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Family Court Law

Consolidated Laws of NY's FCA code

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Part 4 - Article 2 - Family Court

Attorneys for children

Section Description
241 Findings and purpose.
242 Attorney for the child.
243 Designation.
244 Duration of designation.
245 Compensation.
246 Supervision by administrative board.
248 Appropriations.
249 Appointment of attorney for child.
249-A Waiver of counsel.
249-B Rules of court.
  S 241. Findings and purpose. This act declares that minors who are the
  subject   of   family   court  proceedings  or  appeals  in  proceedings
  originating in the family court should  be  represented  by  counsel  of
  their  own choosing or by assigned counsel. This declaration is based on
  a finding that counsel is often indispensable to a practical realization
  of  due  process  of  law  and  may  be  helpful  in   making   reasoned
  determinations  of  fact  and  proper  orders  of disposition. This part
  establishes a system of attorneys for children  who  often  require  the
  assistance  of  counsel to help protect their interests and to help them
  express their wishes to the court. Nothing in this act  is  intended  to
  preclude any other interested person from appearing by counsel.

  S 242. Attorney for the child. As used in this act, "attorney for the
  child" refers to an attorney admitted to practice law in  the  state  of
  New  York and designated under this part to represent minors pursuant to
  section two hundred forty-nine of this act.

  S 243. Designation. (a) The office of court administration may enter
  into an agreement with a legal aid society for the  society  to  provide
  attorneys  to  represent  children  in  the  family  court or appeals in
  proceedings originating in the family court in a county having  a  legal
  aid society.
    (b)  The  appellate  division  of  the  supreme court for the judicial
  department in which a county is located may,  upon  determining  that  a
  county  panel  designated pursuant to subdivision (c) of this section is
  not sufficient to afford appropriate services of attorneys for children,
  enter into an agreement, subject to regulations as may be promulgated by
  the administrative board of the courts, with any qualified  attorney  or
  attorneys  to  serve  as  attorneys for children for the family court or
  appeals in proceedings originating in the family court in that county.
    (c) The appellate division of  the  supreme  court  for  the  judicial
  department  in  which  a  county  is  located  may  designate a panel of
  attorneys for children for the family court and appeals  in  proceedings
  originating  in the family court in that county, subject to the approval
  of the administrative board  of  the  courts.  For  this  purpose,  such
  appellate  division  may invite a bar association to recommend qualified
  persons for consideration  by  the  appellate  division  in  making  its
  designation,  subject  to  standards  as  may  be  promulgated  by  such
  administrative board.

  S 244. Duration  of  designation.  (a)  An  agreement  pursuant  to
  subdivision (a) of section two hundred forty-three of this  chapter  may
  be terminated by the office of court administration by serving notice on
  the society sixty days prior to the effective date of the termination.
    (b) No designations pursuant to subdivision (c) of section two hundred
  forty-three  may  be  for  a  term of more than one year, but successive
  designations may be made. The appellate division proceeding pursuant  to
  subdivision  (c)  of  section  two  hundred forty-three, may at any time
  increase or decrease the number of attorneys for children designated  in
  any  county  and may rescind any designation at any time, subject to the
  approval of the office of court administration.
    (c) may at any time increase or decrease the number of  law  guardians
  designated  in  any  county and may rescind any designation at any time,
  subject to the approval of the office of court administration.

  S 245. Compensation.  (a)  If  the  office  of  court administration
  proceeds pursuant to subdivision (a) of section two hundred  forty-three
  of  this  chapter, the agreement shall provide that the society shall be
  reimbursed on a cost basis for services rendered  under  the  agreement.
  The  agreement  shall  contain  a  general plan for the organization and
  operation of the program for the provision of attorneys for children  by
  the  respective legal aid society, approved by the administrative board,
  and the office of court administration may require such  reports  as  it
  deems necessary from the society.
    (b)  If  an appellate division proceeds pursuant to subdivision (b) of
  such section two hundred forty-three, the agreement may provide that the
  attorney or attorneys shall be reimbursed on a cost basis  for  services
  rendered under the agreement. The agreement shall contain a general plan
  for  the  organization and operation of the program for the provision of
  attorneys for children by the respective attorney or attorneys, and  the
  appellate  division  may require such reports as it deems necessary from
  the attorney or attorneys.
    (c) If an appellate division proceeds pursuant to subdivision  (c)  of
  such  section  two  hundred forty-three, attorneys for children shall be
  compensated and allowed expenses and disbursements in the  same  amounts
  established by subdivision three of section thirty-five of the judiciary
  law.

