In a recent article, “Does Empowering Children During Divorce Litigation Serve Them Well?,” N.Y.L.J. (July 29, 2019), Lisa Zeiderman appears to offer a resounding “no” in response to that rhetorical question. In doing so, and in recounting the evolution of the role of the attorney for the child (AFC) in New York, she raises issues that no longer bear serious discussion, and gets several things wrong.

Ms. Zeiderman asserts that prior to the promulgation in 2007 of §7.2 of the Rules of the Chief Judge, “children were represented by law guardians who made a recommendation to Judges as to a child’s best interest.” Not so. Pre-Rule 7.2, the AFC (then called a “law guardian”), while always taking into account and communicating to the court the child’s expressed wishes (see Family Court Act §241), did act upon his or her own considered judgment, but only when representing young children who are incapable of articulating their wishes and/or making considered judgments. However, when representing teenagers, and even younger children who are capable of considered judgment, the AFC was ethically bound to advocate for the child’s preferences unless successful advocacy would expose the child to a risk of imminent serious harm. Rule 7.2 formalized what was already the prevailing practice, at least in New York Family Courts, and also had the salutary effect of deterring renegade AFCs from engaging in unauthorized and inappropriate “best interests” advocacy.

More unsettling are a number of assertions made by Ms. Zeiderman that reflect her discomfort with Rule 7.2. She asserts that “parents who are concerned that their children’s voice may become too powerful in the courtroom find their role and authority as parents descending into a popularity contest between the parents to gain the child’s approval,” which “can result in an empowerment of children that begs the question of why children of divorcing parents are afforded that power and voice that children of intact families often lack.” Ms. Zeiderman also observes that “[a] significant question to be considered is whether this evolution of an AFC’s role is actually helping the child or instead helping the child achieve what the child wants.” Ms. Zeiderman complains that “[i]f the child’s AFC is a strong advocate and the parent’s attorney is not as skilled, what is the result? Are we faced with the child seizing the power in the parent/child relationship?”

Ms. Zeiderman entirely misses the point. These are valid concerns for a child’s parents, for mental health professionals, and for the judge who is making a best interests determination, but they have absolutely nothing to do with the role of the AFC. The purpose of Rule 7.2 is to enhance the likelihood that the court will reach the right result by ensuring that the child, like other litigants in these and other types of proceedings, is represented by loyal counsel and thus has an opportunity to effectively assert his or her position in court. The judge, not the AFC, is charged with making a determination based on the evidence presented, and applicable statutes and case law. Is Ms. Zeiderman really suggesting that AFCs should stray from the dictates of Rule 7.2, and refrain from zealously advocating for what the child wants, because there is a risk that the AFC’s skilled advocacy will seduce the judge into a decision Ms. Zeiderman would say is not in the child’s best interest? That seems to be the “between-the-lines” message in her article. Ms. Zeiderman properly recognizes that the AFC should counsel the child with respect to a proper course of action, but laments the fact that the AFC is obliged to advocate for what the child wants should that counseling fail to change the child’s mind.

At bottom, Ms. Zeiderman, intentionally or inadvertently, communicates a lack of faith in the ability of AFCs to help children make sound decisions, and in the ability of judges to reach sound judgments even while the attorneys act as zealous advocates and make factual presentations designed only to further their client’s interests.

AFCs are inspired by the considerable wisdom of children, whose judgment about their best interests often proves at least as sound as that of the adults who have substituted their own judgment, and, in some cases, are not fully able to distinguish their child’s needs from their own. Requiring the AFC to advocate the child’s best interests would deny the child an effective voice in the proceedings, and creates a risk that the AFC’s advocacy will be based not on what would be best for the child, but rather on the AFC’s personal inclinations and biases. The strength of the adversary process lies in the full presentation and consideration of different points of view. Consequently, giving a greater voice to the child enhances rather than impairs both fact-finding and decision-making. If other lawyers and the judge fail to properly discharge their responsibilities, the solution lies in improving their performance, not in twisting out of shape the role and ethical responsibilities of the AFC.

Gary Solomon, The Legal Aid Society, Juvenile Rights Practice

Karen J. Freedman, Lawyers For Children

Karen Simmons, Children’s Law Center