Standards of Practice for Lawyers Representing Children in Custody Cases
Standards of Practice for Lawyers Representing Children in Custody Cases
American Bar Association
Original Document: http://www.abanet.org/leadership/2003/summary/116b.pdf
1 AMERICAN BAR ASSOCIATION SECTION OF FAMILY LAW REPORT TO THE HOUSE OF DELEGATES RECOMMENDATION
RESOLVED, That the American Bar Association adopts the Standards of Practice for Lawyers Representing Children in Custody Cases, dated August 2003.
I. INTRODUCTION Children deserve to have custody proceedings conducted in the manner least harmful to them and most likely to provide judges with the facts needed to decide the case. By adopting these Standards, the American Bar Association sets a standard for good practice and consistency in the appointment and performance of lawyers for children in custody cases. Unfortunately, few jurisdictions have clear standards to tell courts and lawyers when or why a lawyer for a child should be appointed, or precisely what the appointee should do.
Too little has been done to make the public, litigants, domestic relations attorneys, the judiciary, or children’s lawyers themselves understand children’s lawyers’ roles, duties and powers. Children’s lawyers have had to struggle with the very real contradictions between their perceived roles as lawyer, protector, investigator, and surrogate decision maker. This confusion breeds dissatisfaction and undermines public confidence in the legal system.
These Standards distinguish two distinct types of lawyers for children: (1) The Child’s Attorney, who provides independent legal representation in a traditional attorney-client relationship, giving the child a strong voice in the proceedings; and (2) The Best Interests Attorney, who independently investigates, assesses and advocates the child’s best interests as a lawyer. While some courts in the past have appointed a lawyer, often called a guardian ad litem, to report or testify on the child’s best interests and/or related information, this is not a lawyer’s role under these Standards.
These Standards seek to keep the best interests of children at the center of courts’ attention, and to build public confidence in a just and fair court system that works to promote the best interests of children. These Standards promote quality control, professionalism, clarity, uniformity and predictability. They require that: (1) all participants in a case know the duties, powers and limitations of the appointed role; and (2) lawyers have sufficient training, qualifications, compensation, time, and authority to do their jobs properly with the support and cooperation of the courts and other institutions. The American Bar Association commends these Standards to all jurisdictions, and to individual lawyers, courts, and child representation programs.
II. SCOPE AND DEFINITIONS3 A. Scope These Standards apply to the appointment and performance of lawyers serving as advocates for children or their interests in any case where temporary or permanent legal custody, physical custody, parenting plans, parenting time, access, or visitation are adjudicated, including but not limited to divorce, parentage, domestic violence, contested adoptions, and contested private guardianship cases. Lawyers representing children in abuse and neglect cases should follow the ABA Standards of Practice for Representing a Child in Abuse and Neglect Cases (1996).
1. “Child’s Attorney“: 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.
2. “Best Interests Attorney“: 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.</DIR>
Commentary These Standards and these definitions apply to lawyers fitting these descriptions regardless of the different titles used in various states, and regardless of whether the lawyer is appointed by the court or retained by the child. A lawyer should be either a Child’s Attorney or a Best Interests Attorney. The duties common to both roles are found in Part III of these Standards. The unique duties of each are described separately in Parts IV and V. The essential distinction between the two lawyer roles is that the Best Interests Attorney investigates and advocates the best interests of the child as a lawyer in the litigation, while the Child’s Attorney is a lawyer who represents the child as a client. Neither kind of lawyer is a witness. Form should follow function in deciding which kind of lawyer to appoint. The role and duties of the lawyer should betailored to the reasons for the appointment and the needs of the child. These Standards do not use the term “Guardian Ad Litem.” The role of “guardian ad litem” has become too muddled through different usages in different states, with varying connotations. It is a venerable legal concept that has often been stretched beyond recognition to serve fundamentally new functions, such as parenting coordinator, referee, facilitator, arbitrator, evaluator, mediator and advocate. Asking one Guardian Ad Litem to perform several roles at once, to be all things to all people, is a messy, ineffective expedient. A court seeking expert or lay opinion testimony, written reports, or other non-traditional services should appoint an individual for that purpose, and make clear that that person is not serving as a lawyer, and is not a party. This person can be either a non- lawyer, or a lawyer who chooses to serve in a volunteer non-lawyer capacity.
