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RESOLVING A SPLIT OF AUTHORITY, THE COURT OF APPEALS HELD THE ATTORNEY FOR THE CHILD (AFC) HAS THE AUTHORITY TO APPEAL A CUSTODY DETERMINATION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, reversing the Fourth Department and addressing a split of authority, determined the attorney for the child (AFC) has the authority to appeal a custody determination if the child is aggrieved:

The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client when neither parent-party has appealed. The Second Department has endorsed the AFC’s authority to appeal on behalf of their client, emphasizing that the Family Court Act expressly “recognizes that an [AFC] has the right to pursue an appeal on behalf of the child” because it permits the AFC to file a notice of appeal … . The First and Third Departments have adopted the Second Department’s reasoning … . The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent-party appeals or otherwise indicates their support for the child’s appeal, reasoning that a “child in a custody matter does not have ‘full-party status’ ” and therefore cannot force their parent to ” ‘litigate a petition that [they] ha[ve] since abandoned’ … . * * *

The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings. However, the subject child—like any appealing party—must still meet the CPLR’s aggrievement requirement and other applicable jurisdictional requirements (see CPLR 5511 [only an “aggrieved party” may appeal]; Family Ct Act § 165 [a] [Family Court proceedings follow the provisions of the CPLR unless a different procedure is set forth in the Family Court Act]). Here, the children were aggrieved as the AFC argued against modifying the original custody order designating mother as the primary custodial parent and advocated that the children wished to remain primarily with her, but Family Court modified the custody order by awarding mother and father joint custody and shared residency. Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, CtApp 5-21-26

Practice Point: The attorney for the child (AFC) can appeal a custody determination where the child is aggrieved.

 

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