Discretionary appointment of counsel

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Legislation, Custody Disputes - Children

N.Y. Fam. Ct. Act. § 249(a) states, "In any other proceeding in which the court has jurisdiction, the court may appoint an attorney to represent the child, when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child. The family court on its own motion may make such appointment." See Wilson v. Bennett, 282 A.D.2d 933, 724 N.Y.S.2d 520 (N.Y.A.D. 2001) (applying this provision to private custody dispute).   In Matter of Ames v. Ames, 97 A.D.3d 914 (N.Y. App. Div. 2012), the court commented that “appointment of an attorney for the child in a contested custody matter remains the strongly preferred practice ...”


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).


In New York, appointed counsel act as attorneys for minors, advocating the minor's position, as opposed to advocating counsel'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.").

Appointment of Counsel: discretionary Qualified: no