Category Archives: Custody

Attorney for the Child: When the AFC believes the child lacks capacity, or that the child’s wishes are likely to result in harm?

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In my last post, I began writing about the role of an Attorney for the child (AFC), focusing on the following questions:

  1. What does an AFC do, generally speaking?; and,
  2. What if the AFC believes that what the child wants is not in the child’s ‘best interests’?

Question #2 assumes that, though the AFC disagrees with the child (client) on some matter, the child is “capable” of making decisions

Here, I continue with a different question:

What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?

According to the Code,

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.[i]

A child may be deemed to lack the capacity not only due to age, but also due to mental illness.[ii]

Note that the AFC would be justified in advocating a position contrary to the child’s wishes if the AFC is convinced that,

following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, . . .[iii] (emphasis added).

While an AFC may act in opposition to the child’s/client’s wishes under certain circumstances, the AFC’s ability to do so is limited.

The standard leaves room for doubt – for instance,

What exactly does “serious harm” mean?

What does “imminent” mean?

Though these questions are debatable, perhaps even amongst judges, an AFC does have to meet a certain standard.  An argument by an AFC that something bad might happen years in the future as a result of following the child’s wishes, would be unlikely to meet the standard’s criteria of “likely to result” and “imminent” harm.

Note further that the AFC,

must inform the court of the child’s articulated wishes if the child wants the attorney to do so, . . . (emphasis added).

Speaking for myself, I like the idea that the court will be informed when the AFC and child disagree.  (The “must” part of this text).

But this requirement to inform the court is conditional; the AFC must inform the court if the child wants the AFC to do so.  This qualification concerns me.  You don’t need to be a mediator to know that many adults have difficulty expressing their needs and handling conflict well.  Can we expect children – who are probably under great stress due to the parental conflict, and very possibly caught between their parents – to express their disagreements with a lawyer, and be strong enough to say, “I want you to tell the judge my wishes on this matter, even though you don’t agree with me”?

It seems a lot to ask.

Whatever the answer, be aware that an AFC may be part of your case.

[i] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

[ii] For that matter, adults may also lack the ‘capacity’ to make decisions due to mental illness.

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

 

 

Attorney for the Child: What is it? What does one do?

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If you’re a parent in family or supreme court for a case relating to a child custody issue, you may have a lawyer representing you.  Of course, the other parent may also be represented by a lawyer.  But did you know that your child/ren may also have an attorney?[i]

For some parents, it is a strange idea; but if you are in court and are not able to settle the legal issues with the other parent, a lawyer may be appointed to represent your child.

What does an attorney for the child do?

An attorney for the child (AFC) ““must zealously advocate the child’s position.”[ii] (emphasis added).  That is to say that, just as each parent has ‘a position,’ a child may have one of his/her own as well.

An example:  you and your spouse or partner are separating.

You want your child to live with you.

The other parent wants the child to live with her/him.

But what does your child want?  An AFC is concerned with this question – and will represent a child much as your attorney (if you have one) might represent you.  Just as a lawyer for an adult will consult with and advise the client,

“. . . , the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances.” [iii]

Implicit in the role of an AFC is an acknowledgement that children have their own views, wants, and needs – and that they may be in opposition to those of one or both of the parents.

What if the AFC believes that what the child wants is not in the child’s ‘best interests’[iv]?  

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.[v]

It is not the role of an AFC to substitute his or her judgment and impose it on the child/client.  If the child is “capable” of making the decision, the decision is up to the child.

Generally speaking, the older the child, the more likely it is that s/he would be considered, “capable of knowing, voluntary and considered judgment.”  Obviously, a reasonably well-adjusted older teenager would be considered far more “capable” to make decisions regarding her/his interests than let’s say a five-year old.

Next time, I’ll continue writing about the role of an AFC, looking at the question:  What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?

 

[i] There are other situations where a lawyer may represent a child.  “In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.” N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(c).

(For all of the text that I quote in this post, see https://casetext.com/regulation/new-york-codes-rules-and-regulations/title-22-judiciary/subtitle-a-judicial-administration/chapter-i-standards-and-administrative-policies/subchapter-a-rules-of-the-chief-judge/part-7-law-guardians/section-72-function-of-the-attorney-for-the-child.)

[ii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d).

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(1).

