New York Family Law Blog
In New York custody cases, courts often appoint an Attorney for the Child (AFC) to represent the child’s interests and advocate for the child’s wishes. While an AFC’s role in Family Court proceedings is well established, New York courts had disagreed about whether an AFC could independently appeal a custody decision when neither parent chose to appeal.
Background Facts
David and Fonda Abdoch were the parents of four children. They previously entered into a custody arrangement under which the children primarily resided with their mother.
The father later filed a petition seeking to modify the custody order. The mother opposed the request and filed her own competing petition. An Attorney for the Child had been appointed to represent the children’s interests during the proceedings.
The AFC informed the Family Court that the children wished to continue living primarily with their mother and opposed the father’s request for modification.
After considering the evidence, Family Court determined that modification of the existing custody arrangement was warranted. The court awarded the parents joint custody, established designated zones of influence, and ordered shared residency for the children.
The AFC filed a notice of appeal on behalf of the children. The mother did not file her own appeal, although she submitted a letter supporting the children’s position. The father did not participate in the appeal.
The Appellate Division, Fourth Department, dismissed the appeal. Relying on its prior decisions, the court concluded that children in custody matters could not independently pursue an appeal through an AFC when neither parent appealed. The AFC sought review in the New York Court of Appeals.
Issue
Can an Attorney for the Child appeal a custody determination on behalf of a child when neither parent files an appeal?
Holding
Yes. The Court of Appeals held that the Family Court Act authorizes an Attorney for the Child to appeal a custody determination on behalf of an aggrieved child, even when neither parent files an appeal.
Rationale
The Court of Appeals began by examining the language of the Family Court Act. Under Family Court Act § 1120(b), an AFC’s appointment continues when “the attorney on behalf of the child files a notice of appeal” or when a party files a notice of appeal. The court explained that Family Court Act § 1115 provides that an appeal is initiated by filing a notice of appeal.
Reading those provisions together, the court concluded that the statute plainly authorizes an AFC to file a notice of appeal on behalf of a child.
The court rejected the argument that children lack the ability to pursue an appeal because they are not full parties to custody proceedings. While acknowledging that a child is not a full party in the same way as a parent, the court explained that the Legislature nevertheless gave AFCs the authority to appeal on behalf of their clients.
The court reasoned that interpreting the statute otherwise would render portions of Family Court Act § 1120(b) meaningless. Courts generally avoid statutory interpretations that make legislative language ineffective or unnecessary.
The Court of Appeals also addressed concerns regarding who may appeal. The court explained that an AFC may appeal only when the child is an aggrieved party. Like any appellant, the child must satisfy the requirements governing appellate standing.
In this case, the children were aggrieved because the AFC argued throughout the Family Court proceedings that they wished to continue living primarily with their mother. Family Court rejected that position and modified the custody arrangement to provide for joint custody and shared residency. As a result, the children had a sufficient basis to pursue an appeal through their AFC.
The court emphasized that its decision addressed only the AFC’s authority to appeal on behalf of an aggrieved child. It did not decide how a parent’s participation or lack of participation might affect other issues that could arise during an appeal.
Because the AFC had authority to file the appeal, the Court of Appeals reversed the Appellate Division’s dismissal and returned the matter to that court to consider the issues it had not previously addressed.
Conclusion
The decision strengthens the role of Attorneys for the Child in New York custody proceedings and confirms that children have an independent voice in the appellate process when represented by an AFC.
If you are involved in a custody dispute or have questions about the role of an Attorney for the Child in a New York Family Court proceeding, contact an experienced New York family lawyer. An attorney can explain your rights, the appellate process, and the legal standards that apply to custody determinations.