In family court proceedings involving children, the court may appoint an Attorney for the Child (AFC) to represent the legal interests and expressed wishes of a minor. Previously referred to as “Law Guardians,” the title was officially changed in October 2007 to more accurately reflect their role as attorneys, governed by the same ethical obligations as any other lawyer. Their function is defined in 22 NYCRR §7.2, a rule that outlines how attorneys for children should operate in New York courts.
Ethical Duties and Legal Standing
An AFC is not merely a passive observer or fact-finder. They are legal advocates, bound by attorney-client confidentiality, conflict of interest rules, and ethical standards such as those barring unauthorized disclosure of confidences or attorney work product. The child, though a minor, is a full party to the litigation and is entitled to zealous legal representation, including participation in all hearings and stages of the case.
The AFC has the right to:
- Receive all court filings
- File motions or applications on the child’s behalf
- Participate in settlement negotiations
- Cross-examine witnesses and conduct trials
Determining and Advocating the Child’s Position
The AFC’s core responsibility is to advocate for the child’s position, not to act as a neutral party or guardian ad litem (who may testify or advocate for what is perceived to be the child’s best interests). If the child is capable of forming a knowing, voluntary, and considered judgment, the AFC must follow the child’s wishes—even if the attorney personally disagrees with them.
The attorney must:
- Consult with the child in an age-appropriate and respectful manner
- Explain legal options and consequences so the child can make informed decisions
- Respect the child’s confidentiality, disclosing sensitive information only with the child’s consent
However, in limited circumstances, such as when a child cannot form a considered opinion or when their stated preference would pose a substantial risk of imminent serious harm—whether emotional, psychological, physical, or educational—the AFC may engage in substitution of judgment. In doing so, the attorney can take a position contrary to the child’s wishes, but must still inform the court of the child’s stated preferences, if the child consents.
Appointment and Conflicts of Interest
While appointment of an AFC is discretionary in most Family Court matters, it is mandatory in Article 10 abuse/neglect proceedings and juvenile delinquency cases. In other proceedings such as custody, visitation, paternity, and family offense petitions, a judge may appoint an AFC at their discretion based on the circumstances.
Although a parent or third party may attempt to retain private counsel for the child, doing so often raises ethical concerns. If a litigant participates in hiring or consulting with an attorney on behalf of the child, it may create a conflict of interest, especially if the parent shares information that influences or compromises the attorney’s independence. It is generally best practice for the court to appoint an AFC to maintain neutrality and integrity.
Communication and Advocacy
No attorney representing a parent may speak to the child without the consent of the child’s attorney. Parents, litigants, and their lawyers cannot meet with the child or involve the child in legal consultations without the AFC’s presence or permission. The AFC must be present at all stages of the case and may speak to collateral sources such as therapists, guidance counselors, teachers, or doctors—but should obtain the child’s permission to do so, especially when these communications pertain to the child’s wishes.
Children express themselves in different ways. A skilled AFC understands that younger or non-verbal children may communicate their preferences through drawings, behaviors, tone, or body language, and adapts their approach to fit the child’s developmental level.
Practical Considerations and Continuity of Representation
The court system favors continuity of representation—if a case is reopened or related matters arise, the same AFC is typically reappointed to avoid disruption and maintain continuity. Children are also entitled to representation on appeal, and the AFC must remain involved unless removed for good cause or a conflict of interest.
It is not uncommon for children’s preferences to shift during the litigation. In cases involving multiple siblings, conflicts of interest may arise when children’s positions diverge. In such cases, the AFC may be required to withdraw or seek separate counsel to ensure that each child’s position is independently and ethically represented.
Guardian ad Litem vs. Attorney for the Child
Unlike AFCs, Guardians ad Litem (GALs) are rare in custody cases and serve a different function. A GAL may testify on the child’s behalf or “stand in the shoes” of the child, especially in situations where the child is incapacitated or otherwise unable to participate. They advocate for what they believe to be the child’s best interests, not necessarily the child’s preferences.
Conclusion
The role of the Attorney for the Child is nuanced and essential. Their job is not to decide what’s best for the child but to advocate for what the child wants, while navigating the legal, ethical, and practical constraints of the family court system. They are the child’s voice in the courtroom, and that voice must be heard—clearly, independently, and with full legal authority.
If you are involved in a custody, visitation, or child welfare matter in New York City and have questions about the role of the Attorney for the Child, contact Gilmer Law Firm, PLLC. With offices in Brooklyn, we are committed to advocating for families and protecting the rights of all parties, especially children.
