Lawyer male Judge male.jpgIf the parents reach an agreement resolving custody litigation, may the court approve and order the settlement over the objection of the attorney for the children. Yes, as long as the attorney for the children is given the right to be heard by the court and the court determines that the settlement is in the best interests of the children.
In Matter of McDermott v. Bale, the Appellate Division, Fourth Department, in its April 27, 2012 decision, affirmed the order of Orleans County Family Court Judge James P. Punch which had approved the parents’ settlement. Under their stipulation, the parents are to share joint custody of their two children, with primary physical residence to the mother. The attorney for the children (AFC) had disagreed with the eve-of-trial stipulation of the parents. However, Judge Punch approved the stipulation over the AFC’s objection.
The appellate court acknowledged that the AFC must be afforded the same opportunity as any other party to fully participate in the proceeding. A court may not relegate the AFC to a meaningless role. However:

the children represented by the AFC are not permitted to “veto” a proposed settlement reached by their parents and thereby force a trial.

Here, the AFC had stated in detail all of the reasons that he opposed the stipulation. Indeed, the court gave credence to many of the comments made by the AFC, as did the attorneys for the parents, both of whom agreed to modify the stipulation to address several of the AFC’s concerns.
Nonetheless, the court ruled:

We cannot agree with the AFC that children in custody cases should be given full-party status such that their consent is necessary to effectuate a settlement. The purpose of an attorney for the children is “to help protect their interests and to help them express their wishes to the court” (Family Ct Act § 241). There is a significant difference between allowing children to express their wishes to the court and allowing their wishes to scuttle a proposed settlement.

In a custody case, if the court appoints an attorney for the children (and the court is not required to do so), the AFC has the right to be heard with respect to a proposed settlement and to object to the settlement. The AFC does not have the right to preclude the court from approving the settlement in the event that the court determines that the terms of the settlement are in the children’s best interests.

Parents who wish to settle their disputes should not be required to engage in costly and often times embittered litigation merely because their children or the attorney for the children would prefer a different custodial arrangement.

Sanford A. Church, of Albion, was the Attorney for the Children. P. Andrew Vona, of Muscato, Dimillo & Vona, L.L.P., of Lockport represented the mother, James D. Bell, of Brockport, represented the father.