III. DUTIES OF ALL LAWYERS FOR CHILDREN 4 In addition to their general ethical duties as lawyers, and the specific duties set out in Parts IV and V, Child’s Attorneys and Best Interests Attorneys also have the duties outlined in this section.
A. Accepting Appointment The lawyer should accept an appointment only with a full understanding of the issues and the functions to be performed. If the appointed lawyer considers parts of the appointment order confusing or incompatible with his or her ethical duties, the lawyer should (1) decline the appointment, or (2) inform the court of the conflict and ask the court to clarify or change the terms of the order, or (3) both.
B. Lawyer’s Roles A lawyer appointed as a Child’s Attorney or Best Interests Attorney should not play any other role in the case, and should not testify, file a report, or make recommendations.
Commentary Neither kind of lawyer should be a witness, which means that the lawyer should not be cross-examined, and more importantly should neither testify nor make a written or oral report or recommendation to the court, but instead should offer traditional evidence-based legal arguments such as other lawyers make. However, explaining what result a client wants, or proffering what one hopes to prove, is not testifying; those are things all lawyers do. If these Standards are properly applied, it will not be possible for courts to make a dual appointment, but there may be cases in which such an appointment was made before these Standards were adopted. The Child’s Attorney role involves a confidential relationship with privileged communications. Because the child has a right to confidentiality and advocacy of his or her position, the Child’s Attorney can never abandon this role while remaining involved in the case in any way. Once a lawyer has a lawyer- client relationship with a minor, he or she cannot and should not assume any other role for the child, especially as Best Interests Attorney or as a witness who investigates and makes a recommendation.
C. Independence The lawyer should be independent from the court and other participants in the litigation, and unprejudiced and uncompromised in his or her independent action. The lawyer has the right and the responsibility to exercise independent professional judgment in carrying out the duties assigned by the court, and to participate in the case as fully and freely as a lawyer for a party.
Commentary 5 The lawyer should not prejudge the case. A lawyer may receive payment from a court, a government entity, or even from a parent, relative, or other adult so long as the lawyer retains the full authority for independent action.
D. Initial Tasks Immediately after being appointed, the lawyer should review the file. The lawyer should inform other parties or counsel of the appointment, and that as counsel of record he or she should receive copies of pleadings and discovery exchanges, and reasonable notification of hearings and of major changes of circumstances affecting the child.
E. Meeting With the Child The lawyer should meet with the child, adapting all communications to the child’s age, level of education, cognitive development, cultural background and degree of language acquisition, using an interpreter if necessary. The lawyer should inform the child about the court system, the proceedings, and the lawyer’s responsibilities. The lawyer should elicit and assess the child’s views.
Commentary Establishing and maintaining a relationship with a child is the foundation of representation. Competent representation requires a child-centered approach and developmentally appropriate communication. All appointed lawyers should meet with the child and focus on the needs and circumstances of the individual child. Even nonverbal children can reveal much about their needs and interests through their behaviors and developmental levels. Meeting with the child also allows the lawyer to assess the child’s circumstances, often leading to a greater understanding of the case, which may lead to creative solutions in the child’s interest. The nature of the legal proceeding or issue should be explained to the child in a developmentally appropriate manner. The lawyer must speak clearly, precisely, and in terms the child can understand. A child may not understand legal terminology. Also, because of a particular child’s developmental limitations, the lawyer may not completely understand what the child says.
Therefore, the lawyer must learn how to ask developmentally appropriate, non- suggestive questions and how to interpret the child’s responses. The lawyer may work with social workers or other professionals to assess a child’s developmental abilities and tofacilitate communication. While the lawyer should always take the child’s point of view into account, caution should be used because the child’s stated views and desires may vary over time or may be the result of fear, intimidation and manipulation. Lawyers may need to collaborate with other professionals to gain a full understanding of the child’s needs and wishes.
F. Pretrial Responsibilities The lawyer should:6
1. Conduct thorough, continuing, and independent discovery and investigations.
2. Develop a theory and strategy of the case to implement at hearings, including presentation of factual and legal issues.
3. Stay apprised of other court proceedings affecting the child, the parties and other household members.
4. Attend meetings involving issues within the scope of the appointment. 5. Take any necessary and appropriate action to expedite the proceedings.
