Mistakes to Avoid with the Attorney for the Child or Guardian Ad Litem

If you divorce with children or have a custody case in New York state, an attorney for the child will likely be appointed to represent your children. The attorney for the child(ren) can be highly influential as to whether or not you get custody of your children. To that end, it is essential to optimize that relationship and avoid common pitfalls.

What Is an Attorney for the Child(ren)?

An attorney for the child (in other states known as a law guardian) is an attorney with specialized training who the judge appoints to be the attorney for your child in your divorce or custody case. Your child is their client. The attorney for the child is an equal party in the custody portion of your case with the ability to present evidence, call witnesses, and cross-examine other witnesses. However, if the court appoints the attorney as the guardian ad litem, then that attorney can be called as a witness at trial. Most often the court will alter the role of the guardian to become an AFC at trial so as to avoid the guardian from having to testify.

Their role is to argue to the court what the children’s wishes are. Whereas if a guardian ad litem is appointed, (typically where the child is under the age of 5) the attorney will voice to the court what they believe to be in your child's best interests regarding custody. Judges are particularly interested in the case the attorney for the child presents because they come into the case as neutral, gather evidence, and build a case based on the children's wishes. The attorney for the child is an extremely key part of your custody case.

By statute, only if the attorney for the child believes that the child’s judgment is impaired, and in imminent harm if his voice were honored, can the AFC substitute his/her judgment for the child’s. In all events, however, the AFC must present his/her client’s wishes regardless of substitution.

Avoid these mistakes when working with the attorney for the child:

Mistake #1 Discounting the Attorney for the Child’s Importance

In a high-conflict divorce, you and your spouse are probably working with highly esteemed attorneys. Attorneys for the Children are chosen from a state panel, and any attorney with the proper training can be selected. If it’s a private pay attorney, you and/or your spouse will be required to pay their bill, or the state may pay them if not chosen from the private pay panel. None of this means that you should ignore the amount of influence they have on your case. You didn’t hire them, but their importance in your case should not be overlooked.

Mistake #2 Feeding Your Child a Script

The Attorney for the Child must meet your child and probably several times during the proceeding meet with your child and/or communicate via FaceTime or Zoom as well. You should not tell your child what to say to the Attorney for the Child. This almost always comes out, “My mom said I should say…” Instead, explain that the Attorney for the Child is a friendly person who is there to meet them and that they are safe with them and can talk to them. Though it may be difficult, try to trust the Attorney for the Child to evaluate your child’s feelings, needs, and wishes.

Mistake #3 Opposing All Contact by the Other Parent

When you meet with the Attorney for the Child you will have an opportunity to talk about your position on custody and what kind of parenting plan you are asking for. New York considers it to be in the child’s best interest to have contact with both parents in most cases. A parent who is trying to interfere with the parent-child relationship with the other parent can be deemed unfit. Therefore, unless your case has the most extreme circumstances (such as child abuse, domestic violence, or child neglect), you should not tell the Attorney for the Child that you think the other parent should have no contact with your child. Instead, make it clear you want your child to have both parents in their life and that you will support that relationship.

Mistake #4 Refusing to Speak to the Attorney for the Child

The attorney for the child will most likely seek to interview you and the other parent to get to know you and understand the situation. This is your chance to make a good impression, explain your point of view, and let them see your home so they can envision your child there. Unless your attorney specifically directs you not to speak to the attorney for the child, you should make time to meet them and talk. Refusing to talk to them or avoiding them means they never get to hear your side of the story or get a sense of what kind of parent you are. You always have the right to have your attorney present when meeting with the AFC.

Mistake #5 Lying to the Attorney for the Child

When you speak to the attorney for the child, they will ask about you, your job, your schedule, your relationship with the other parent, your home, your connection to your child, and more. It’s tempting to try to present the most positive image possible, but if you are dishonest, it is very likely the attorney for the child will discover this, and the lie will be more harmful than if you had been truthful, to begin with. Don’t share everything (your attorney can advise you about what to share and what not to mention), but be honest about the things you do discuss.

Mistake #6 Rebuffing the Attorney for the Child’s Settlement Attempts

Attorneys for the child are uniquely positioned to speak directly to both parents and the child and if a guardian ad litem report to the court regarding each of the parent’s homes, speak to the child’s treating therapists and physicians, their schools etc. they are an arm of the court. Similarly, the court empowers an attorney for the child to do the same type of investigation to assist his/her client in forming opinions and advising their clients like any other attorney would do for their client. They often can envision a settlement that would work for both parents and benefit the child. Often what they suggest as a settlement with the approval of their client will be what they advocate for if you go to trial, and judges tend to listen to the attorney for the child. It makes sense to consider settlement suggestions made by the attorney for the child because there is a good chance the judge will agree with their position. You’ll get the same result without a trial. Being willing to consider reasonable solutions also will help the attorney for the child view you positively.

Mistake #7 Not Staying in Touch with the Attorney for the Child

The attorney for the child will likely meet you and your child and do a home visit early in the process. It’s a good idea to keep the attorney for the child up to date with things that happen and impact your case. For example, if your child is diagnosed with a learning disability, they need to know that. If your ex refuses to allow you your scheduled visitation one weekend, they need to know that. Call or email them occasionally when you have important information they will want to know. This will keep them informed and make you look good to be on top of things and openly share information.

Mistake #8 Rejecting Suggestions or Requests by the Attorney for the Child

The attorney for the child can request or suggest that the parents attend parenting classes, attend mediation, have mental health evaluations, get mental health evaluations of their child, have custody evaluations, get substance abuse evaluations done, etc. They might also have tips or suggestions that could make transfer time easier for your kids (it’s often a high-stress time for children) or that could help improve communication with the other parent.

The attorney for the child has a lot of experience in these types of cases and often offers very practical suggestions. You might think you don’t need or want any of these things. However, if your attorney agrees, it is important to do them so that you appear to be proactive and positive.

Mistake #9 Being Rude to the Attorney for the Child

While it is important to be yourself, you should make the effort to be polite and friendly to the attorney for the child so that you make a good impression. If you come across as bored, annoyed, inconvenienced, or testy, it will impact what the attorney for the child thinks of you and their assessment of your case. Make the extra effort to be nice to them, and it will pay off.

The role of the attorney for the child in your custody case should not be underestimated.


Karen Rosenthal

Karen B. Rosenthal is a partner and co-founder at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 35 years of matrimonial law experience to bear in matters involving high-net-worth equitable distribution, contentious custody battles, and other high-stakes disputes. Certified as an Attorney for the Child and a frequent speaker on topics related to children going through high-conflict divorce, she has been recognized as a leading New York lawyer by Super Lawyers, Best Lawyers, Crain's New York Business magazine, and New York magazine.

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