New ABA Standards of Practice

All states have adopted laws providing for the mandatory or discretionary appointment of an attorney to represent children in custody cases. However, not all jurisdictions have established standards of practice for such attorneys. Representation of a child in such cases presents unique challenges to lawyer/client communication and interaction not encountered in the adult-representation setting.

At its Annual Meeting in August 2003, the House of Delegates of the American Bar Association adopted Standards of Practice for Lawyers Representing Children in Custody Cases (Standards). These standards are the result of a 10-year project undertaken by the ABA Section of Family Law, involving lawyers, judges and legal scholars. Adoption of the Standards establishes clear ABA policy for lawyers representing children in custody cases. In 1996, the ABA adopted similar Standards of Practice for representing a child in Abuse and Neglect Cases.

Highlights of the Standards

No More 'Guardian Ad Litem'

One of the difficulties facing the lawyer who represents a child in a custody case involves the proper perception of the lawyer's role. Is the lawyer an investigator? A protector? A surrogate decision-maker? Many states allow for the appointment of a “guardian ad litem” for a child. The guardian ad litem investigates and reports or testifies regarding the child's best interests in a given custody matter. Over time, the parameters of the guardian ad litem's duties have become blurred or expanded to include many functions (facilitator; parenting coordinator; evaluator; advocate; referee; arbitrator). In some states, the guardian ad litem need not be an attorney. Volunteer non-lawyers are often called upon to represent children in complex custody cases. As a result, the child faces the prospect of ineffective or ill-defined, “lawyer representation.”

The Standards do away with the term “guardian ad litem.” Instead, they create two distinct definitions of roles for a lawyer representing children in custody cases. A lawyer can be either a “Child's Attorney” or a “Best Interests Attorney.” Although there are certain duties common to both lawyer-roles in the Standards, the duties unique to each are also clearly set forth.

The “Child's Attorney” is defined as: “A lawyer who provides independent legal counsel for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.” The “Best Interests Attorney” is defined as: “A lawyer who provides independent legal services for the purpose of protecting a child's best interests, without being bound by the child's directives or objectives.”

The distinction between these two lawyer roles is at the heart of the Standards: the Best Interests Attorney investigates and advocates the best interests of the child as a lawyer in the case, regardless of what the child says he or she wants. The Child's Attorney, however, represents the child as a client in the same way as an adult would be represented, and is guided by the child's wishes.

The court can appoint either a Child's Attorney or a Best Interests attorney, or both in a given case. However, the same lawyer cannot serve both roles. Neither kind of lawyer can be called as a witness. The Child's Attorney role contemplates a confidential relationship and carries with it the attorney-client privilege. The Child's Attorney, as the child's advocate, should abide by the client's decisions about the objectives of the representation regarding all issues on which the child is competent to direct the lawyer. Among the duties delineated by the Standards for the Child's Attorney: 1) Meet with the child upon appointment, before court hearings, when apprised of emergencies or significant events affecting the child, and at other times as needed; 2) Explain to the child, in a developmentally appropriate manner, what is expected to happen before, during, and after each hearing; 3) Advise the child and provide guidance, communicating in a way that maximizes the child's ability to direct the representation; 4) Discuss each substantive order, and its consequences with the child.

Ethical Considerations

The Child's Attorney is bound by state ethics rules in all matters

If the Child's Attorney believes that the child's directives will result in harm to him or her, the attorney can seek court-appointment of a Best Interests Attorney for the child. If a Child's Attorney is appointed to represent siblings, the lawyer should be vigilant to determine whether the siblings directives or priorities are in conflict, as sometimes occurs. If he or she is directly adverse, Model Rule of Professional Conduct 1.7(1)(1)(2002) prohibits representation. In such cases, the Standards require the Child's Attorney to withdraw or decline representation.

The lawyer for the child has dual fiduciary duties: 1) to ensure that the client is given enough information to make an informed decision, and 2) not to overbear the will of the child client. This may require the Child's Attorney to consult with the child's therapist or other experts to assist the lawyer in understanding the child's priorities, perspectives, and individual needs.

The Standards provide guidance for the Child's Attorney in circumstances where the child is unable to express a position, as with a pre-verbal child. In such situations, the Child's Attorney should represent the child's legal interests or request the appointment of a Best Interests Attorney. The Standards draw a distinction between the child's “legal interests” and “best interests.” “Legal interests” are interests of the child that are specifically recognized in law and that can be protected by a court. They may include a child's right to support and public financial benefits; parenting time rights of a child; the child's due process or other procedural rights; or the child's right to appropriate educational, medical, or mental health services.

