An “Attorney for the Child” (“AFC”) which in past years was referred to as a “Law Guardian,” is a court-appointed advocate for the child or children whose parents are embroiled in custody and parenting time issues in the context of divorce or other family law proceedings. Just as the parties to a divorce action have their attorneys, once the Court determines there is a need for the children to have an advocate promoting their best interests, the Court appoints such an attorney. In the typical divorce case where custody and/or parenting time is at issue, the Court appointment is made from a list of qualified attorneys who are experienced in representing the children. The Court will allocate the payment of the AFC’s legal fees between the parties based upon the parties’ respective incomes. The Court makes the selection as to which AFC will be assigned to the case and then issues an Order so that the appointment is made, the AFC gets paid and that AFC then becomes an “attorney of record” in the pending litigation.

Once the AFC is appointed by the Court, the AFC speaks with the child or children and may also speak to either or both of the parents. The AFC may also speak with school personnel, a child’s therapist, the forensic examiner appointed in the case (if any) or anyone else the Attorney considers appropriate to obtaining the relevant and necessary information to enable him/her to communicate the child’s position to the Court on behalf of the child. If a child is too young to verbalize his/her thoughts, the Attorney for the Child may substitute his judgment and argue the position deemed to be in his client’s best interests.

At a hearing or during a trial, the AFC has the right to call witnesses and to cross-examine on behalf of the child. The AFC is there to ensure that the Judge hears an unbiased view of what is in the child’s best interest, not the view necessarily that either parent would have, based upon each parent having their own agenda which is promoted by the parties’ respective attorneys.

Since the issues of custody and parenting time are generally the most emotionally driven issues in a divorce, many times, the AFC will assist in working out and settling these issues with the parties and their attorneys with the hope that a trial or hearing could be avoided. The general view is that litigation over children is definitely NOT in their best interest, unless absolutely necessary.

The AFC is the child’s attorney and therefore, the “attorney/client” privilege attaches to that relationship in just the same manner that such privilege attaches to either party’s relationship with his or her respective attorney. This means that a parent is cautioned against “cross-examining” the child after the child meets with the AFC to find out what the child said or the AFC said. Many times I find that a parent has put the child on the spot to find out things such as, “what did your lawyer say about me?”, “What did you tell the lawyer about me?” “What did your lawyer tell you to say to me?”… none of this is good! Even if there were no attorney/client privilege between the child and her attorney, putting a child on the spot in order to extract a “confession” is cruel, heartless and inappropriate and could never be in the child’s best interest. Putting children in this position chills their ability to be honest and open with their AFC and this would, therefore, negate the important role that an AFC is designed to play in these disputes.

By Robert B. Pollack, Esq., principal attorney at The Pollack Law Firm, P.C. : Our firm is focused solely on Nassau and Suffolk County divorce, separation and all other issues of matrimonial law, family law and mediation.

The Pollack Law Firm, P.C., serving clients in Nassau and Suffolk County, is always available to assist and represent parties in divorce and all other matrimonial and family law matters. Please call today to schedule a free consultation: (516) 938-3330.

DISCLAIMER: This article is intended to provide only general information for entertainment purposes and should never be relied upon as legal advice. One should seek the assistance of experienced matrimonial counsel to assist in explaining the law, options and making important decisions in any divorce, matrimonial or any family law matter. By reading this article, no attorney/client relationship arises in any manner whatsoever.

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