While the vast majority of cases petitions seeking to modify custody are brought by parents, can any one else bring a petition seeking to modify custody? I have written previously about petitions brought by non-parents, such as grandparents or someone who has a relationship with a child. A recent decision brought forth yet another party who can bring a petition seeking to modify custody – a child himself. In a recent decision, Trosset v. Susan A., 2011 N.Y. Slip. Op. 21151 (Fam Ct. Otsego Co. 2011), the court held that a child had standing to bring a petition seeking modification of present custodial arrangement. In Trossett, the child’s attorney filed a petition to modify prior court order. Respondent moved to dismiss the petition arguing that child’s attorney lacks standing to file petition concerning custody on behalf of child. The court held that “[w]hile absence of specific authority regarding custody and visitation is problematic, absence of statute granting child standing, such standing depends upon whether party has alleged facts showing disadvantage to himself or herself.” (citations omitted). According to the decision, the attorney for child made allegations that directly relate to child’s desire to live with father. The court opined that the child has stake in outcome sufficient to confer standing upon him to file petition, or by child’s attorney on child’s behalf.
The decision does not provide much in a way of facts or legal authority for the court’s decision, however, I would guess that the child was older and, therefore, would have an opportunity to have input on any custody decisions. In addition, I would think that the parties were involved in court proceedings previously since the child had an attorney representing him.
Since the decision dealt with procedural issues related arising out of petition being filed by attorney for the child, we may never know how the case was resolved. However, I suspect that this issue may be appealed in the future and we may learn of further developments in the case.
On January 15, 2009, another amendment to Domestic Relations Law §240 became effective. The amendment prohibits courts from signing custody orders before they check the following registries: the domestic violence registry, the Family Court “Universal Case Management System” (for child protective decisions and orders), and sex offender registry. The court is required to notify the attorneys, self-represented parties and attorneys for children of the results of the search. This notification can be made in writing or orally, on the record, especially with with respect to the sex offender registry, since the search of that registry will not generate a report that can be shared with the parties.
As a result of the amendment, the judgments of divorce, permanent custody orders and any temporary orders involving petitions for custody or visitation, must include the language stating that required databases were reviewed and what information , if any, from the databases was relied upon by the court in issuing the order.
The above is likely to place an additional burden on the courts, litigants and attorneys.
Sometime ago, I became certified as an Attorney for the Child, formerly known as a Law Guardian. Since that time I represented children, primarily in Family Court, in various custody and visitation proceedings, as well as PINS (person in need of supervision) and juvenile delinquency cases.
One issue that commonly arises is that I am asked, typically by the parties, what my report to the court is going to be. I usually respond that I do not have a report to deliver, and that the reason I was appointed is to act as an advocate for the parties’ child or children. With that in mind, here are some of the basics related to what the attorney for the child does.
The Attorney for the Child is usually appointed by the court in custody and visitation disputes. He/she is there to represent the child’s interests. The person chosen to act as the Attorney for the Child is usually a lawyer who is experienced in custody matters.
Normally, the Attorney for the Child speaks with the child or children and may also speak to either or both of the parents. The Attorney may also speak with school personnel, a child’s therapist, the forensic examiner appointed in the case, or anyone else the Attorney considers appropriate to obtaining relevant and necessary information to enable him/her to state 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 Attorney for the Child has the right to call witnesses and to cross-examine on behalf of the child. The Law Guardian’s role is to assure that the Court hears an unbiased view of what is in the child’s best interest, a view not colored by either parent promoting his or her own agenda.
The Attorney for the Child will frequently act as a buffer between two hostile parents in an attempt to obtain a resolution that is in the child’s best interest. The most common criticism if that the Attorney for the Child frequently appears to aligns him/herself with one parent, losing objectivity and effectively becoming a second advocate for one parent.
A common mistake that parents make in custody disputes is to forget that the Attorney for the Child is the child’s attorney and not their attorney. Your own attorney will keep your communications with him/her confidential and will reveal only what is in your best interests. Your own lawyer will work with you to present your arguments in the best light. That clearly is not the same as the Attorney for the Child’s role.
In discussions with the Attorney for the Child, parents need to give reasons they believe their child’s best interests are served by that parent serving as the primary custodian or that the child will be well served by requested changes in visitation. They need to describe their positive contributions to raising the child.
On November 8, 2008, the Appellate Division, Fourth Department, has issued Guidelines for Attorneys for the Children that are applicable to both Supreme and Family Court proceedings. These guidelines must be followed by all attorneys for the children practicing in the judicial districts included in the Fourth Department. In my opinion, the guidelines represent a clear and cogent set of rules and all attorneys handling family law matters should have at least a passing familiarity with the guidelines as well.