    S 246. Supervision by administrative board. The administrative board
  of the judicial conference may prescribe standards for the  exercise  of
  the  powers  granted  to the appellate divisions under this part and may
  require such reports as it deems desirable.

  S 248. Appropriations.  The  costs  of  attorneys for children under
  section two hundred forty-five shall be payable by the state of New York
  within the amounts appropriated therefor.

  S 249. Appointment of attorney for child. * (a) In a proceeding under
  article three, seven, ten, ten-A  or  ten-C  of  this  act  or  where  a
  revocation  of  an adoption consent is opposed under section one hundred
  fifteen-b of the domestic relations  law  or  in  any  proceeding  under
  section three hundred fifty-eight-a, three hundred eighty-three-c, three
  hundred  eighty-four  or  three  hundred  eighty-four-b  of  the  social
  services law or when a minor  is  sought  to  be  placed  in  protective
  custody  under  section  one  hundred  fifty-eight of this act or in any
  proceeding where a minor is detained under or governed by the interstate
  compact for juveniles established pursuant to section five hundred one-e
  of the executive law, the family court  shall  appoint  an  attorney  to
  represent  a minor who is the subject of the proceeding or who is sought
  to be placed in protective custody, if independent legal  representation
  is  not available to such minor. In any proceeding to extend or continue
  the placement of a juvenile delinquent or person in need of  supervision
  pursuant  to section seven hundred fifty-six or 353.3 of this act or any
  proceeding to extend or continue a commitment  to  the  custody  of  the
  commissioner  of  mental  health  or  the  commissioner  of  people with
  developmental disabilities pursuant to section 322.2 of  this  act,  the
  court  shall  not  permit  the  respondent  to  waive  the  right  to be
  represented by counsel chosen by the respondent, respondent's parent, or
  other person legally  responsible  for  the  respondent's  care,  or  by
  assigned counsel. In any proceeding under article ten-B of this act, the
  family  court  shall appoint an attorney to represent a youth, under the
  age of twenty-one, who is the subject of the proceeding, if  independent
  legal  representation  is  not  available  to  such  youth. In any other
  proceeding in which the court has jurisdiction, the court may appoint an
  attorney to represent the child, when, in  the  opinion  of  the  family
  court judge, such representation will serve the purposes of this act, if
  independent  legal  counsel  is  not  available to the child. The family
  court on its own motion may make such appointment.
    * NB Effective until September 1, 2020
    * (a) In a proceeding under article three, seven, ten, ten-A or  ten-C
  of  this  act  or  where  a revocation of an adoption consent is opposed
  under section one hundred fifteen-b of the domestic relations law or  in
  any  proceeding under section three hundred fifty-eight-a, three hundred
  eighty-three-c, three hundred eighty-four or three hundred eighty-four-b
  of the social services law or when a minor is sought  to  be  placed  in
  protective  custody  under  section one hundred fifty-eight of this act,
  the family court shall appoint an attorney to represent a minor  who  is
  the  subject  of  the  proceeding  or  who  is  sought  to  be placed in
  protective custody, if independent legal representation is not available
  to such minor. In any proceeding to extend or continue the placement  of
  a  juvenile  delinquent  or  person  in  need of supervision pursuant to
  section seven hundred fifty-six or 353.3 of this act or  any  proceeding
  to extend or continue a commitment to the custody of the commissioner of
  mental   health   or   the   commissioner   of  mental  retardation  and
  developmental disabilities pursuant to section 322.2 of  this  act,  the
  court  shall  not  permit  the  respondent  to  waive  the  right  to be
  represented by counsel chosen by the respondent, respondent's parent, or
  other person legally  responsible  for  the  respondent's  care,  or  by
  assigned counsel. In any proceeding under article ten-B of this act, the
  family  court  shall appoint an attorney to represent a youth, under the
  age of twenty-one, who is the subject of the proceeding, if  independent
  legal  representation  is  not  available  to  such  youth. In any other
  proceeding in which the court has jurisdiction, the court may appoint an
  attorney to represent the child, when, in  the  opinion  of  the  family
  court judge, such representation will serve the purposes of this act, if
  independent  legal  counsel  is  not  available to the child. The family
  court on its own motion may make such appointment.
    * NB Effective September 1, 2020
    (b)  In  making  an appointment of an attorney for a child pursuant to
  this  section,  the  court  shall,  to  the   extent   practicable   and
  appropriate,  appoint  the  same attorney who has previously represented
  the child.  Notwithstanding any other provision of law, in a  proceeding
  under  article  three  of  this  act  following an order of removal made
  pursuant to article seven hundred twenty-five of the criminal  procedure
  law, the court shall, wherever practicable, appoint the same counsel who
  represented the juvenile offender in the criminal proceedings.

