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Recent Column on Appointing Attorneys for Toddlers Relies on 'Careless and Ill-Informed Reading' of New York's Child Representation Rules

By Dawne Mitchell, Karen J. Freedman, Liberty Aldrich and Gary Solomon

In his article, “Why AFCs Should Not Be Appointed to Represent Non-Communicative Toddlers in Custody Disputes,” Peter Galasso argues that an Attorney For the Child (AFC) should never be assigned to represent a toddler or, by implication, any non-verbal child. In taking this position, Galasso evinces a flawed understanding of the role of the attorney for the child and ignores the well-settled history of AFC advocacy for toddlers and newborns.

Galasso blames an “absence of guidance from the Appellate Division” for the failure of his argument to gain traction among judges. In fact, the real reason his argument has failed to gain traction is that the legislature, the Appellate Division, trial court jurists, and the chief judge have all recognized the tremendous value in assigning counsel to represent children of any age in family court and state Supreme Court matters.

New York statutes mandate the appointment of counsel for children in certain proceedings, and grant the court discretion to appoint counsel for children in other proceedings—without regard to the child’s age. There is ample case law from the Appellate Division of each department in which a disgruntled parent has objected to the position taken by a young child’s attorney.

However, the Appellate Division has never questioned the value of having AFCs represent toddlers or newborns, nor have family court judges (including the undersigned executive director of the Children’s Law Center, who previously served as a family court judge). Rather, jurists invariably appreciate the benefits of independent AFC advocacy in contested litigation involving self-interested parties.

The AFC for a toddler or non-verbal child can play an important role in ensuring that the court receives all of the relevant evidence needed to make a child-centered determination. Absent an attorney representing the child, jurists are only able to review the partisan, cherry-picked evidence and arguments presented by lawyers on behalf of their self-interested adult clients. Galasso’s unsubstantiated assertion that judges “allow[] themselves to be potentially influenced by their favorite AFC on the issue of a toddler’s custody,” is both nonsensical and insulting to the judiciary.

Galasso engages in a careless and ill-informed reading of Rule 7.2 to support his argument that the rule never intended to provide for the appointment of counsel to young children. He asserts that rule 7.2 intended to replace “law guardians” (who he says were assigned “more as a quasi-social worker or guardian-ad-litem”) with attorney-advocates (whose role he says is “to give a child at the center of a custody battle a voice or ‘say’ in the outcome”). He claims that it is an “oxymoron” to require an attorney to zealously advocate a position that the child is not able to articulate. And, he argues that because it is impossible to comply with the requirement that the AFC must inform the court when taking a position contrary to the child’s articulated wishes, representing a toddler requires treating that requirement “as a nullity.”

Galasso completely misses the point. Under Rule 7.2, the AFC is not required to “zealously advocate” the stated position of a toddler. The AFC is required to zealously advocate the position formulated by the AFC according to Rule 7.2, the statute, and other practice guidelines, such as those promulgated by the New York State Bar Association. Rule 7.2 does not override F.C.A. 241 which states that an AFC’s role is to “protect the child’s interest” in addition to “express their wishes to the court.” Although the child’s attorney is no longer called a law guardian, in cases involving toddlers and newborns, the AFC’s advocacy role is closer to the law guardian/best interest model than to a direct advocacy model. The question of whether Rule 7.2 intended to preclude the assignment of counsel to very young children is answered by the explicit existence of provisions for cases in which the child lacks the capacity for knowing, voluntary, and considered judgment.

Galasso argues that requiring parents of means to pay the cost of an AFC places an unjustified burden on the adult participants in the litigation. He characterizes the work of the AFC as “[p]erhaps the easiest money to be made in practicing matrimonial law.” In reality, the AFC’s job is arguably the most difficult in a matrimonial proceeding. Following the guiding caselaw and Rule 7.2, the AFC must be an active participant in all phases of the litigation. Too often, this includes responding to baseless motion practice, and briefs filed in frivolous appeals by matrimonial attorneys who seem to be taking advantage of their clients’ deep pockets.

While it may not be necessary to assign an AFC to represent a child in every custody case, assigned counsel for the child can play a critical role on behalf of even the youngest children. A custody case must be focused on the child, and in contested custody proceedings judges can best determine a child’s legal interests when a child, of any age, is represented by independent legal counsel—an AFC.

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