Right to counsel

Key_development Question_mark

Legislation, Abuse/Neglect/Dependency - Children

"[M]inors who are the subject of family court proceedings or appeals in proceedings originating in the family court should be represented by counsel of their own choosing or by assigned counsel." N.Y. Fam. Ct. Act. § 241. Under N.Y. Fam. Ct. Act. § 249(a), the court shall appoint counsel for a minor "if independent legal representation is not available to such minor" in child protective proceedings and permanency hearings.


 

Where these proceedings take place in the New York Supreme Court or Surrogate's Court, the minor has the same rights to counsel as identified above. N.Y. Jud. Law § 35(7). The Family Court also has discretion to appoint a law guardian for the child in other proceedings, where "such representation will serve the purposes of this act." N.Y. Fam. Ct. Act § 249(a).


 

In New York, law guardians act as attorneys for minors, advocating the minor's position, as opposed to advocating the law guardian's view of what is in the best interest of the child. See N.Y. Ct. Rules § 7.2(c), (d) ("In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position.").

 

 

Law guardians appointed under section 249 also continue their representation of the child in the event of an appeal. N.Y. Fam. Ct. Act. § 1120(b).


 

Appointment of Counsel: categorical Qualified: no