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FAMILY COURT SHOULD HAVE APPOINTED AN ATTORNEY FOR THE CHILDREN IN THIS CONTESTED CUSTODY MATTER (SECOND DEPT).

The Second Department, reversing Family Court, determined an attorney should have been appointed for the children in this contested custody matter:

The appointment of an attorney for the child in a contested custody matter is “the strongly preferred practice” … . An attorney for the child “is tasked with advocating for the child’s wishes and best interests, precisely because the child has a real and vital interest in the outcome and a voice that should be heard”… . Nevertheless, the appointment of an attorney for the child “is discretionary, not mandatory” … . In making the determination whether the appointment of an attorney for the child is warranted, courts should consider, inter alia, the age of the child and the possibility of prejudice to the child … .

Here, the Family Court improvidently exercised its discretion in declining to appoint an attorney for the children in light of the ages of the children, ranging from 12 to 16 years old at the time of the hearing, the antagonistic nature of the parties’ relationship, and the parties’ conflicting assertions regarding each other’s conduct … . Matter of Weilert v Weilert, 2021 NY Slip Op 00850, Second Dept 2-10-21

 

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