Most Popular Questions Asked of the Attorney for Child (AFC) - Custody and Visitation Matters - Attorney Nick Tuttle
Most Popular Questions Asked of the Attorney for Child (AFC) - Custody and Visitation Matters
I have been on the Attorney for Child (AFC) panel in four different counties throughout upstate New York, and regardless of the county, the questions remain the same. Hopefully this article will be a good resource to anyone who has just had an AFC assigned in their family court or divorce matter.
Why does my child have an Attorney?
The AFC is assigned by the Court to make sure the children have a voice in the outcome of the case. As an AFC, our role is exactly what the name implies. I am your child’s attorney. Just as your attorney is required to zealously advocate for your position, it is my duty to advocate for my client’s position, even if that client is a young child.
Years ago, we were known as Law Guardians. While that title is still commonly used (especially among long-term family law attorneys), that term carries a very different meaning. When we were Law Guardians, we were guided by what the individual attorney felt was in the child’s best interests. That is no longer the case, as we must advocate for a position consistent with what our clients want.
As with any rule, there are exceptions. When the AFC is convinced that the child lacks the knowledge or capacity to take a particular stance, or if the child’s wishes will result in a ‘substantial risk of imminent, serious harm to the child,’ the AFC is permitted to take a position contrary to the child’s stated wishes. Even so, if the child still wants their wishes known, the AFC is required to inform the Court of the child’s contrary position.
Can I schedule a meeting to sit down and talk with you about my side of the case?
The simple answer is, yes you may, but it may not occur for several reasons.
First, the AFC is subjected to the same ethical considerations as any other attorney. Thus, as an attorney on the case, I cannot talk directly to you if you have an attorney. Parties can talk to parties, and attorneys can talk to attorneys, but attorneys cannot talk to represented parties. An exception exists if your attorney consents to such conversation. In my practice, for as many attorneys who are comfortable with that conversation, others strictly prohibit it.
Second, going back to question one, it is important to remember that our job as AFC is to advocate for our child’s position. Even if a parent thinks he or she is the obvious choice in a best interests determination, I may still be obligated to take another position as I am guided by what the child wants. By sharing secrets or your version of the case, I may end up using that information to my advantage, and against you, should the case proceed to trial.
When can my child decide who he or she wants to live with?
There is no shortage of case law throughout New York State which attempts to explain what factors play into a ‘best interests’ determination. One of those factors is the wishes of the child. However, the case law makes it clear that the wishes of a child are not determinative of the matter. There are cases where the wishes of a child of a particular age are given great weight, and then cases where the wishes of a child of the same age are given less weight.
There is no rule set in stone. Certainly, the wishes of a seventeen year old are almost sure to carry more weight than those of a seven year old. But just because a child is a teenager, it is not automatic that his or her wishes will be a determining factor. Instead, each case is fact specific. I have had ten year old clients who are more mature or intelligent than some of my teenaged clients and I have had teenaged clients who are more mature than their parents. While there is no definite answer, it is typically a balancing act of many factors, specific to your child and the case as a whole.
Does my child have to come to Court?
The answer is almost always, NO! If your child has to be in Court, the AFC will be sure to tell you. If you are in Family Court, you will likely have a variety of court appearances before anything is decided. Your child should not be present for these appearances. However, if your case proceeds to trial, the judge, AFC, or other counsel may request a “Lincoln Hearing” for the child(ren).
A Lincoln Hearing is a way for the child to testify before the judge without the pressures of having to do so in front of Mom, Dad, or other custodian. Only the AFC, judge, child and other court staff will be present. The conversation will be recorded, but the testimony will not be given to the parents or their attorneys. Other than a Lincoln Hearing, in the realm of custody and visitation, your child should not come to Court.