The Attorney for the Child is an attorney appointed by the court in New York divorce and custody cases to represent the interests of the child in the case. They are specially trained and experienced lawyers who agree to ensure that a professional speaks up for what is in the child's best interests during the case.
Role of the Attorney for the Child
The attorney for the child is treated just like another attorney in the case. They are present at all court appearances and have the opportunity to call witnesses, present evidence, and cross-examine witnesses. The attorney for the child also must agree to any settlement in the case for it to be approved by the court.
Courts pay attention to the attorney for the child’s stance in the case because they are there to represent what is best for the children. If the child is an older teen and is capable of having a mature opinion, the attorney for the child may take the child’s position and argue for that, even if they do not personally believe that is what is best for the child (this is a somewhat controversial point, but the attorney for the child is the child’s advocate and can make the choice to take that position).
In many cases, the attorney for the child also informally takes on the role of mediator. They can often see a path forward that both parents would agree to which will benefit the child. Having an experienced, third-party attorney suggests a mutually beneficial outcome can defuse tensions, assist negotiations, and help the parties reach a settlement.
Meeting the Child
Since the child is the attorney for the child’s client, the attorney for the child must have the opportunity to meet with the child in private to talk about the case. Even if the child is too young to have a mature opinion about the case, the attorney for the child usually will want to have an age-appropriate meeting with the child. Keep in mind that attorneys for the children are trained to work with children and know how to interact with them appropriately while gathering information for the case. For very young children such as babies, toddlers, or preschoolers, the attorney for the child may just want to see them briefly in the company of a parent.
Most attorneys for the child prefer to meet the child in their home environment – going to the child’s current primary residence and meeting the child there. This provides an opportunity to talk with the child in comfortable surroundings, encourages openness, and lets the child share toys or interests. The attorney for the child is not there to grill the child but simply get to know them a little. The attorney for the child will likely visit the other home as well but may not see the child in that environment in every case.
In addition to meeting the child, the attorney for the child will usually interview both parents. If there are other people in the home (new partners, stepsiblings, half-siblings, or other relatives), they may also meet these people. The goal is to get to know the parents and see the home environments the child is exposed to.
The attorney for the child may also interview other parties involved with the child or know the issues in the case.
This could include:
- Health care providers (doctors, psychologists, therapists, physical therapists, etc.)
- Teachers, school aides, administrators, and guidance counselors
- CPS workers
- Coaches and extracurricular instructors
- Neighbors or friends
- Parents of the child’s friends
Records and Evidence
Since the attorney for the child is a party to the case, they can subpoena records and collect evidence.
It is common for the attorney for the child to obtain:
- The child’s medical and mental health records
- Educational records (report cards, assessments, IEPs, etc.)
- Social services records
The attorney for the child can take photographs and videos themselves as well. All of this can be submitted at trial as evidence.
They may ask for releases to view the parents’ medical and mental health records. It is up to the parents’ attorneys to assess and decide on these requests.
Requests for Evaluations
The attorney for the child can ask the court to order evaluations, including:
- Mental health evaluations of the child and/or either parent
- Medical exams if there is a concern about the child’s condition
- Substance abuse/addiction evaluations of the child and/or either parent
- Custody evaluation by a mental health expert
The reports from these evaluations can be entered into evidence at trial. The reports are also often useful in pointing the way towards a settlement.
The attorney for the child will appear at every pre-trial conference or appearance and will fully participate in the trial. If the case is a divorce, the attorney for the child is only involved in the custody part of the trial. All three attorneys, including the attorney for the child, have the opportunity to make opening statements. The lawyer for the petitioner will present their case first. The attorney for the child has the opportunity to cross-examine their witnesses. The lawyer for the respondent presents next, and the attorney for the child has the opportunity to cross-examine their witnesses as well. Then the attorney for the child presents their case, calling witnesses and presenting evidence. Both attorneys for the parents can cross-examine the attorney for the child’s witnesses. All three attorneys have the opportunity to make closing statements.
In some cases, the judge may decide they want to interview the child. This meeting happens in the judge’s chambers (office). The attorney for the child accompanies the child to the meeting. No other attorneys are present. A court reporter is present and creates a transcript of the meeting. However, the transcript is unavailable to the other attorneys or parents. This is to protect the child from retaliation by the parents. The judge has a friendly conversation with the child. The older the child is, the more weight their preferences will have with the judge.
The attorney for the child is an equal party in your custody case. They are there to represent your child’s best interests. Expect them to take an active role in the case. It is imperative that you befriend the attorney for the child and gently share your position and concerns with them. It is also important to be honest and forthright. Lying to the attorney for the child almost always backfires. Talk with your attorney about a strategy for how you should interact with the attorney for the child in your case.