Children have the right to choose their counsel in Family Court child custody cases. Yet in the over 21 years that I have been practicing, I never once heard a Family Court judge inform the litigants of that right for their children.

Family Court Act §249 stipulates that a law guardian must be appointed to represent the child "if independent legal representation is not available to such minors." Section 249 is read together with Section 241 that children "... should be represented by counsel of their own choosing or by law guardians." To be consistent with recent revisions, New York's Matrimonial Commission recently changed the term "Law Guardians" to "attorney for the child", as codified in 22 NYCRR 7.2.

A parent can retain an attorney for his child provided the children choose the attorney pursuant to Section 241, stating children "... should be represented by counsel of their own choosing or by law guardians." Fargnoli v. Faber, 105 A.D.2d 523, 481 N.Y.S.2d 784 (3 Dept. 1984). To insure Sections 241 and 249 are used properly, the court may "conduct a voir dire on the record to ascertain the absence of a potential conflict, to demonstrate that counsel is indeed "independent", and to ascertain that the child wants the specific attorney to represent him." FCA 249, Practice Commentaries, 2008 Main Volume by Prof. Merril Sobie. Children, like anyone else brought before a court, have the right to choose their own representation and they must be presented with this choice. S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 (1987 ).

I suggest Family Courts advise the parents of this right of their children before the Court automatically chooses an "attorney for the child" from its list of local attorneys whom the Court feels comfortable with or because the Court feels a particular attorney on its list could handle the representation given the custody case particulars. It's not the court being represented when it is picking and choosing counsel for the child from a list it maintains, it is the child's right to counsel of his or her own choosing pursuant to Sections 249 and 241. Courts must inform them of their rights.