Wednesday, August 13, 2014

NEW YORK CHILD CUSTODY - ROLE OF ATTORNEY FOR CHILD

Attorneys, judges, etc. are human and we all have our opinions, bias, prejudices, etc. Many times I have heard complaints, from clients or opposing side in matrimonial matters, regarding the position taken by the attorney for the child.

This recent case came to my attention...Shaw v. Bice, --- A.D.3d ---, --- N.Y.S.2d --- (Fourth Dept. 2014)(2014 WL 1855552)(2014 N.Y. Slip Op. 03410)(May 09, 2014) and I believe it is important for litigants in custody matters to recognize this rule regarding the attorney for the child:

"The Rules of the Chief Judge provide that an attorney for the child 'must zealously advocate the child's position' and that, '[i]f the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests' (22 NYCRR 7.2[d][2]; see Matter of Swinson v. Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d 862). Nevertheless, '[w]hen the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position' (22 NYCRR 7.2[d][3])."
 
Question: the court states "the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so"...it would be my opinion that the attorney for the child must inform the child of this right. But what if the child is very young or otherwise is unable to understand this...should the attorney for the child inform the court of the child's wishes even if the child did not state to the attorney that the child wants the attorney to do so?

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