Things or People? A Move Toward Recognizing Children as People in Private Custody Disputes

In 2025, the New York Appellate Division quietly signaled a departure from a core, and outdated, tenet of American custody law.^[1] In Matter of Fenton v. Smith, the Fourth Department reversed a family court order modifying custody, holding that the record was “insufficient” to determine the child’s “best interests,” “particularly where, as here, the court failed to appoint an Attorney for the Child at the contested hearing.”^[2]

In Matter of Fenton, the Appellate Division reversed the family court’s order granting a change in custody in favor of the father on the theory that the mother defaulted.^[3] The appellate court held that the mother did not default, and although the appellate court itself could conduct a “best interests” analysis to determine custody, it declined to do so because of the insufficiency of the family court’s record.^[4] While not itself notable, their exhortation to the family court—that it did not produce a sufficient record because it did not appoint an attorney for the child, is.^[5] It demonstrates the court’s recognition that without independent counsel, children in private custody proceedings are not sufficiently represented or protected by the law.

For decades, scholars have criticized the “best interests” standard as inherently indeterminate and inviting of a discretion tainted by dangerous biases.^[6] Essentially, the standard makes its way into various state statutes through shorter or longer lists of non-exhaustive, open-ended factors upon which courts are instructed to determine the outcome of private custody disputes.^[7] These factors include emotional ties, stability, health, the current parenting status, and many others.^[8] It is not difficult to see how such factors invite implicit bias by judges who might have certain conceptions about how families both currently do and realistically should function.

This becomes especially problematic when one notices that almost everywhere, children do not have a right to counsel in private custody disputes, appointment at best being up to the court’s discretion, and often at the parents’ expense.^[9] A classic case that demonstrates the danger of biases being infused into the “best interests” factors is In re Marriage of Diehl.^[10] In that case, an Illinois appellate court upheld a custody determination in which a mother’s sexual orientation was treated as a relevant factor under the “best interests” framework.^[11] Appellate review provides little corrective recourse, since appellate courts are highly deferential to family court custody determinations given the fact-intensive nature of the proceedings.^[12]

Against this backdrop, Fenton matters. The New York appellate court did not merely note that the appointment of an Attorney for the Child (“AFC”) is strongly preferred, it emphasized that without appointment, the record is insufficient, preventing the appellate court from issuing a final decision and instead remanding, forcing the trial court to redo the custody hearing, this time with an AFC.^[13]

New York’s unique and progressive statutory framework permits appointment of a state-funded AFC in private custody proceedings, allowing judges not to worry whether either party will be able to pay a court appointed AFC.^[14] In 2024, the Appellate Division’s Fourth Department reported more than $22 million in expenditure on AFCs, highlighting both the scale of custody litigation and the importance of representation for children in many custody cases.^[15]

Nevertheless, according to New York statute, AFC appointment remains at the discretion of the judge.^[16] A previous case, Matter of Ames v. Ames, maintained that while preferred, appointment was still a preference.^[17] Fenton takes a step further, closing the statutory gap by a judicially imposed quasi-requirement of AFC appointment, at least in one of New York’s appellate divisions.^[18]

As demonstrated, custody law still treats children as objects of adjudication rather than legal subjects with agency. When contemplating children’s rights, people often miss a critical area in which children are seriously deprived of basic rights by the American legal system: private custody disputes. It is a sensible oversight; until divorce, the child has no other choice than living with both parents under one roof. All of a sudden, that changes, and now the child is going to live with one, both, or neither under very different circumstances, but is still generally living with the same people they had to live with previously. But that view misses a critical point: now the courts are involved, and will be making a very official decision that will seriously impact the future of the child. When the government is tasked with making a significant decision that will impact every corner of someone’s life, that person ought to be fully protected and represented, not treated as an object of dispute between two parents.

Fenton is a critical step. But it is a small one, and there is a long way to go in ensuring protection and representation for children in private custody disputes. To fully ensure justice, legislatures should adopt a presumption of state-funded counsel for children in contested custody proceedings and move to ensure a model of representation that centers the child’s wishes, not a subjective determination of “best interests.” By recognizing children as legal subjects with a voice rather than legal objects that are pawns of others’ disputes, the role of implicit and harmful biases will be reduced while the goal of equity for children will be furthered.

^[1] Matter of Fenton v. Smith, 225 A.D.3d 839, 841 (N.Y. App. Div. 2025).

^[2] Id.

^[3] Id.

^[4] Id.

^[5] Id.

^[6] Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 L. & Cᴏɴᴛᴇᴍᴘ. Pʀᴏʙs. 226, 228-29 (1975).

^[7] See, e.g., N.Y Dᴏᴍ Rᴇʟ. Lᴀᴡ § 240(1)(a) (McKinney 2025); Cᴀʟ. Fᴀᴍ. Cᴏᴅᴇ § 3011(a) (West 2025); 750 Iʟʟ. Cᴏᴍᴘ. Sᴛᴀᴛ. 5/602.7 (2024).

^[8] 750  Iʟʟ. Cᴏᴍᴘ. Sᴛᴀᴛ. 5/602.7 (2024) (listing seventeen factors including wishes of the parents, wishes of the child, and mental/physical health of all individuals).

^[9] See Civil Right to Counsel Initiative, Nᴀᴛ’ʟ Cᴏᴀʟ. ғᴏʀ Cɪᴠ. Rɪɢʜᴛ ᴛᴏ Cᴏᴜɴsᴇʟ, https://civilrighttocounsel.org/map/ [https://perma.cc/HV38-Z3H4].

^[10] In re Marriage of Diehl, 582 N.E.2d 281 (Ill. App. Ct. 1991).

^[11] Id.

^[12] Mnookin, supra note 5, at 253-55.

^[13] Fenton, 225 A.D.3d at 841.

^[14] N.Y. Fᴀᴍ. Cᴛ. Aᴄᴛ § 249 (McKinney 2025).

^[15] N.Y. Uɴɪғɪᴇᴅ Cᴏᴜʀᴛ Sʏs., Aᴛᴛᴏʀɴᴇʏs ғᴏʀ ᴛʜᴇ Cʜɪʟᴅ Aɴɴᴜᴀʟ Rᴇᴘᴏʀᴛ: FY 2024, at 6 (2024).

^[16] N.Y. Fᴀᴍ. Cᴛ. Aᴄᴛ  § 249(a) (McKinney 2025).

^[17] Matter of Ames v. Ames, 97 A.D.3d 914, 915 (N.Y. App. Div. 2012).

^[18] Fenton, 225 A.D.3d at 841.