Role of Attorney for the Child in Cases of Parental Alienation

In October 2007, New York Chief Judge Judith S. Kaye issued an administrative order defining the function of the law guardian as the attorney for the child. Under section 7.2 of the Rules of the Chief Judge, “If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests.” “When the attorney for the child is convinced either that the child lacks the capacity for knowing, 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.”

What then is an attorney to do when they represent a child who is the subject of a custody dispute and whom they suspect has been alienated from one parent by the actions of the other parent? In some high conflict custody cases, children will sometimes turn against one parent, without justification. Often a contributing factor of this behavior is the actions of the non-alienated parent who has indoctrinated the child to act in such a manor.

If, after counseling their client, the attorney for the child suspects parental alienation, may they substitute judgment? One could argue that a child who has been alienated by one parent from another “lacks the capacity for knowing, voluntary and considered judgment” and so “the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes.” The criticism of that position would be that the attorney for the child is not in any way qualified to diagnose parental alienation and so without expert testimony to support a suspicion of parental alienation, the attorney may not substitute judgment.

The answer to this issue will depend heavily on how the courts interpret “knowing, voluntary and considered judgment” and whether any attorney representing a child client is willing to use this argument to defend a position of substituted judgment.