The Attorney for Children, Law Guardian

Judge gavel and colourful letters regarding child custody, family law concept

What is the purpose of the Attorney for Children?

The purpose of the Attorneys for Children (hereinafter AFC) Program is to provide representation to minors in many kinds of court proceedings (such as juvenile delinquency, custody and visitation, and child protective proceedings). There are approximately 850 attorneys who serve as AFCs on panels in the twenty two counties comprising the Fourth Department.  Please note that the title “Attorney for Child” replaces the previous reference to “Law Guardian”.  Stacey Balduf has been appointed as an Attorney for Children and/or Law Guardian for over 25 years.

How are attorneys for children assigned?

Each county has its own practice. Generally, appointments are rotated among attorneys for children on the County’s panel, although Judges sometimes appoint more experienced attorneys for children to complex cases and may assign a particular attorney for children if the Judge thinks the attorney is especially suited to the case.

How is the Attorney for the Child paid?

They are paid the State of New York in many cases.  Some cases, particularly in Supreme Court have Courts which order the parties to pay for the Attorney for Child based upon their incomes.

Summary of Responsibilities of the Attorney for the Child.

While the activities of the attorney for the child will vary with the circumstances of each client and proceeding, in general those activities will include, but not be limited to, the following:

(1) Commence representation of the child promptly upon being notified of the appointment;

(2) Contact, interview and provide initial services to the child at the earliest practical opportunity, and prior to the first court appearance when feasible;

(3) Consult with and advise the child regularly concerning the course of the proceeding, maintain contact with the child so as to be aware of and respond to the child’s concerns and significant changes in the child’s circumstances, and remain accessible to the child;

(4) Conduct a full factual investigation and become familiar with all information and documents relevant to representation of the child. To that end, the lawyer for the child shall retain and consult with all experts necessary to assist in the representation of the child.

(5) Evaluate the legal remedies and services available to the child and pursue appropriate strategies for achieving case objectives;

(6) Appear at and participate actively in proceedings pertaining to the child;

 (7) Remain accessible to the child and other appropriate individuals and agencies to monitor implementation of the dispositional and permanency orders, and seek intervention of the court to assure compliance with those orders or otherwise protect the interests of the child, while those orders are in effect; and

“Best Interest” vs. “Wishes” of the child.

If 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. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.

When 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.