physical and legal custody is at stake is absolutely essential to the fair and equitable administration of justice. And, the decision for a child to be heard in these proceedings should similarly be decided by the client in consultation with their counsel.

Karen J. Freedman is the executive director and Glenn Metsch-Ampel its general counsel and deputy executive director at Lawyers for Children.