Discretionary appointment of counsel

N.Y. Fam. Ct. Act. § 249(a) states, “In any other proceeding in which the court has jurisdiction, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appointment.” See Wilson v. Bennett, 282 A.D.2d 933, 724 N.Y.S.2d 520 (N.Y.A.D. 2001) (applying this provision to private custody dispute).   In Matter of Ames v. Ames, 97 A.D.3d 914 (N.Y. App. Div. 2012), the court commented that “appointment of an attorney for the child in a contested custody matter remains the strongly preferred practice …”

Where these proceedings take place in the New York Supreme Court or Surrogate’s Court, the minor has the same rights to counsel as identified above. N.Y. Jud. Law § 35(7).

In New York, appointed counsel act as attorneys for minors, advocating the minor’s position, as opposed to advocating counsel’s view of what is in the best interest of the child. See N.Y. Ct. Rules § 7.2(c), (d) (“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 … In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child’s position.”).

Where the family court fails to exercise its discretion to appoint counsel for the child, the appellate court appears to apply an abuse of discretion standard on appeal.  In Marina C. v. Dario D., the Supreme Court, Appellate Division reversed and remitted for a new custody modification hearing, finding that the family court abused its discretion by failing to appoint the same or a new attorney for the child (“AFC”). 177 A.D. 3d 1228, 1229-30 (N.Y. App. Div. 2019).  The court reasoned that the child’s interests were prejudiced, because an AFC could have objected to testimony by the child’s therapist that was confidential. Id.  Such attorney also could have objected to hearsay testimony provided by the father, called additional witnesses, questioned witnesses “or presented other evidence to elicit information that would support the child’s position.” Id. (internal citations omitted).