When parents cannot agree on child custody issues, the court must step in to decide the matter. However, before a decision is rendered, one of the first steps taken is for the judge to appoint an attorney to represent the child(ren). The attorney serves a valuable function and can help resolve the conflict before the matter escalates further through the judicial process.
How Do Courts Decide Child Custody?
New York promotes joint custody and encourages parents to resolve their custody disputes amicably. If parents cannot do that, the court must decide based on what is in the best interests of the child. To make that determination, the court goes through a multi-step process. First, the judge appoints an attorney to represent the child. The attorney determines the children’s wishes and concerns and reports what the children say to the judge. This process is discussed further below. If that fails to resolve the conflict, the judge may order a forensic investigation with a forensic psychologist or mental health professional. If the case goes to trial, the report of the forensic investigation will be considered by the judge along with witnesses presented by each side. At each step in this process, the parties will be encouraged to settle the matter on their own.
What Are the Responsibilities of an Attorney Appointed to Represent a Child?
The attorney’s role is to meet with and ask questions of the children to determine their wishes. The attorney is only supposed to report to the judge what the children said and not give an opinion. However, the attorney may substitute his or her own judgment and provide an opinion in certain circumstances after he or she expresses the children’s wishes. This would apply if the attorney felt the children were being manipulated by either or both parents or were not able to make choices in their own best interests because of their “tender years” (i.e., they are too young to know what is best for them). Whether to consider the attorney’s opinion is decided on a case-by-case basis.
Importantly, the attorney will also interview the parents to understand their views and the source of their conflict. This can help identify for the court what demands by the parents are realistic. The attorney can also investigate the parents’ claims and determine whether they are true, false or stale (i.e., address old issues). This includes claims of abuse. However, as to abuse, the attorney only conducts a basic investigation, not one on par with those conducted by the Administration for Children’s Services.
How Can the Child’s Attorney Influence the Judge?
Even if the attorney does not give an opinion, the judge does take the attorney’s report into serious consideration. The attorney has a duty of loyalty to the child as opposed to the parents’ attorneys who have duties only to their clients and are arguing in their client’s interests. As a result, the judge may give more weight to what the child’s attorney says about what the child wants.
Further, the attorney’s investigation can verify whether the parents’ claims are legitimate, which can also influence the judge’s determination. As a result, parents should pay close attention to the attorney’s findings and consider settling rather than having the matter go to a forensic psychologist who will conduct a much more intensive and invasive investigation.
If you are a parent considering divorce, it is important to work with an experienced attorney. Contact us today to discuss how we can help you find the best resolution of your divorce and custody issues.