  * S 249-A.  Waiver of counsel. A minor who is a subject of a juvenile
  delinquency or person in  need  of  supervision  proceeding  or  in  any
  proceeding where a minor is detained under or governed by the interstate
  compact for juveniles established pursuant to section five hundred one-e
  of  the  executive law shall be presumed to lack the requisite knowledge
  and maturity to waive the appointment of an attorney.  This  presumption
  may  be rebutted only after an attorney has been appointed and the court
  determines  after  a  hearing  at  which  the   attorney   appears   and
  participates  and  upon clear and convincing evidence that (a) the minor
  understands the  nature  of  the  charges,  the  possible  dispositional
  alternatives  and  the  possible  defenses to the charges, (b) the minor
  possesses the maturity, knowledge and intelligence necessary to  conduct
  his  or  her  own defense, and (c) waiver is in the best interest of the
  minor.
    * NB Effective until September 1, 2020
    * S 249-a. Waiver of counsel. A minor who is a subject of  a  juvenile
  delinquency  or  person  in  need  of  supervision  proceeding  shall be
  presumed to lack the requisite  knowledge  and  maturity  to  waive  the
  appointment  of an attorney. This presumption may be rebutted only after
  an attorney has been appointed and the court determines after a  hearing
  at  which  the  attorney  appears  and  participates  and upon clear and
  convincing evidence that (a) the minor understands  the  nature  of  the
  charges,  the  possible  dispositional  alternatives  and  the  possible
  defenses to the charges, (b) the minor possesses the maturity, knowledge
  and intelligence necessary to conduct his or her own  defense,  and  (c)
  waiver is in the best interest of the minor.
    * NB Effective September 1, 2020

  S 249-B. Rules  of court. (a) The chief administrator of the courts,
  pursuant to paragraph (e) of subdivision  two  of  section  two  hundred
  twelve  of the judiciary law, shall promulgate court rules for attorneys
  for children. Such court rules shall:
    1. prescribe workload standards for attorneys for children,  including
  maximum numbers of children who can be represented at any given time, in
  order  to  ensure  that children receive effective assistance of counsel
  comporting with legal  and  ethical  mandates,  the  complexity  of  the
  proceedings affecting each client to which the attorney is assigned, and
  the  nature  of  the  court  appearance  likely  to be required for each
  individual client; and
    2. provide for the development of training programs with the input  of
  and in consultation with the state office for the prevention of domestic
  violence.  Such  training programs must include the dynamics of domestic
  violence and its effect on victims and on children, and the relationship
  between such dynamics and the issues considered by the court, including,
  but not limited to, custody, visitation and child support. Such training
  programs along with the providers of such training must be  approved  by
  the office of court administration following consultation with and input
  from the state office for the prevention of domestic violence; and
    3.  require that all attorneys for children, including new and veteran
  attorneys, receive initial and ongoing training as provided for in  this
  section.
    (b)  Appointments  of attorneys for children under section two hundred
  forty-nine of this part shall be in conformity with the rules.

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