What About Best Interests Attorneys?

While Best Interests Attorneys are also bound by state ethics rules in matters not dictated by the absence of the traditional attorney-client relationship because they need not always follow the child' directives, their role includes specific investigative duties. These include: 1) reviewing court files of the child and family members, including case records of social services agencies or other service providers; 2) reviewing mental health records, medical records, drug and alcohol-related records, school records, law enforcement records and others related to the case; 3) communicating with lawyers for the parties, the Child's Attorney, if there is one, and with non-lawyer representatives or court-appointed special advocates; 4) contacting and meeting with the parties, with permission of their lawyers; 5) interviewing individuals significantly involved with the child, including case workers, caretakers, neighbors, relatives, school personnel, coaches, clergy, mental health professionals, physicians, law enforcement officers, and other potential witnesses; 6) reviewing any relevant evidence personally rather than relying on other parties' or counsel's designations or characterizations of it; and 7) staying apprised of other court proceedings affecting the child, the parties and other household members. Competent investigative techniques include regular meetings with the children and all parties.

The Best Interests Attorney serves as both fact gatherers and finders of fact, to the extent that the lawyer's role requires obtaining and weighing evidence, reaching factual conclusions and applying best interests criteria contained in state statutes and case law to them. The Standards require the representation of the child's best interests to be based on objective criteria — not on the lawyer's personal philosophies, values, or experiences.

Training Lawyers for Children

The Standards contain specific criteria for training lawyers for children. Emphasis is put on custody and parenting time law, the impact of spousal or domestic violence on custody and parenting time; appropriate communication techniques with children, and child development training.

Conclusion

The ABA Standards of Practice for Lawyers Representing Children in Custody Cases offer clarity, uniformity, and predictability to the lawyer's role as the child's representative, whether as Child's Attorney or Best Interests Lawyer. They require that all lawyers have sufficient training, qualifications, compensation, time, and authority to act properly with the support and cooperation of courts and other institutions affecting children in custody cases. States that adopt these Standards will give children an opportunity to be heard independently in custody case.

All states have adopted laws providing for the mandatory or discretionary appointment of an attorney to represent children in custody cases. However, not all jurisdictions have established standards of practice for such attorneys. Representation of a child in such cases presents unique challenges to lawyer/client communication and interaction not encountered in the adult-representation setting.

At its Annual Meeting in August 2003, the House of Delegates of the American Bar Association adopted Standards of Practice for Lawyers Representing Children in Custody Cases (Standards). These standards are the result of a 10-year project undertaken by the ABA Section of Family Law, involving lawyers, judges and legal scholars. Adoption of the Standards establishes clear ABA policy for lawyers representing children in custody cases. In 1996, the ABA adopted similar Standards of Practice for representing a child in Abuse and Neglect Cases.

Highlights of the Standards

No More 'Guardian Ad Litem'

One of the difficulties facing the lawyer who represents a child in a custody case involves the proper perception of the lawyer's role. Is the lawyer an investigator? A protector? A surrogate decision-maker? Many states allow for the appointment of a “guardian ad litem” for a child. The guardian ad litem investigates and reports or testifies regarding the child's best interests in a given custody matter. Over time, the parameters of the guardian ad litem's duties have become blurred or expanded to include many functions (facilitator; parenting coordinator; evaluator; advocate; referee; arbitrator). In some states, the guardian ad litem need not be an attorney. Volunteer non-lawyers are often called upon to represent children in complex custody cases. As a result, the child faces the prospect of ineffective or ill-defined, “lawyer representation.”

The Standards do away with the term “guardian ad litem.” Instead, they create two distinct definitions of roles for a lawyer representing children in custody cases. A lawyer can be either a “Child's Attorney” or a “Best Interests Attorney.” Although there are certain duties common to both lawyer-roles in the Standards, the duties unique to each are also clearly set forth.

The “Child's Attorney” is defined as: “A lawyer who provides independent legal counsel for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.” The “Best Interests Attorney” is defined as: “A lawyer who provides independent legal services for the purpose of protecting a child's best interests, without being bound by the child's directives or objectives.”