6. Participate in, and, when appropriate, initiate, negotiations and mediation. The lawyer should clarify, when necessary, that she or he is not acting as a mediator; and a lawyer who participates in a mediation should be bound by the confidentiality and privilege rules governing the mediation.
7. Participate in depositions, pretrial conferences, and hearings.
8. File or make petitions, motions, responses or objections when necessary.
9. Where appropriate and not prohibited by law, request authority from the court to pursue issues on behalf of the child, administratively or judicially, even if those issues do not specifically arise from the court appointment.
Commentary The lawyer should investigate the facts of the case to get a sense of the people involved and the real issues in the case, just as any other lawyer would. This is necessary even for a Child’s Attorney, whose ultimate task is to seek the client’s objectives. Best Interests Attorneys have additional investigation duties described in Standard V-E.
By attending relevant meetings, the lawyer can present the child’s perspective, gather information, and sometimes help negotiate a full or partial settlement. The lawyer may not need to attend if another person involved in the case, such as a social worker, can obtain information or present the child’s perspective, or when the meeting will not be materially relevant to any issues in the case. The lawyer is in a pivotal position in negotiations. The lawyer should attempt to resolve the case in the least adversarial manner possible, considering whether therapeutic intervention, parenting or co-parenting education, mediation, or other dispute resolution methods are appropriate. The lawyer may effectively assist negotiations of the parties and their lawyers by focusing on the needs of the child, including where appropriate the impact of domestic violence. Settlement frequently obtains at least short-term relief for all parties involved and is often the best way to resolve a case. The lawyer’s role is to advocate the child’s interests and point of view in the negotiation process.
If a party is legally represented,7 it is unethical for a lawyer to negotiate with the party directly without the consent of the party’s lawyer. Unless state law explicitly precludes filing pleadings, the lawyer should file any appropriate pleadings on behalf of the child, including responses to the pleadings of other parties, to ensure that appropriate issues are properly before the court and expedite the court’s consideration of issues important to the child’s interests.
Where available to litigants under state laws or court rules or by permission of the court, relief requested may include, but is not limited to: (1) A mental or physical examination of a party or the child; (2) A parenting, custody or visitation evaluation; (3) An increase, decrease, or termination of parenting time; (4) Services for the child or family; (5) Contempt for non- compliance with a court order; (6) A protective order concerning the child’s privileged communications;(7) Dismissal of petitions or motions.
The child’s interests may be served through proceedings not connected with the case in which the lawyer is participating. For example, issues to be addressed may include: (1) Child support; (2) Delinquency or status offender matters; (3) SSI and other public benefits access; (4) Mental health proceedings; (5) Visitation, access or parenting time with parents, siblings; or third parties, (6) Paternity; (7) Personal injury actions; (8) School/ education issues, especially for a child with disabilities; (9) Guardianship; (10) Termination of parental rights; (11) Adoption; or (12) A protective order concerning the child’s tangible or intangible property.
G. Hearings The lawyer should participate actively in all hearings and conferences with the court on issues within the scope of the appointment. Specifically, the lawyer should: 1. Introduce herself or himself to the court as the Child’s Attorney or Best Interests Attorney at the beginning of any hearing. 2. Make appropriate motions, including motions in limine and evidentiary objections, file briefs and preserve issues for appeal, as appropriate. 3. Present and cross-examine witnesses and offer exhibits as necessary. 4. If a child is to meet with the judge or testify, prepare the child, familiarizing the child with the places, people, procedures, and questioning that the child will be exposed to; and seek to minimize any harm to the child from the process. 5. Seek to ensure that questions to the child are phrased in a syntactically and linguistically appropriate manner and that testimony is presented in a manner that is admissible. 6. Where appropriate, introduce evidence and make arguments on the child’s competency to testify, or the reliability of the child’s testimony or out-of-court statements. The lawyer should be familiar with the current law and 8 empirical knowledge about children’s competency, memory, and suggestibility. 7. Make a closing argument, proposing specific findings of fact and conclusions of law. 8. Ensure that a written order is made, and that it conforms to the court’s oral rulings and statutorily required findings and notices.
