In a custody proceeding, the parties can ask or the court can direct that an attorney be appointed to represent the minor children. An attorney for the child (AFC) represents not the parents’ interests, but only the child’s interests. AFCs are not social workers or psychologists for the children and cannot act in such capacities. In particular, AFCs cannot act as witnesses in court proceedings.
AFCs were formerly called law guardians. As law guardians, the understanding was that these representatives were to determine in their own judgment what was in the best interests of the children they were representing and convey this to the court. Now, however, as AFCs, these representatives are only to report the desires of the children they represent. However, when a child demonstrates a misguided belief or seeks a course of action that would place them in danger, an AFC may counter the beliefs of the child, but must at least report to the court these supposedly misguided wishes of the child.
An important principle in legal ethics is that parties who are represented by lawyers may not be contacting directly by opposing counsel. This same rule holds true for AFCs and their child clients. While an AFC or any legal representative may consent to such contact, absent permission, an AFC cannot speak directly with a parent. Thus, while it may be tempting as a parent to want to contact the AFC directly to know your child’s perspective with respect to the legal proceedings, this is not permissible.
Notably, AFCs can also be discharged by the Court if the represented child lodges a complaint that they are not being adequately represented by the AFC. Differences of opinion between the child and the AFC or the relationship being otherwise tainted in some way could warrant substitution of the AFC. Generally, a child who is 14 will have greater insight into what is in their own best interests than one who is 5, and an older child’s input in a custody proceeding may carry more weight with the Court. However, regardless of the child’s age, an AFC must represent the interests of the child in the proceeding and zealously advocate for those interests.