Representation of Children in Child Abuse and Neglect Proceedings - New York

Making The Appointment

Citation: Family Court Act § 1016

The court shall appoint an attorney to represent a child who has been allegedly abused or neglected upon the earliest occurrence of any of the following:

• The court receiving notice of the emergency removal of the child
• An application for an order for removal of the child prior to the filing of a petition
• The filing of a petition alleging abuse or neglect

The Use of Court-Appointed Special Advocates (CASAs)

This issue is not addressed in the statutes reviewed.

Qualifications/Training

Citation: Family Court Act § 242

The term 'attorney for the child' refers to an attorney admitted to practice law in the State of New York who has been designated to represent a minor.

Specific Duties

Citation: Family Court Act §§ 1016; 1075; NY Ct. Rules § 7.2

Whenever an attorney has been appointed by the family court to represent a child, the appointment shall continue without further court order or appointment during an order of disposition issued by the court directing supervision, protection, or suspending judgment, or any extension thereof; an adjournment in contemplation of dismissal; or the pendency of the foster care placement. All notices and reports required by law shall be provided to the attorney for the child. Such appointment shall terminate upon the expiration of the order unless another appointment of an attorney has been made by the court or unless the attorney makes application to the court to be relieved of his or her appointment. Upon approval of an application to be relieved, the court shall immediately appoint another attorney for the child to whom all notices and reports required by law shall be provided.

In addition to all other duties and responsibilities necessary to the representation of a child, an attorney for the child shall, upon receipt of a report from a child protective agency, review the information contained therein and determine whether there is reasonable cause to suspect that the child is at risk of further abuse or neglect or that there has been a substantive violation of a court order. When the attorney makes such a determination, he or she shall apply to the court for appropriate relief. Nothing contained in this section shall relieve a child protective agency or social services official of its duties pursuant to this act or the social services law.

In court rules: In proceedings in which the child is the subject, the attorney for the child must zealously advocate the child's position. In ascertaining the child's position, the attorney must consult with and advise the child to the extent of and in a manner consistent with the child's capacities and have a thorough knowledge of the child's circumstances.

If the child is capable of knowledgeable, voluntary, and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.

When the attorney for the child is convinced either that the child lacks the capacity for knowledgeable, voluntary, and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position.

How the Representative Is Compensated

Citation: Family Court Act § 1016

An attorney for the child shall be entitled to compensation pursuant to applicable provisions of law for services rendered up to and including disposition of the petition. The attorney shall, by separate application, be entitled to compensation for services rendered subsequent to the disposition of the petition.