Commentary Although the lawyer’s position may overlap with the position of one or more parties, the lawyer should be prepared to participate fully in any proceedings and not merely defer to the other parties. The lawyer should address the child’s interests, describe the issues from the child’s perspective, keep the case focused on the child’s needs, discuss the effect of various dispositions on the child, and, when appropriate, present creative alternative solutions to the court. A brief formal introduction should not be omitted, because in order to make an informed decision on the merits, the court must be mindful of the lawyer’s exact role, with its specific duties and constraints. Even though the appointment order states the nature of the appointment, judges should be reminded, at each hearing, which role the lawyer is playing. If there is a jury, a brief explanation of the role will be needed.
The lawyer’s preparation of the child should include attention to the child’s developmental needs and abilities. The lawyer should also prepare the child for the possibility that the judge may render a decision against the child’s wishes, explaining that such a result would not be the child’s fault. If the child does not wish to testify or would be harmed by testifying, the lawyer should seek a stipulation of the parties not to call the child as a witness, or seek a protective order from the court. The lawyer should seek to minimize the adverse consequences by seeking any appropriate accommodations permitted by law so that the child’s views are presented to the court in the manner least harmful to the child, such as having the testimony taken informally, in chambers, without the parents present. The lawyer should seek any necessary assistance from the court, including location of the testimony, determination of who will be present, and restrictions on the manner and phrasing of questions posed to the child. The child should be told beforehand whether in-chambers testimony will be shared with others, such as parents who might be excluded from chambers.
Questions to the child should be phrased consistently with the law and research regarding children’s testimony, memory, and suggestibility. The information a child gives is often misleading, especially if adults have not understood how to ask children developmentally appropriate questions and how to interpret their answers properly. The lawyer must become skilled at recognizing the child’s developmental limitations. It may be appropriate to present expert testimony on the issue, or have an expert present when a young child is directly involved in the litigation, to point out any developmentally inappropriate phrasing of questions.9 The competency issue may arise in the unusual circumstance of the child being called as a live witness, as well as when the child’s input is sought by other means such as in-chambers meetings, closed-circuit television testimony, etc.
Many jurisdictions have abolished presumptive ages of competency and replaced them with more flexible, case-by-case analyses. Competency to testify involves the abilities to perceive and relate. If necessary and appropriate, the lawyer should present expert testimony to establish competency or reliability or to rehabilitate any impeachment of the child on those bases.
H. Appeals 1. If appeals on behalf of the child are allowed by state law, and if it has been decided pursuant to Standard IV-D or V-G that such an appeal is necessary, the lawyer should take all steps necessary to perfect the appeal and seek appropriate temporary orders or extraordinary writs necessary to protect the interests of the child during the pendency of the appeal.
2. The lawyer should participate in any appeal filed by another party, concerning issues relevant to the child and within the scope of the appointment, unless discharged.
3. When the appeals court’s decision is received, the lawyer should explain it to the child.
Commentary The lawyer should take a position in any appeal filed by a party or agency. In some jurisdictions, the lawyer’s appointment does not include representation on appeal, but if the child’s interests are affected by the issues raised in the appeal, the lawyer should seek anappointment on appeal or seek appointment of appellate counsel. As with other court decisions, the lawyer should explain in terms the child can understand the nature and consequences of the appeals court’s decision, whether there are further appellate remedies, and what more, if anything, will be done in the trial court following the decision.
I. Enforcement The lawyer should monitor the implementation of the court’s orders and address any non-compliance.
J. End of Representation When the representation ends, the lawyer should inform the child in adevelopmentally appropriate manner. 10
IV. CHILD’S ATTORNEYS
A. Ethics and Confidentiality
1. Child’s Attorneys are bound by their states’ ethics rules in all matters.
2. A Child’s Attorney appointed to represent two or more children should remain alert to the possibility of a conflict that could require the lawyer to decline representation or withdraw from representing all of the children.
Commentary The child is an individual with independent views. To ensure that the child’s independent voice is heard, the Child’s Attorney should advocate the child’s articulated position, and owes traditional duties to the child as client, subject to Rules 1.2( a) and 1.14 of the ModelRules of Professional Conduct (2002). The Model Rules of Professional Conduct (2002) (which in their amended form may not yet have been adopted in a particular state) impose a broad duty of confidentiality concerning all “information relating to the representation of a client”, but they also modify the traditional exceptions to confidentiality.
Under Model Rule 1.6 (2002), a lawyer may reveal information without the client’s informed consent “to the extent the lawyer reasonably believes necessary