[iv] https://codes.findlaw.com/ny/domestic-relations-law/dom-sect-240.html

[v] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(2).

 

Considering a custody battle? Ask yourself – and your spouse or partner – the following:

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Larry Sarezky* is a Connecticut divorce attorney who has put together the following ten questions for his clients.

In my own divorce, my greatest fear was “What will our child go through if we [the parents] fight it out in court?”  Sarezky’s questions articulate many of the potential consequences, and they are serious ones.

If you are a separating or divorcing parent, they are well worth reading and thinking about.

If you are a friend or family member of such a parent, you may want to pass these questions along.

If you are a divorce attorney, you may decide to discuss them with your clients.

  1. Do you want your children to endure months of anxiety and uncertainty as to where they will be living and whether they will have the relationship they want with each of their parents and their siblings?
  2. Do you want your children subjected to interviews by attorneys, mental health professionals and court personnel during which they will be afraid and conflicted, and will feel pressured to be loyal to both their parents?
  3. Do you want your children subjected to the possibility of inquiry by these professionals about the most personal aspects of their lives including their fears and frailties?
  4. Clinical studies have shown that high conflict between parents exposes children to serious psychological harm. Do you want to risk your children developing emotional disorders as a result of your high-conflict custody battle?
  5. Do you want your inability to resolve your differences to serve as a model of parenting for your children?
  6. Do you want intimate details of your life to become a matter of public record?
  7. Do you want a stranger deciding how much you will see your children, and how you will make decisions concerning them?
  8. Do you want a substantial portion of your assets used for fees of attorneys and expert witnesses with no guarantee that you will be happy with the result?
  9. Do you want to give up attention to detail that a negotiated agreement will have but that a judge’s decision will not?
  10. Do you want to engage in costly, time-consuming and rancorous litigation that can make future cooperation between you and your co-parent extremely difficult at best, and the resumption of amicable joint parenting nearly impossible.

* Larry Sarezky is a former Chair of the Connecticut Bar Association’s Family Law Section and an award-winning screenwriter and child advocacy filmmaker.  His articles on divorce have appeared widely. You can learn more about his efforts at:  https://www.facebook.com/ChildCustodyFilm/

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A Divorce Mediation Case (Part 2 of 4: Sessions on Parenting, Income & Expenses)

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In my previous post , I introduced Bill and Angela who had decided to get a divorce.  Angela called and learned more about mediation, and shared the information with Bill.  After further discussion, they decided (Bill, a little reluctantly) to schedule a consultation, at which they got a sense of who the mediator is, and had more of their questions answered.

Here, I continue with both their first and second sessions.

November 10 – Session #1

● With the spouses permission, the mediator turns the discussion to parenting.

● Angela says that she wants ‘full custody’. Bill becomes defensive. They argue for a few minutes.  The mediator listens and considers whether the verbal exchange is constructive, and then raises a question.

● The mediator asks each to answer, “What do you mean when you say ‘custody’?

● The mediator listens and checks that s/he understands what each has said. The mediator then suggests that maybe the question isn’t “Which of you will have custody?”, but rather, “What agreements can you reach so that you can be the kind of parents you want to be to your children?”

● There is further discussion, some of it angry.  The mediator helps the spouses to fully express their concerns, and asks clarifying questions.  The mediator believes that, though Bill is having difficulty really listening to Angela directly at this point, he is able to hear her through the mediator’s restatements of what she is saying.  The focus is forward looking.  Each party acknowledges that the other has an important role to play in the children’s lives; neither wants to ‘take the children’ from the other.  With his fear of ‘losing the children’ alleviated, Bill especially becomes less tense, and the conversation is less strained.

● Bill and Angela agree to talk about parenting arrangements; at least for now, they are willing to leave the legal designations aside.

● Angela and Bill talk about the children: where they attend school, what they enjoy doing, their usual routines, and so forth.

● The mediator helps them to set out different possible parenting plans, which are discussed.

● The parents reach a tentative agreement on a schedule for the children. And, on how decisions involving medical, educational and religious matters will be handled in the future.  (The latter comes easily for them.)

● The mediator gives each spouse a blank form for setting out financial information.  Angela and Bill are both confident that they can fill in the information about their respective incomes and expenses within a week to ten days.  With that in mind they schedule the next session for two weeks later; if either needs more time to complete the income/expense parts of the form, they will let each other and the mediator know, so that the date of the next session can be rescheduled.

