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Children in Child Custody Cases Choose Their Own Attorney

Children have the right to choose their counsel in Family Court child custody cases. Even the parents may be able to pay for the child's legal representation rather than use a court appointed Attorney for the Child who has little interest in the case due to their own overwhelming caseload.  Family Court judges never inform the litigants of the child's right's choose their own lawyer.  Here's the law that could help you get rid of the court appointed attorney for the child.

New York Family Court Act ยง249 stipulates that a law guardian must be appointed to represent the child "if independent legal representation is not available to such minors." Section 249 is read together with Section 241 that children "... should be represented by counsel of their own choosing or by law guardians." To be consistent with recent revisions, New York's Matrimonial Commission recently changed the term "Law Guardians" to "attorney for the child", as codified in 22 NYCRR 7.2.

A parent can retain an attorney for his child provided the children choose the attorney pursuant to Section 241, stating children "... should be represented by counsel of their own choosing or by law guardians." Fargnoli v. Faber, 105 A.D.2d 523, 481 N.Y.S.2d 784 (3 Dept. 1984). To insure Sections 241 and 249 are used properly, the court may "conduct a voir dire on the record to ascertain the absence of a potential conflict, to demonstrate that counsel is indeed "independent", and to ascertain that the child wants the specific attorney to represent him." FCA 249, Practice Commentaries, 2008 Main Volume by Prof. Merril Sobie. Children, like anyone else brought before a court, have the right to choose their own representation and they must be presented with this choice. S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 (1987 ).

I suggest Family Courts advise parents of this right of their children before the Court automatically chooses an "attorney for the child" .  Of course, the age of the child is taken into consideration, which in New York a nine year old child has been gven deference to their wishes.  Mainly, the age is around twelve years of age that courts will hear the child.  I had a case where a 10 year old terminated his law guardian.  It is important to hear the children and advise the parent's of this right to choose their own counsel.  Parents become discouraged with the court system when they realize the Court chooses a law guardian from its own list of local attorneys that the court has worked with in the past.   Informing the parents of their child's rights at the outset of the case would prevent alot of misunderstandings about the court system being partial to the law guardians it works with.

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