We at The Children's Law Center (CLC) strongly disagree with Joel Brandes's assertion in his recent article “What is the Status of the Child in a Custody Case?” (NYLJ, July 8, 2019) that the departments of the Appellate Division have ruled inconsistently with regard to the child's standing and status in custody and visitation cases. As the first public interest law firm in New York City dedicated to the representation of children in custody, guardianship, and visitation matters, and as the attorneys who filed and prosecuted, on behalf of our child-client, the appeal in Matter of Newton v. McFarlane, we believe that the case law is clear regarding the role of the child and his or her attorney in custody and visitation proceedings.

While we take no issue with the author's summaries of the relevant case law, we also find no disunity in the Departments' holdings. In fact, we believe that McFarlane, with its thorough analysis, articulates the settled principle of New York state law, that once an attorney for the child (AFC) is appointed, that AFC has the right to participate fully in all aspects of a case, including by filing motions seeking changes in custody or visitation, and also has standing to file an appeal. In the cases that Mr. Brandes cites, the Fourth Department did not rule otherwise, as it never disputed that the AFC had standing to file and pursue an appeal on behalf of the child.  Rather, the court's unwillingness to decide in the children's favor hinged on the litigants' lack of cooperation with the children's desired outcomes.

An also unambiguous, if not more important, take-away from the court's decision in McFarlane is the significance of the child's position in custody and visitation proceedings. Unlike in most other types of litigation, the subject of a custody or visitation case is a young person, on whom a court's decision will have a substantial impact, perhaps even more than on the litigants. The Appellate Division's four departments undoubtedly have agreed that the voice of that child deserves to be heard.

Karen Simmons, Executive Director Janet Neustaetter, Supervising Attorney, Appeals and Writing Unit Louise Feld, Writing and Policy Attorney The Children's Law Center