In New York child custody litigation, the role of the Attorney for the Child (AFC) is critical—not only as an advocate but as a developmentally informed representative of the child’s expressed preferences. When parents are engaged in a custody dispute, the court may appoint an AFC to represent the child’s legal interests. This role becomes especially complex when determining and presenting a child’s preferences, particularly for young or developmentally atypical children.
But how does an AFC truly assess a child’s position when children vary so widely in their psychological development and ability to express preferences?
AFC’s Legal Duty: Voice, Not Vote
Under 22 NYCRR §7.2, the AFC’s job is not to substitute judgment (except under limited circumstances), but rather to zealously advocate for the child’s position. This means that, if a child is capable of forming a knowing, voluntary, and considered judgment, the AFC must advance that preference—even if the AFC believes it is not in the child’s best interest.
Yet children, especially younger ones, often struggle to express those wishes in clear or reliable terms. Therefore, developmental assessment becomes central to ethical representation.
Interviewing the Child: One Size Does Not Fit All
Interviewing a 16-year-old is not the same as speaking to a 6-year-old, or even a verbal 4-year-old. Effective representation starts with understanding where a child is developmentally, not just chronologically.
Children on the autism spectrum, for example, may be developmentally younger than their age suggests. Others may have trauma histories or psychological conditions that affect their judgment and communication. An AFC should attempt to understand these nuances—ideally by reviewing existing records, school reports, therapeutic notes, or collateral interviews—before conducting a direct interview.
Younger Children: Observational Insight Over Direct Inquiry
Children under 5, particularly toddlers, should not be directly questioned about preferences in the same way older children are. Their thinking is highly influenced, suggestible, and driven by fantasy. Their statements may reflect the last adult they interacted with, or rehearsed lines given by one parent. A four-year-old saying “Daddy hurt me” may mean “Daddy didn’t give me a second cookie,” not physical harm.
The AFC must rely on collateral sources: teachers, pediatricians, therapists, or caregivers—combined with brief observation—to understand the child’s emotional climate. While even infants should be met by their attorney, the “interview” in these cases is more about developing a human connection and understanding the child as more than a file number.
Middle Childhood: Building Comfort and Listening for Authenticity
For children aged 6–12, the AFC can use developmentally appropriate interviews that explore:
- School performance and social relationships
- Daily routines with each parent
- Feelings of safety, stability, and stress
- Concrete preferences, if offered spontaneously
Rather than asking, “Who do you want to live with?”, the AFC might ask, “What are some good things about spending time at Dad’s house?” or “What things do you do with Mom that make you feel happy or safe?”
This age group is highly sensitive to perceived fairness and often feels burdened by loyalty conflicts. It is essential to remove the weight of responsibility from the child. As one seasoned clinician aptly told a child: “You have a voice, but not a vote.” The job of the AFC is to hear that voice—without placing the burden of choice on the child.
Adolescents: When Preferences Have Legal Weight
Teenagers are more likely to articulate clear preferences. But even here, the AFC must assess:
- Whether the preference is genuinely formed or coached
- Whether it is rooted in emotional maturity or temporary frustration
- Whether the preference, if followed, would expose the child to significant harm
AFCs should gather information about school involvement, friendships, mental health, and risk behaviors (e.g., substance use, cutting). These factors may be relevant to both custody outcomes and the child’s ability to reason independently.
A 14-year-old who says, “I want to live with Dad because Mom’s boyfriend creeps me out,” may be offering meaningful insight. A 13-year-old saying, “Dad has no rules and buys me stuff” may be reacting to structure, not parental competence.
Understanding Influence and Suggestibility
One challenge the AFC faces is detecting influence—especially in high-conflict or alienation cases. A child who parrots adult language (e.g., “My mom is narcissistic and manipulative”) may not understand the terms they’re using. The AFC should assess for:
- Echoed language
- Rigid or overly rehearsed responses
- Lack of balance in views toward both parents
Sometimes, children make extreme statements without understanding their implications. As in one case, a 6-year-old boy, dressed in a bow tie, solemnly told his evaluator: “My mother is an adult whore.” When asked what that meant, he replied, “I don’t know, but it’s really bad.” This exemplifies the impact of parental messaging on children and the need for careful interpretation.
The AFC’s Ethical Compass: Substitution of Judgment
When a child cannot express a preference or when the preference could lead to imminent serious harm, the AFC may invoke substitution of judgment. This is not to be taken lightly. It requires:
- Demonstrating that the child lacks capacity to make an informed choice, or
- That following the child’s wishes would likely cause psychological, emotional, or physical harm
For example, in abuse cases, a child may say they want to live with their abuser—either due to trauma bonding or pressure. Here, the AFC must weigh their duty to the court and their duty to protect the child.
Final Thoughts: Centering the Child, Not the Conflict
Ultimately, representing a child in a custody dispute is about centered, child-focused advocacy. AFCs must avoid becoming extensions of either parent. Children often complain not about “mean lawyers,” but about attorneys who don’t listen to them or appear to be aligned with one parent.
Interviewing children effectively requires humility, patience, developmental insight, and ethical clarity. An AFC must be aware that:
- Preferences are not always fixed
- Emotional loyalty is fluid
- Developmental stages affect understanding and expression
In a world where custody battles often revolve around adult grievances, the Attorney for the Child must remain anchored in the child’s psychological reality.
