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Thanks to the New York Law Journal for refocusing our attention on the significant issue of the child's voice in contentious custody proceedings, by publishing two recent articles—"Does Empowering Children During Divorce Litigation Serve Them Well?" authored by Lisa Zeiderman (July 26, 2019) and "Giving a Greater Voice to the Child Enhances Fact-Finding and Decision-Making," authored by Gary Solomon, Karen J. Freedman and Karen Simmons (Aug. 5, 2019).

I write to provide some historical perspective and add my voice in support of the present law, which provides that Attorneys for Children must represent to the court the child's wishes (unless the child is too young, is incapable of expressing his/her wishes, or if the child's wishes would endanger his/her health or welfare), rather than the attorney's own opinion of the child's best interest.

An Historical Perspective

In 1962, the statutory authority for the appointment of attorneys for children was set forth in §241 of the Family Court Act. The statute declares that an attorney for the child is a necessary advocate for a minor, who often requires the assistance of counsel to protect his/her interests and to communicate the child's wishes to the court. Mindful of these dual requirements for the representation of children as set forth in §241, in 2006, the Matrimonial Commission recommended the adoption, by administrative rule, of the Statewide Attorneys for Children (previously Law Guardian) Advisory Committee's uniform protocols for the representation of children. Subsequent to the Matrimonial Commission's recommendation, in October 2007, the Administrative Board promulgated 22 NYCRR 7.2, which incorporated slight modifications to the Statewide Attorneys for Children Advisory Committee's working definition of the role of the attorney for the child. This working definition was previously approved by the Administrative Board in 1997.

The Matrimonial Commission

The Matrimonial Commission, appointed by Judge Judith Kaye in 2004, on which I served as chair, was composed of 31 members—12 judges, 16 attorneys, one mental health professional, one retired law school dean, and one certified public accountant. The Commission was directed to consider all aspects of matrimonial litigation, including custody and visitation; the appointment, qualifications and use of law guardians and guardians ad litem; forensic experts and alternative dispute resolution methods, including collaborative divorce. After its statewide public hearings, interviews and investigations, the Commission was asked to make recommendations for improving the courts' critical role in the regulations and laws affecting matrimonial litigation in Family and Supreme Courts.

The instant issue—the representation of children in court proceedings—was considered at length (Matrimonial Commission Report 2006, pages 39-44). After reviewing relevant literature, considering conflicting points of view, and considerable debate, the Commission unanimously recommended the adoption of the Statewide Law Guardian Advisory Committee's working definition of the role of the attorney for the child and agreed that the ultimate determination of the custody of the child should be determined by the judge, who must be guided by the child's "best interest," having heard the contentions of all parties by their attorneys and the attorney for the child—representing the child's wishes, and after an "in camera" with the child, and review of forensic reports and other relevant records.

Significant decisional precedent (trial and appellate) before and after the Matrimonial Commission Report reflected acceptance of this role of the attorney for the child as representing the child's wishes, not the opinion of the child's attorney as to his best interests. Koppenhoffer v. Koppenhoffer 159 A.D.2d 113 (2d Dep't 1990), Eschbach v. Eschbach 56 N.Y.2d 167 (1982); Hughes v. Hughes, 79 A.D.3d 473 (1st Dep't 2010).

I am sympathetic to Ms. Zeiderman's concerns that there may be instances where the child has been manipulated and where the best interest of the child may be more appropriately and convincingly expressed by the child's attorney. However, as her article notes, the court is directed to consider the contentions of all parties and their counsel, as well as "the arsenal of tools available." Those tools include the appointment of a forensic examiner, and significantly, meetings with the child "in camera" where the judge can hear directly from the child. The judge may have more than one "in camera" meeting with the child and his/her attorney during the course of the proceedings and before their conclusion.

I enthusiastically concur with the sentiments so well expressed in the article authored by Solomon, Freedman and Simmons, and also refer your readers to the recent significant opinion authored by Presiding Justice Alan Scheinkman, Newton v. McFarlane, 174 A.D.3d 67 (2d Dep't 2019), confirming, inter alia, the appropriateness of the present rule regarding the role of attorneys for children:

Substantively, and more importantly, it cannot be denied that a teenaged child has a real and substantial interest in the outcome of litigation between the parents as to where the child should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child's parents. As Chief Judge Charles Breitel stated in the landmark case of Matter of Bennet v. Jeffreys, 40 N.Y.2d 543, 546, 387 N.Y.S.2d 821, 356 N.E. 2d 277: "a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of … constitutional magnitude." Among those rights is the child's right to have his or her best interests, and his or her position concerning those interests, given consideration by the court.

Judges who have presided over custody trials commonly agree that the decisions required of them as to the child's best interest are the most trying and difficult of their obligations, often causing sleepless nights and painful doubts. Only one judge, of historic note King Solomon (1 Kings 3:16) had before him a rare and simple custody decision—to award custody to the mother who relinquished her claim to the child in order to save her child's life.

Our public voice as citizens is important. We should not underestimate the obligations we all share in exercising our influence in the selection and appointment of wise, conscientious, sensitive judges, who are responsible, inter alia, for determining the child's best interests.

Sondra Miller is a retired Justice of the Appellate Division, Second Department, and is chief counsel to McCarthy Fingar in White Plains.