Among the many factors that a court may consider in determining the custody of a child, one stands out as particularly potent and pervasive: the willingness or, more to the point, the unwillingness of a parent to foster and promote the relationship between the child and the other parent. Tippins, T.M., “Child Custody Factors: Relationship with Both Parents Gains in Importance,” N.Y.L.J., Jan. 4, 2013. The force of this factor is evident in the vigor of the judicial language employed to describe it. Decisional law is replete with condemnation of interference with the relationship between a child and the other parent, deeming it “an act so inconsistent with the best interests of the child as to, per se, raise a strong probability that the offending party is unfit to act as custodial parent.” Goodman v. Jones, 146 A.D.3d 884 (2d Dept. 2017). Given the per se impact of this factor, it is not surprising to see decisions year after year wherein it overwhelms an array of other factors, such as primary parent, availability, promotion of intellectual development, etc. The “willingness to foster” factor also impacts the court's consideration of the child's preference. Where a court determines that a child has been unduly influenced by a parent, the expressed custodial preference of the child is given little weight in the court's decision-making matrix. Sloma v. Sloma, 148 A.D.3d 1679 (4th Dept. 2017); Manell v. Manell, 146 A.D.3d 1107 (3d Dept. 2017). Nor are procedural issues beyond its reach. A developing body of case law holds that the dynamic of parental influence/alienation also impacts the role of the attorney for the child (hereinafter AFC). This article will explore these decisions.

AFC's Role: Historical Perspective

The courts have for decades appointed attorneys to represent children in custody proceedings. Once commonly known as “law guardians,” these attorneys typically operated in an amorphous atmosphere, one in which their roles were ill-defined, their boundaries were ever-shifting, and their accountability was virtually vaporous. Many courts seemed to view these attorneys as arms of the court, sometimes sending them off like quasi-social workers to perform home inspections and allowing them to report their “findings” immune from challenge by cross-examination. Other courts treated them as “junior judges,” routinely holding ex parte conferences during which the AFC whispered heaven knew what into the judicial ear.

One significant area of ambiguity concerned the question of exactly what it was that the child's attorney was supposed to advocate. Was the attorney bound to advocate for the child's preference? Or could the attorney instead advocate for a result that the attorney believed was in the child's best interests, even though contrary to the child's wishes? The issue was steeped in uncertainty.

To bring greater coherence to the role of attorneys representing children, a court rule (22 NYCRR §7.2), entitled “Function of the Attorney for the Child,” was adopted in 2007. The purpose of the rule was “to clarify the role and responsibilities of the attorney for the child” and to place that attorney “squarely in the framework of the classic attorney-client relationship.” Carter, J.E., “Function of the Attorney for the Child,” 80-JAN N.Y. St. B.J. 42 (2008). The rule explicitly states:

The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.

Child's Preference vs. Best Interests

Rule 7.2 explicitly addresses the issue of whether the attorney for the child is required to advocate the preferred position of the child or is free to argue his or her own view of the child's best interests even though that is contrary to the child's wishes.

The rule provides that in custody proceedings “the attorney for the child must zealously advocate the child's position.” Some AFC's seem to see this mandate as an inextricable intellectual straightjacket that binds them to infinity and beyond. The requirement, however, is not so absolute. There are exceptions.

The duty to advocate the child's position presumes that the child is “capable of knowing, voluntary and considered judgment.” It also presupposes that the child's position, if it prevails, will not expose the child to a substantial risk of serious harm. Accordingly, Rule 7.2 sets forth two escape clauses:

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.

22 NYCRR §7.2 (emphasis added).

Importantly, when the attorney decides to advocate contrary to the child's position, the rule requires that he or she “must inform the court of the child's articulated wishes if the child wants the attorney to do so.”

Incapacity/Serious Harm and Parental Influence

Given the above-noted provisions of Rule 7.2, the child's attorney faces the recurrent and critically important questions of (1) what constitutes a lack of capacity and (2) what constitutes serious harm?

Some scenarios will be obvious, e.g., a child who wishes to remain with a physically abusive parent. Others may be more nuanced. For example, where the attorney believes that the child's preference is the product of parental alienation, is the attorney justified in advocating contrary to the child's desire to be in the custody of the misbehaving parent? A number of appellate decisions have now answered this question in the affirmative.

In Cunningham v. Talbot, 152 A.D.3d 886 (3d Dept. 2017), the court confronted a case in which the mother had had no significant contact with the children prior to commencing her proceeding seeking parental access. The father opposed the application due to his “concern for the children's emotional health were they to be again abandoned by their mother.” The father's sole contention on appeal was that the attorney representing his children improperly advocated for an outcome that was “contrary to the children's expressed wishes to have no visitation with the mother.” The Appellate Division disagreed, stating:

While an attorney for the child has a duty to advocate and express the child's position to the court, such attorney may deviate from this obligation and advocate a position that is contrary to the child's express wishes where he or she “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.”

Though conceding that the father's concerns were understandable, the court found that “there was ample evidence that the father had thwarted the mother's efforts to contact the children, attempted to alienate the children from the mother and manipulated the children's loyalty in order to turn them against the mother.” The court stated that if the father's and the children's professed wishes to have no contact with the mother were followed, “the mother-child relationship would be completely severed.” Thus, the AFC's deviation from the children's preference was justified.

Breaking this down in the context of the structure of Rule 7.2, the court recognized (1) that the father's undue influence rendered the children incapable of positing a “knowing, voluntary and considered judgment” and (2) the loss of the relationship with the mother represented “serious harm” to the children. Thus, the attorney for the children was justified in advocating contrary to their position on two grounds.

Cunningham is not a one-off. In Matter of Zakariah SS. v. Tara TT., 143 A.D.3d 1103, 1107 (3d Dept. 2016), the court found “ample evidence” that “the mother caused severe emotional distress to the child by her ongoing attempts to alienate the child from the father.” The court stated:

If the child's professed wishes were acceded to, that distress was likely to continue and perhaps worsen. Moreover, the child's purported wishes were likely to lead to the continuation and amplification of severe and unwarranted damage to the child's relationship with the father. In such circumstances, we find no fault in the attorney for the child's decision to advocate for a position contrary to the child's wishes, of which Family Court was aware, given that such wishes were “likely to result in a substantial risk of imminent, serious harm to [her].”

In so holding the court cited to Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680-81 (4th Dept. 2015). In Viscuso, the court found the AFC's advocacy of a position contrary to the child's wishes was justified because “the mother's persistent and pervasive pattern of alienating the child from the father 'is likely to result in a substantial risk of imminent, serious harm to the child'” and “to follow the child's wishes would be tantamount to severing her relationship with her father, and that result would not be in [the child's] best interests.”

Conclusion

Attorneys representing children in custody proceedings are required to heed the strictures of Rule 7.2, but they must not blindly subordinate their judgment to the child's wishes. Where they become convinced that the child's position is either the product of parental misbehavior or that the child's position, if followed, would put the child at risk of serious harm by undermining the child's relationship with the disfavored parent, they are justified in advocating contrary to the child's expressed desires. The decisions discussed above put them on solid ground in so doing.

Timothy M. Tippins is an adjunct professor at Albany Law School and is on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John's University.