In New York, the purpose of the Attorneys for Children Program (AFC) is to provide representation to minors in court proceedings such as proceedings related to custody and visitation. The AFC is not to show bias for or against any parent. They are to advocate for the child and make decisions based on what is in the child’s best interests. In Proceeding Under Article 6 of the Family Court Act D.D. v. R.M., the court was asked to decide if there should be a custody modification giving sole custody of the children to the father due to the mother violating the custody order. During the proceeding the mother accused the AFC of being inappropriately aligned with the father and filed a motion to have the AFC removed.
Background
The father is entitled to weekly parenting time every Tuesday and Thursday from 2:45 PM to 6:30 PM, and every other Friday to Sunday from 6AM to 6PM, and that he has not seen or Face-Timed with the Children since March 16, 2021. He alleges that although he has arrived at the mother’s home to pick up the Children for all his Court-ordered parenting time, the mother has refused to bring the Children out of the house, and she claims that the Children are afraid of the father and that they do not want to see the father.
The father alleges that that the mother has ordered the children to take videos of each room in his house and has falsely claimed a COVID diagnoses to avoid allowing the children to see him during their spring break. The father alleged other instances in which the mother made it difficult for him to see the children and intentionally tried to alienate the children from him.
The father also stated that the AFC has represented the children for a long time, and that she always communicated the desires of the children without judgement. The AFC also offered the use of her office to facilitate his parenting time. The other refused.
The AFC filed a motion that the mother violated the Stipulation of Settlement by refusing to allow the father to have parenting time and request that the custody agreement be modified giving the father sole custody.
The mother responded to the father’s allegations by asserting that she has not done anything to cause the father to miss parenting time and that the children refuse to go with the father because they are afraid of him. The mother also argued that the AFC’s Contempt Motion against her shows that the AFC has a conflict of interest and that she has inappropriately aligned herself with the father.
The AFC’s responded to the mother’s by stating that based on her years long experience with the family, the children’s alienation from their father was a direct result of the mother’s behavior. She also noted that she is not inappropriately aligned with the father. She just happens to agree with the father on this specific matter.
Discussion
The court reviewed two main issues: whether there should be a modification to the custody order and whether the AFC should be removed. The AFC filed a motion for contempt, claiming that the mother interfered with the father’s parenting time. The court denied the motion because of the sharp difference in testimony. The father claimed that the mother refused to allow the children to go with him for his parenting time, while the mother claimed that the children refused to see him. Thus, because there were factual issues which could not be resolved in that hearing, the court ordered that the AFC’s Contempt Motion to be scheduled for a hearing immediately.
As far as the mother’s request that the AFC be removed due to bias, the court denied the request. The court found no evidence that the AFC did not perform her duties diligently. Furthermore, the court found that there was no indication that the AFC was aligned with the father and biased against the mother. That the AFC filed a motion holding the mother in contempt was not necessarily and indication of bias of conflict of interest.