The distinction between these two lawyer roles is at the heart of the Standards: the Best Interests Attorney investigates and advocates the best interests of the child as a lawyer in the case, regardless of what the child says he or she wants. The Child's Attorney, however, represents the child as a client in the same way as an adult would be represented, and is guided by the child's wishes.

The court can appoint either a Child's Attorney or a Best Interests attorney, or both in a given case. However, the same lawyer cannot serve both roles. Neither kind of lawyer can be called as a witness. The Child's Attorney role contemplates a confidential relationship and carries with it the attorney-client privilege. The Child's Attorney, as the child's advocate, should abide by the client's decisions about the objectives of the representation regarding all issues on which the child is competent to direct the lawyer. Among the duties delineated by the Standards for the Child's Attorney: 1) Meet with the child upon appointment, before court hearings, when apprised of emergencies or significant events affecting the child, and at other times as needed; 2) Explain to the child, in a developmentally appropriate manner, what is expected to happen before, during, and after each hearing; 3) Advise the child and provide guidance, communicating in a way that maximizes the child's ability to direct the representation; 4) Discuss each substantive order, and its consequences with the child.

Ethical Considerations

The Child's Attorney is bound by state ethics rules in all matters

If the Child's Attorney believes that the child's directives will result in harm to him or her, the attorney can seek court-appointment of a Best Interests Attorney for the child. If a Child's Attorney is appointed to represent siblings, the lawyer should be vigilant to determine whether the siblings directives or priorities are in conflict, as sometimes occurs. If he or she is directly adverse, Model Rule of Professional Conduct 1.7(1)(1)(2002) prohibits representation. In such cases, the Standards require the Child's Attorney to withdraw or decline representation.

The lawyer for the child has dual fiduciary duties: 1) to ensure that the client is given enough information to make an informed decision, and 2) not to overbear the will of the child client. This may require the Child's Attorney to consult with the child's therapist or other experts to assist the lawyer in understanding the child's priorities, perspectives, and individual needs.

The Standards provide guidance for the Child's Attorney in circumstances where the child is unable to express a position, as with a pre-verbal child. In such situations, the Child's Attorney should represent the child's legal interests or request the appointment of a Best Interests Attorney. The Standards draw a distinction between the child's “legal interests” and “best interests.” “Legal interests” are interests of the child that are specifically recognized in law and that can be protected by a court. They may include a child's right to support and public financial benefits; parenting time rights of a child; the child's due process or other procedural rights; or the child's right to appropriate educational, medical, or mental health services.

What About Best Interests Attorneys?

While Best Interests Attorneys are also bound by state ethics rules in matters not dictated by the absence of the traditional attorney-client relationship because they need not always follow the child' directives, their role includes specific investigative duties. These include: 1) reviewing court files of the child and family members, including case records of social services agencies or other service providers; 2) reviewing mental health records, medical records, drug and alcohol-related records, school records, law enforcement records and others related to the case; 3) communicating with lawyers for the parties, the Child's Attorney, if there is one, and with non-lawyer representatives or court-appointed special advocates; 4) contacting and meeting with the parties, with permission of their lawyers; 5) interviewing individuals significantly involved with the child, including case workers, caretakers, neighbors, relatives, school personnel, coaches, clergy, mental health professionals, physicians, law enforcement officers, and other potential witnesses; 6) reviewing any relevant evidence personally rather than relying on other parties' or counsel's designations or characterizations of it; and 7) staying apprised of other court proceedings affecting the child, the parties and other household members. Competent investigative techniques include regular meetings with the children and all parties.

The Best Interests Attorney serves as both fact gatherers and finders of fact, to the extent that the lawyer's role requires obtaining and weighing evidence, reaching factual conclusions and applying best interests criteria contained in state statutes and case law to them. The Standards require the representation of the child's best interests to be based on objective criteria — not on the lawyer's personal philosophies, values, or experiences.

Training Lawyers for Children

The Standards contain specific criteria for training lawyers for children. Emphasis is put on custody and parenting time law, the impact of spousal or domestic violence on custody and parenting time; appropriate communication techniques with children, and child development training.

Conclusion

The ABA Standards of Practice for Lawyers Representing Children in Custody Cases offer clarity, uniformity, and predictability to the lawyer's role as the child's representative, whether as Child's Attorney or Best Interests Lawyer. They require that all lawyers have sufficient training, qualifications, compensation, time, and authority to act properly with the support and cooperation of courts and other institutions affecting children in custody cases. States that adopt these Standards will give children an opportunity to be heard independently in custody case.