Custody and Attorney for the Children

An appeal from an order awarding sole custody of the parties’ two children to Petitioner Father, with liberal visitation to the Mother.  The Mother asserted that the Family Court erred in its determination because it failed to appoint separate counsel for the children when the parties’ son expressed a desire to live with his mother when it was not consistent with the daughter’s expressed wishes.

The Mother believed a separate attorney for her son should be appointed due to the son’s differing view on where he wished to reside.  The Attorney for the Children (AFC) was previously informed by both children that they wished to continue living with the father, whom had been granted temporary custody.  However, during the trial, the son (9 years old) communicated that he wished to live with the Mother because “he can stay up late and he doesn’t get in trouble” at her house.  Under normal circumstances, the AFC “must zealously advocate the child’s position.”  As long as the child is “capable of knowing, voluntary and considered judgment, the [ATC] should be directed by the wishes of the child.”  This can be the case even if the ATC “believes that what the child wants is not in the child’s best interests.”

However, this situation shifted from that norm.  The Appellate Division said that where an AFC is convinced 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 AFC would be “justified in advocating a position…contrary to the child’s wishes.”  As such, a Nassau County Family Law Attorney said the AFC disregarded the son’s wishes as “immature” and therefore “not controlling.”  A Lincoln Hearing was subsequently held and the Court went on to deny the Mother’s request for the appointment of a new AFC for the son.  Sole custody of both children was subsequently awarded to the Father.

The Appellate Division reviewed the transcript of the Lincoln Hearing and determined the Family Court “properly denied the mother’s request to appoint separate counsel for the son.”  Due to the confidential nature of the Lincoln Hearing, the Appellate Division could not state the reasons for its determination in its opinion.

There are times in custody proceedings involving multiple children that one or more of the children wish to live with a parent that does not retain custody.  In such a situation separate counsel may be appointed for that child(ren).  As a parent it is important to understand the process of a custody proceeding.  The experienced Family Law Attorneys and winners of the Best of Long Island for Best Law Firm at Simonetti & Associates can help guide you through.