Assigned Counsel and Counsel Fees in New York

The right to counsel in Family Court

Family Court Act § 262(a) gives the right to the assistance of counsel to the people it lists, including the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody in a proceeding where the court can determine custody.

When a person covered by § 262 first appears, the court must advise them of their right to be represented by counsel of their choosing, their right to an adjournment to consult a lawyer, and their right to have counsel assigned by the court if they are financially unable to obtain one.

For support cases, CourtHelp states that both sides may hire their own lawyers and that if a party cannot afford one, the court may assign one at no cost.

A lawyer for the child

Family Court Act § 249(a) lists the case types where the court appoints an attorney for the child and adds that in any other proceeding within its jurisdiction, the court may appoint one. CourtHelp describes the lawyer for the child in a custody case as a lawyer the judge appoints, who talks to the child privately and tells the judge what the child wishes unless the child is very young.

Counsel fees in support cases

• Under Family Court Act § 438(a), in support proceedings and hearings to modify or enforce support orders, the court may allow counsel fees at any stage to the attorney representing the spouse, former spouse or person on behalf of the children.
• Under § 438(b), in a proceeding for failure to obey a support order, the court shall order the respondent to pay counsel fees to the petitioner's attorney upon a finding that the failure was willful.

Counsel fees in divorce cases

In divorce, separation, annulment and the other actions listed in Domestic Relations Law § 237(a), the court may direct either spouse to pay counsel fees and expert fees directly to the other spouse's attorney so the other party can carry on or defend the action. The statute creates a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, and requires both parties and their attorneys to file an affidavit with the court detailing the fee agreement. A party without a lawyer who asks for fees does not file that affidavit, provided they submit an affidavit, with supporting proof including a statement of net worth, that they cannot afford counsel.