If the public knows anything from watching television’s assortment of courtroom shows, it’s that no one yields more power in a courtroom than the judge. Judges are gatekeepers of fact and law; tasked with objectively listening to both parties in a case, weighing the witnesses and evidence, and making determinations as to which side should prevail.

Sure, sometimes juries make those determinations, but the judge is always the ultimate authority, right? The judge’s role in the litigation process may be irreplaceable; but is it inimitable? In New York Family Court custody proceedings, many judges are significantly influenced by the attorney for the child and their position on the court’s custody decision.

The Attorney for the Child (AFC) is a resource for the parties and the children subject to Article 6 custody matters.

The Family Court Act established the AFC system to represent minors involved in Family Court proceedings noting that counsel “is often indispensable to a practical realization of due process and may be helpful in making reasoned determinations of fact and proper orders of disposition” (FCA Sec. 241).

While AFCs are involved in multiple different types of Family Court actions, the role AFCs play in custody proceedings is not to be underestimated.

In nearly every custody proceeding, the court appoints an AFC. AFCs are chosen from a panel of experienced family law attorneys that have trained and applied to serve in the AFC role.

Once appointed to a case, the AFC is the lawyer for the subject child or children. They are obligated to contact, interview and provide initial services to the child. They are subject to the attorney-client relationship confidentiality.

Throughout litigation, the AFC has input on every facet of the process. The AFC can, and should, play a role in the parties’ negotiations, motions, and trial issues. The AFC is tasked with representing the child’s best interests and as such the AFC’s position on an issue will carry significant weight in the court’s final decision.

Given this deference to the position of the AFC, every family law attorney knows that custody cases can be won or lost based on the position of the AFC. So, is the judge actually deciding custody matters or does the AFC really determine the case?

On paper, the answer is the judge, but, in practice, the AFC wields significant influence. Why is this the case? Because the AFC is intended to have no stake in the outcome other than the best interest of the child. Inasmuch as the child’s best interest is the key to any custody case, the AFC is not representing a litigant-parent but the very subject of the litigation — the child.

What does this mean to litigating parents? It is important to understand the practicalities such as that the court and certain AFCs often share a bond due to the frequency in which they work together.

Courts have preferred AFCs that build trust and credibility with the court. And while the parties’ attorneys may come and go, AFCs are often the most consistent group of litigators that courts work with.

For this reason, experienced attorneys often spend time outside of court or communicating in emails and court lobbies trying to persuade the AFC to agree with their side. Family Court litigators will often invoke the AFC’s involvement during disputes in the same fashion that attorneys invoke judicial intervention in civil actions.

But be aware, while an AFC’s opinion on what is in the best interest of the child is guided by their education, it is also influenced by their personal biases and preferences. When the child is not old enough to communicate a position to the AFC, the AFC has to supplement the child’s position with their own opinion as to what is in the child’s best interest.

AFCs are an important part of the custody litigation process, but they should be treated like any other advocate and not as an extension of the court’s authority on the child’s best interest.

An AFC’s opinion should not stand unchallenged when it is based on nothing more than the AFCs personal preference versus actual facts of the case and application of the law. While judges also bring their own personal preferences and biases to the bench, judges are elected positions.

The people have a say in who sits on the Family Court bench, but the people have no say in who serves as an AFC.

In the best interests of the child and the parties, Family Courts and lawyers who litigate custody cases before them, need to work closely with the assigned AFC to ensure that the facts and the law are properly weighed in the balance in coming to the child’s best interest and result in a fair and reasonable outcome for the parties.

Family law matters require a deep understanding of the law, and working with an experienced family law attorney can help make the process smoother and more successful. If you believe it’s time to discuss your family law matter, contact us to speak with a New York family law attorney today, or call 8885294543 to explore your options and protect your child’s well-being.