● The session ends after two hours, and Bill and Angela each pay $300 of the $600 fee.

 

November 23 – Session #2

● Angela and Bill arrive.  The mediator asks how they and the children are, and whether anything of note has happened since the last session.  They briefly discuss Thanksgiving plans.

● Angela asks a question about property.  The mediator gives the spouses a brief overview of Marital and Separate Property (and Debts), and makes a point of saying that this information is not “legal advice”. For instance, if either/both wants to know what a judge might decide regarding property, they are welcome to contact an attorney to get that advice. Both respond that they don’t see a need; instead, they’ll each meet with a ‘review attorney’ to review the separation agreement before signing it.

● The mediator then begins setting out Bill’s and Angela’s respective income and expenses. This is done using a flip-chart, so that all three of them can see the figures that the spouses supply.

● Bill questions why Angela is paying $400 month for clothes for her and the children. Bill isn’t angry; he just thinks the number is high. In discussing the matter, it turns out that Angela based her calculation on her September credit card statement, which has higher costs than average due to purchasing back to school clothing. Their daughter needed a lot of new thing because of how much she has grown over the past few months. Angela says that before the next session, she will look at her statements over the past year, which she can find on the computer, and take the average of that twelve month period. Bill thinks this is a good idea. The mediator makes a note to come back to this question.

● Angela asks if, since money will be tight, Bill can cut down on his recreational spending. Bill bristles at the suggestion, but looking at where his money goes, decides this is reasonable. In particular, Bill says that he can spend a lot less on sporting events and movies. Bill does a quick calculation, agreeing to reduce this spending by 10% each month, starting this month. He is confident that he will bring it down further, but feels comfortable starting at 10%.  The mediator, noticing Angela’s facial expression, asks if she wants to say something.  She answers that, “Well, I have mixed feelings.  I think Bill could do more here.”  (Bill immediately becomes upset.)   “But,”  she adds, “Bill is willing to commit to this, and says he’ll do more; and I believe he will.  (Turning to Bill)  And maybe it’s a good idea that you start with 10%; that way, you won’t feel deprived.  If you spent less now, you might hate it, and be angry with me, and we’d be worse off.  So, good.  Do the 10% for awhile.  Then, we can talk about it again in month or two.  Can we do that?”  Bill is still annoyed, but he also knows (and feels) that he is being heard by his wife.  He says, ‘Yes’.  They discuss what to do with the money that will be saved. Bill wants to use it to pay down a credit card, and Angela agrees to this.

● In regard to expense and income figures now displayed on the flipchart, the spouses agree that the numbers are pretty accurate.

● Bill raises a concern he has about the parenting agreement. He says that he has what is a minor change in mind that would allow him to spend more time with the children during the summer, if Angela would be ok with it. Bill shares his thought. Angela says that the change would be alright with her, if another small change can be made when it comes to the Thanksgiving holiday break, starting the following year. Bill tells Angela that he is willing; while he likes the Thanksgiving break and doesn’t really want to change the schedule they had agreed to, the change over the summer is a much bigger deal to him, and he thanks Angela for going along with his suggestion.

Next time:  Assets (especially the House) and Debts

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Why Mediation is Faster than Going to Court (Litigation)

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Why Is Mediation Faster than Court?

Divorce isn’t easy, and divorce isn’t quick. But if the marriage is ending, you and your spouse can decide between a process that will take months (mediation) and one that very often takes over a year at a minimum, and which not infrequently takes several times that long (going to court/litigation).

[I am not talking here about an ‘uncontested divorce’. That is a different story and a different blog post, and an option to be considered for couples with a very ‘simple’ case and one without disagreements.]

Why Mediation is Faster

Mediation often takes between six and twelve hours to complete. That’s it.

Sessions usually run from one hour to two hours.

When dealing with parenting issues, spouses frequently meet with the mediator over consecutive weeks.

When dealing with financial matters, sessions may be scheduled for every other week (or with a longer interval) to allow the spouses to obtain information about the value of a house, business, pension, or other assets; or, let’s say, to work out a budget.

Of course, the spouses may need time between sessions because of travel for work, holidays or for other reasons. The mediator may also have a conflict.

In practice, many spouses successfully complete mediation within three – six months.

