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A CHILD IN A CUSTODY PROCEEDING IS ENTITLED TO EFFECTIVE ASSISTANCE OF COUNSEL BY THE ATTORNEY-FOR-THE-CHILD (AFC), WHICH INCLUDES ADVOCATING THE CHILD’S POSITION EVEN IF THE AFC DISAGREES (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined the child received ineffective assistance in this modification of custody proceeding. With a couple of exceptions, even if the attorney-for-the-child (AFC) doesn’t agree with it, he or she must argue the child’s position:

… [T]he AFC “must zealously advocate the child’s position” (22 NYCRR 7.2 [d]). “[I]n ascertaining the child’s position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances” (22 NYCRR 7.2 [d] [1]). “[I]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child’s best interests” (22 NYCRR 7.2 [d] [2]). There are two exceptions, not relevant here, where the child lacks the capacity for knowing, voluntary and considered judgment, or following the child’s wishes is likel… y to result in a substantial risk of imminent, serious harm to the child (see 22 NYCRR 7.2 [d] [3]).

… [A] child in an article 6 custody proceeding is entitled to effective assistance of counsel … , which requires the AFC to take an active role in the proceeding … .

Here, the AFC at trial made his client’s wish that there be a change in custody known to the court, but he did not “zealously advocate the child’s position” (22 NYCRR 7.2 [d] …). He did not cross-examine the mother, the police officers, or the school social worker called by the father, and we agree with the AFC on appeal that the trial AFC’s cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child’s position . His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother’s motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client’s wishes  … . Matter of Sloma v Saya, 2022 NY Slip Op 06587, Fourth Dept 11-18-22

Practice Point: The attorney-for-the-child (AFC), absent two exceptions not relevant to this case, must argue the child’s position in a modification of custody proceeding even if he or she disagrees. Here the AFC didn’t cross-examine witnesses whose testimony was unfavorable to the child’s position and questioned witnesses in a manner which elicited testimony against the child’ position. The child was not afforded effective assistance of counsel.

 

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