Divorce is not only for grown-ups. Children are the collateral damage of their parents’ divorce. While that sounds harsh, it is the uncomfortable reality. In every divorce where the children are minors (in New York, under age 18), there is always a custody decision which results in a determination of living arrangements for the children. The parents, by deciding to divorce, have chosen to live separate and apart, but the children – not so much. Nonetheless, that becomes their new reality, which will impact the children’s relationship with each parent.
Deciding where the children are going to live is not like dividing up the furniture and deciding who gets Grandma’s china.
“A child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too…” Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546 (Court of Appeals 1976).
“The child’s expressed preference is an additional factor to be considered, taking into account the child’s age, maturity, and any potential influence that may have been exerted on him or her.” Tejada v. Tejada, 126 A.D.3D 985 (2nd Dept. 2015); Eschbach v. Eschbach, 56 N.Y.2d 167 (Court of Appeals 1982).
The child’s influence on his/her own custody determination was increased dramatically in 2007 by a change to the New York Rules of the Chief Judge Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts. (see New York Rules of the Chief Judge Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts, Section 7.2 and NYLJ July 26, 2019, “Does Empowering Children During Divorce Litigation Serve them Well” by Lisa Zelderman).
In contested litigated custody matters, the Court appoints an attorney for the child or children as the case may be. Prior to 2007, the role of the attorney for the child was not adequately defined, but was construed to be to advocate for the child’s best interest. However, in 2007 after the ruling by the Chief Judge of New York, the role was clarified so that the attorney for the child is to “zealously advocate the child’s position”(New York Rules of the Chief Judge Section 7.2[d]), even if the child’s preference may not be in the child’s best interest. While Section 7.2 does provide exceptions to the rule, the usual procedure is that the child’s position is what the attorney for the child must advocate. There are exceptions to the rule. If the attorney determines that the child lacks the capacity for knowing, or that “following the child’s preference would result in substantial risk of imminent serious harm,” the attorney for the child may advocate for what is in the child’s best interest. New York Rules of the Chief Judge Section 7.2(d)(3).
The 2007 ruling effectively gives the child a powerful voice in the proceedings, and depending on the age of the child, the voice can have a profound effect on the outcome. If the case goes to trial, the Judge makes the ultimate decision as to custody, using the best interest standard. The judge considers the positions of the Mother, Father and child. Each party’s attorney advocates for the client’s position by presenting evidence and testimony consistent with that position. The child, thus, becomes a party to the action with the same input as each of the parents.
The fact that the child is considered an actual party even though the child is neither Plaintiff nor Defendant in the matter, is evident in a recent appellate case regarding a modification of custody, Matter of Newton v. McFarlane (NY Law Journal June 11, 2019, 2nd Dept.). The appellate court held that the Father should be given sole custody of the child, finding that the trial court’s decision to change custody from the Father to the Mother was in error because the lower court “failed to give due consideration to the expressed preferences of the child, who was 14 and 15 years old at the time of the proceedings in the Family Court, and who communicated a clear desire to remain in the father’s custody.” The appeal was taken on the child’s behalf by the attorney for the child, with the Court determining that the child had the right and standing to file an appeal from the Family Court’s decision, as the child was ‘’aggrieved” by the lower court’s decision.
There is a less contentious way to determine custody and other divorce issues. That other way would be the Interdisciplinary Collaborative Divorce method using mediation techniques and a team approach to obtaining a divorce settlement and agreement on custody and parenting time. This avoids abdicating the decision about the future of the family to a third party – the Judge.
The Interdisciplinary Collaborative method is a means of alternative dispute resolution eliminating the need for a judge and the court system to make a decision for the family. In a Collaborative Divorce case that involves custody, instead of an attorney representing the child and advocating for the child’s position, there is a child specialist: a mental health professional who gives voice to the child’s concerns and interests as well as acknowledging the interests of the parents.
A legal background may not be the best preparation for an individual who represents a child in a custody case, especially if that person’s role is defined as zealously representing the child’s position, even if that position is not in the child’s best interest. A mental health professional whose practice consists of children and families has a different perspective, more akin to helping the child and the family rather than advocating a position. Together with the parents, the attorneys for the parents and the mental health professional, a custody settlement that is in the best interest of the children and the parents can be agreed to collaboratively, rather than have a decision imposed by a Judge.