[When I say that parties have reached the end of the mediation, I mean that they have reached all of their agreements. But just as when going through the court process, the agreements need to be written out and filed with the court; then, there is the wait for the judge to sign the document.]

Why the Court Process/Litigation takes Longer

A spouse meets with an attorney; the other spouse does the same. A four-way meeting (with the couple and the lawyers) takes place. In many instances, though not all, these meetings bring out strong disagreements. Any of a number of motions (requests to the judge to make a decision) may be filed with the court. There is the first court appearance.   Over the course of a case, there will probably be at least one and maybe several adjournments (postponements), and the court appearance will need to be rescheduled.

In many cases, depositions are taken, where the spouses are questioned by opposing counsel during a multi-hour process that is recorded.

For four people to schedule a meeting can be a challenge and cause delay. Adjournments can be for six weeks or more.

And at this point, the court case is just getting started.

Most court cases require quite a few court appearances, not to mention a possible trial.

If there are children involved, a New York judge will likely appoint a forensic psychologist to meet separately with each family member. Think of the scheduling for that. After, the psychologist must write and submit a report to the judge, who will need to read and consider it. You’ll find out more about that report at the next court appearance.

Also, if there are children, an attorney for the child may be appointed to represent the child’s interests. That is another meeting (or more), and that attorney’s schedule to consider as well.

Just for some context, my own divorce many years ago took well over two years, and that was with my ex and I settling long before a trial was even in sight.

And that was at a time, I believe, when the courts were better staffed, making the process speedier than it is today.

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Hiring Experts in Mediation – It’s very Different than in Litigation

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In both mediated cases and those litigated in court, experts may become involved; but their roles can be very different, depending on which process they are involved in.

A psychologist in a litigated case:

In a divorce case where there are children, a forensic psychologist will most likely be appointed by the judge, if the parents are involved in a custody dispute.

In large part, the job of the psychologist is to determine who is the better parent. And, who is the worse parent. The reason for this is that the issue in court is essentially, “Who will get custody of the children?” Someone will ‘win’, and someone will ‘lose’.

Parents and children will meet with the psychologist, separately. Many of the questions asked may be intrusive. Often, one or both parents is frightened of “losing the children”. Even loving and nurturing parents can be tempted to coach their children, telling them what to say to this mental health expert whose report may well have a significant impact on the outcome of the litigation. Unfortunately, a few parents will ask or tell the children to lie, and the consequences can be devastating and long lasting, for instance, when a child is instructed to allege abuse where no abuse has taken place.

A psychologist in a mediated case:

In mediation, the question is not “Which of you will get the children?”, but rather, “How will each of you (Mom and Dad) spend time with your children, so that you can be the best parents you can be to them, and so that your children can get the most from both of you?”* [Please note that I am not talking about a situation where there may be abuse; that is another discussion.]  Usually, parents are able to answer this question on their own, without looking to a mental health professional.

But, if a psychologist or other mental health professional is needed during mediation, the purpose might well be to have a child meet with that person to help the child, by engaging in play therapy, let’s say, where the child’s play or drawings might reveal anxieties that can then be addressed. The child can then be helped to feel more secure; the adjustments and transitions made easier and less scary.

A financial expert in litigation:

In a court case, you might hire someone to tell the court how much the marital home is worth. Your spouse might do the same. It is likely that your experts will come back with different determinations as to what the value of the home is: Probably your expert will state a number or range that favors you; and your spouse’s expert will give a figure or range that favors her or him.

Possibly, the court may ask that a third expert be hired to settle the disagreement between the original two.

A financial expert in Mediation:

In mediation, you and your spouse would discuss the need for an expert to put a value on the house; and then, if you were to jointly decide that it would be worthwhile to hire someone, you would determine how to choose a qualified professional acceptable to both of you. You would decide on how to handle the person’s fee, perhaps splitting it in some fashion; perhaps not. Either way, there would be only one expert to hire regarding this question, saving you money as a couple. You could instruct the expert to provide the most neutral and balanced appraisal possible.

Conclusion:

In mediation, you have the choice of calling upon an expert to provide solid information or to assist in solving a problem.  By contrast, in court, a judge may make such a decision for you; and there, the circumstances and the outcome may feel much more threatening.

*Paraphrasing Erickson and McKnight Erickson, Family Mediation Casebook:  Theory and Process.

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