Also known as:attorneys for the child · attorney for a child · child's attorney · attorney ad litem for child
Written by attorneys — see sources below.
A court-appointed advocate who represents the independent interests of a minor or dependent child in disputes over the child's support, custody, and visitation. The court must also enter an order allocating the attorney's costs, fees, and disbursements against either or both parents, or against a designated public agency if the responsible parent is indigent.
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How its tested
Common Examples
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Custody Dispute Over Therapy Costs
Maria and Luis dispute custody and support for their five-year-old daughter Elena after separating. Elena needs ongoing therapy following parental arguments, and the parents' modest incomes raise questions about who will cover those expenses. The court appoints an attorney for Elena to advocate solely for her emotional and financial needs in the custody and support determinations. The judge then orders that the attorney's fees be paid by one or both parents according to their means, shifting any shortfall to a public agency if either parent qualifies as indigent.
Foster Care Return Hearing
A foster parent petitions to retain custody of a child placed in her home after the biological parent seeks return. The family court schedules a hearing to decide whether the child should return home, remain in foster care, or be placed for adoption. The court directs that the attorney for the child receive formal notice and an opportunity to participate in the proceeding alongside the parent, agency, and foster parent. The attorney presents arguments focused exclusively on the child's welfare and stability.
Smith v. Organization of Foster Families For Equality and Reform (OFFER)431 U.S. 816, 862-863
In 1976 appellees consisting of individual foster parents and the Organization of Foster Families for Equality and Reform filed a civil rights class action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of New York. They acted on behalf of themselves and foster children who had resided in their homes for a year or more.
They named as defendants various New York State and New York City child welfare officials. The suit sought declaratory and injunctive relief against the pre-removal procedures provided in state statutes and regulations.
The District Court appointed independent counsel to represent the foster children to forestall conflicts. It also granted leave to natural mothers to intervene as defendants. The court certified a class of foster parents and children who had lived together for more than one year.
A divided three-judge District Court held the existing pre-removal procedures constitutionally defective. It permanently enjoined their enforcement. Four appeals reached the Supreme Court from the New York City officials, New York State officials, independent counsel for the children, and intervening natural mothers.
Under New York's foster care system most placements occur through voluntary written agreements. Natural parents and authorized agencies execute these agreements to transfer care and custody of the child to the agency. The agency then places the child in a licensed foster home under a contract allowing either party to terminate at will. Natural parents retain legal guardianship and an obligation to visit and plan for the child's future. Children may also enter foster care by court order following findings of abuse, neglect, or delinquency.
When an agency decides to remove a child, state regulations require ten days' written notice to foster parents except in emergencies. Opportunities exist for conference and fair hearing. Additional procedures apply in New York City. Judicial review is available under § 392 after eighteen months. The record showed that the median duration of foster care in New York exceeded four years. Many children experienced multiple placements and limited contact with natural parents.
When may a court appoint an attorney for the child in a custody or support proceeding?
The court may appoint an attorney whenever it is resolving disputes over a minor child's support, custody, or visitation. Appointment is discretionary and turns on whether the child's independent interests require separate advocacy, such as when parental conflict or complex needs risk obscuring the child's welfare.
Supporting sources
Who pays the fees of an appointed attorney for the child?
The court must enter an order directing payment of the attorney's costs, fees, and disbursements against either or both parents. If the responsible parent is indigent, the appropriate public agency bears the expense instead.
Supporting sources
Does appointment of an attorney for the child require parental consent or a request from the child?
No. The court possesses independent authority to appoint counsel and need not obtain agreement from either parent. Appointment also does not depend on a personal request from the child, who may be too young to initiate the request.
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How does an attorney for the child differ from a guardian ad litem?
An attorney for the child functions as legal counsel who owes duties of advocacy and confidentiality to the child. A guardian ad litem investigates and reports recommendations to the court but does not provide legal representation or argue positions on the child's behalf in the same adversarial manner.
Supporting sources
431 U.S. 816, 862-863
…upon the parent or other person having custody of the child, the authorized agency, the foster parent, the law guardian, the attorney for the child and such other persons as the court determines should receive notice. . . . . . . . "7. At the conclusion of the hearing, the court may make any one of the following orders: "(a) enter an…
Family LawChild custody · Procedural issuesUBEFoundational