In my last post, I began writing about the role of an Attorney for the child (AFC), focusing on the following questions:
- What does an AFC do, generally speaking?; and,
- 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).