Custody of your children is of the utmost importance to you. Whether you are getting a divorce or seeking custody without being married, your custody case is a key moment in your life. Your custody case will involve both sides presenting their views and evidence to the court, but there is a third party in many custody cases who has a tremendous influence on the outcome of the case: the attorney for the child.
What Is an Attorney for the Child?
An attorney for the child is an attorney appointed by the court to represent your children in the custody case. In other states, they can also be called a guardian ad litem. Children are not a party in the custody case, but because the entire case is about them, an attorney for the child is appointed to make sure their interests are communicated to the court and protected.
The judge chooses the attorney for the child and each county in New York maintains a panel of qualified, trained attorneys to take on this role. In some instances, the attorney for the child’s fees are paid by the state, but in a complex case, the parents are generally expected to pay the fees.
The attorney for the child investigates the case and appears at every court appearance. They provide the court with a point of view that reflects what is in the best interest of the children. The attorney for the child has the opportunity to question witnesses presented by the parents' attorneys and to call witnesses of their own, present evidence, and make open and closing statements. They are treated just like a third party in the case.
If the judge needs to do an in-camera interview with your child (a private discussion in the judge’s office), the attorney for the child will accompany them for this. If the children are old enough (such as with teens) to form an opinion about custody, the attorney for the child may take the position the children request. In all other situations, the attorney for the child does an investigation and decides what they believe is in the best interests of the children and advocates for that.
Impact of the Attorney for the Child on Your Case
The attorney for the child can have a significant influence on your case. It's imminently clear what positions you and your spouse will take, but the attorney for the child can be unpredictable. Their opinion carries a lot of weight with the judge, particularly if the attorney for the child is someone who is respected in the legal community and has handled many cases before that judge in the past.
The attorney for the child is often considered to have the inside track on what is actually happening inside the family because they usually interview not only the parents and children and visit both homes, but they also often interview teachers, educators, other family members, and health care professionals involved with the children. They enter the case as impartial and form an opinion they present to the court. Because of this, the judge is always very interested in their opinion and position.
Attorneys for the child frequently try to settle the custody cases they work on, and because they are in a unique third-party role, they often can see a solution that will work for everyone. Settlements suggested by an attorney for the child are usually prescient, predicting how the judge will see the case. If the attorney for the child supports your position in the custody case, there is a strong chance you will win. In the reverse, if the attorney for the child opposes your position, there is a strong chance you will lose. The attorney for the child changes the stakes in your case from a one-against-one debate to a two-to-one opportunity.
Because of the attorney for the child’s influence and perspective, it's crucial that you do everything possible to develop a positive relationship with the attorney for the child and share your position in the case. Once an attorney for the child is appointed in your case, talk with your attorney about how to strategically work them. Find out what information your attorney thinks is important for you to share. It is never a good idea to be untruthful with the attorney for the child because they will see you in a negative light if it seems you lied. However, your attorney can help you highlight the facts you most want to share with the attorney for the child.
Appeal to the Attorney for the Child
Your interactions with the attorney for the child are crucial to the outcome of your custody case, so creating a constructive relationship is key. You absolutely need the attorney for the child to see and agree with your point of view of the case, but achieving that requires a delicate touch. First and foremost, it is essential that you are honest with the attorney for the child.
They have the ability to investigate you and your family thoroughly, and you can be certain any untruth will be uncovered. It is also necessary for you to be friendly, polite, calm, and helpful in all of your interactions. Treat the attorney for the child as an ally. Make yourself available to them at all times.
That being said, you must be strategic in how you work with the attorney for the child. You don't want to appear as if you are acting (do not rehearse), but you also must not appear as if you don't care. Find a happy medium in which you thoughtfully share why you think you should have custody and your concerns about the other parent while offering details supporting your position.
Be certain to make it clear you believe the other parent has an important role in your child's life, and no matter what, that you plan to nurture and support that relationship. Parents who do not support a relationship with the other parent may be considered unfit. Make it clear you have your child's best interests at heart above all else. Best interests of the child are the determinative words in a custody case.
The attorney for the child will want to speak to your child privately. Facilitate this meeting. Provide the attorney for the child with any information they request from you after confirming with your attorney that you should cooperate. Let the attorney for the child see your home and meet whomever you live with. Be cooperative and do not adopt an adversarial attitude. Be well-informed about your child, their schedule, and any special needs or concerns regarding your child so that you can have a real conversation with the attorney for the child about all of this.
Mistakes to Avoid with the Attorney for the Child
It can be tempting to think, particularly if you're paying their fees, that the attorney for the child works for you. They don’t. The attorney for the child functions independently and answers only to the judge and is there to represent your child. Adversely, do not dismiss them as unimportant to the case. They may not come across as high-powered, but the attorney for the child has many ways to make their opinion known, and the judge is tuned into all of them.
It's important not only that you yourself be honest with the attorney for the child but that you make it clear to your children that they should be forthright as well. Children should be encouraged to be open and honest with the attorney for the child without a parent as the puppet master in the shadows. Attempting to dictate what they should say almost always backfires spectacularly.
It's tempting to spend all of your interaction with the attorney for the child complaining about the other parent. While you do need to share concerns about their parenting, it's important to spend most of the time talking about yourself, your relationship with your child, your involvement in your child's life, and your plans and goals for your child's future. Give the attorney for the child a full-bodied impression of your family that highlights your role and sheds light on your spouse's parenting drawbacks. Try not to appear vindictive, overly angry, resentful, or ruthless when discussing your spouse.
Avoiding meeting with the attorney for the child or answering their questions will only harm your case. The attorney for the child may ask challenging questions, and it is important, to be honest. No case is perfect. You have likely made mistakes. Own them. Show that you are committed to doing better in the future. Be clear that you intend to parent with the other parent to raise your child.
Developing a constructive relationship with the attorney for the child takes time and attention, but it is well worth the effort since it can have a positive impact on your case.