NY Court of Appeals resolves Appellate Division inconsistency

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New York state’s highest court has reversed a lower court ruling finding that an attorney for the child (AFC) has the authority to appeal a custody determination when neither parent challenges the determination.

“The question of whether an attorney for the child (AFC) has the authority to appeal a custody determination made pursuant to Family Court Act Article 6 has divided the Appellate Division,” Court of Appeals Judge Madeline Singas wrote in a decision released Thursday.

“We hold that under the plain language of the Family Court Act, an AFC has the authority to appeal a custody determination when the subject child is aggrieved,” she wrote.

In February 2025, the Fourth Department voted unanimously to dismiss an appeal from the AFC challenging a custody determination.

“Contrary to the contention of the AFC, we find no basis in this record to depart from our prior case law holding that children in a custody matter do not have full party status,” the Fourth Department decision stated.

In an Article 6 proceeding, “the child may be represented by an attorney appointed at the court’s discretion,” according to the Court of Appeals decision.

“The AFC must zealously represent the child’s interests, including by advocating for the child’s wishes in Family Court,” Singas wrote.

The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client child when neither parent has appealed.

The Second Department has endorsed the AFC’s authority to appeal on behalf of their client. The First and Third Departments have adopted the Second Department’s reasoning.

The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent appeals.

The appeal decided Thursday involves a mother, father, and their four children. The parents agreed to a custody order providing that the children lived primarily with their mother.

The father petitioned to modify the custody order, and the mother opposed it in a competing petition.

The attorney appointed to represent the four children opposed the father’s petition and advocated that the children wished to continue living primarily with mother.

The Family Court judge issued an order awarding the parents joint custody “with designated zones of influence” and shared residency and the AFC appealed.

Although the mother did not file her own appeal, she filed a letter with the Appellate Division supporting the children’s appeal. The father did not appear in connection with the appeal.

The Appellate Division dismissed the appeal, following Fourth Department precedent holding that children in custody matters cannot appeal independent of the parents.

“We hold that the Family Court Act authorizes an AFC to appeal on behalf of their client,” Singas wrote.

According to the Family Court Act, an AFC appointment continues when the AFC files a notice of appeal. The Act also provides that an appeal is taken by filing a notice of appeal, which begins the appellate process.

“Reading these two sections in harmony, the Family Court Act clearly authorizes an AFC to appeal a Family Court decision on behalf of their client,” Singas wrote.

“The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings,” she wrote.

“We hold only that an AFC is authorized to appeal a custody determination on behalf of an aggrieved child. We have no occasion to address how a parent’s participation or failure to participate in an appeal may bear on other issues raised on such an appeal,” she wrote.

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