DRAFT

UNIFORM REPRESENTATION OF CHILDREN IN ABUSE AND NEGLECT AND CUSTODY ~~DISPUTES~~PROCEEDINGS ACT

SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Representation of Children in Abuse and Neglect and Custody ~~Disputes~~Proceedings Act.

SECTION 2. DEFINITIONS. In this [act]:

(1) “Abuse and neglect proceeding” means a court proceeding under [cite state statute] for protection of a child from abuse or neglect or a court proceeding under [cite state statute] in which termination of parental rights is at issue.

(2) “Best interests attorney” means an attorney appointed by the court to provide ~~independent~~ legal ~~services~~representation for a child to protect a child’s best interests without being bound by the child’s directives or objectives.

(3) “Child’s attorney” means an attorney appointed by the court to provide legal representation for a child.

(4) ~~“Court~~“Court-appointed advisor” means a ~~person~~n individual appointed to assist the court in determining the best interests of a child.

(5) “Custody proceeding” means a court proceeding in which legal or physical custody of ~~a child,~~, access to, or visitation or parenting time~~, access, or visitation~~ with a child is at issue, including a proceeding relating to divorce, separation, determination of parentage, adoption, private guardianship, ~~and~~or protection from domestic violence. The term does not include a proceeding initiated against a child because of the conduct of the child.

(6) “Developmental level” means the ability to understand and communicate, taking into account such factors as ~~the child’s~~ age, mental capacity, level of education, cultural background, and degree of language acquisition.

Comment

The definitions in the Act reflect the range of court-appointed representatives for children that are encompassed by the ABA Custody Standards: child’s attorney, best interests attorney, and guardian ad litem, except that the Act uses the new term ~~“court~~“court-appointed advisor” in order to avoid the widespread disagreement and confusion about the meaning of “guardian ad litem.” Under the Act, a “child’s attorney” is a client-directed lawyer in a traditional attorney-client relationship with the child, while a “best interests attorney” provides legal services to a child but is not bound by the child’s directives. A best interests attorney may only serve under the authority of a court appointment, while in some jurisdictions a privately retained attorney may function as the child’s attorney without a court appointment. This Act, however, governs only court-appointed representatives for children.

The ~~“court~~“court-appointed advisor” assists the court in determining the best interests of a child and will therefore perform many of the functions formerly attributable to guardians ad litem, but the Act makes clear that ~~court~~court-appointed advisors are not to function as attorneys. Instead, a ~~court~~court-appointed advisor will independently investigate the child’s circumstances and may sometimes testify in the case about the child’s best interests. See Section 14. Similarly, because the role of attorney, whether child’s attorney or best interests attorney, is functionally and ethically inconsistent with that of a guardian ad litem, the Act does not endorse the ~~dual~~hybrid role of attorney/guardian ad litem employed in numerous states.

As a condition of receiving federal child welfare funding, states must appoint a “guardian ad litem” in every judicial proceeding involving an abused or neglected child. See Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii) (2000). The federal Act does not define the role of the guardian ad litem beyond stating that the guardian, who may be an attorney or court appointed special advocate, shall “(I) obtain first-hand, a clear understanding of the situation and needs of the child; and (II) make recommendations to the court concerning the best interests of the child.” Id. The“Best interests attorney” is a term of art that was introduced by the ABA in developing the Custody Standards and signifies a representative who advocates the child’s interests rather than the child’s expressed goals. In many respects, however, the best interests attorney by definition should satisfy CAPTA’s requirement, since that attorney’s role is to provide legal services to protect a child’s best interests. A child’s attorney may also satisfy CAPTA, depending on a state’s interpretation of federal law. Even a child-directed lawyer functioning in the role of a child’s attorney will ultimately facilitate the court’s resolution in the child’s best interests, andperforms the same duties of representation that are performed by the child’s attorney may, in situations justifying substituted judgment under Section 12, advocate a position the lawyer believes is in the child’s interests. Also, the attorney must take remedial action if the child’s objectives will subject the child to a risk of serious harm. See Section 12.

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~~Section 5 addresses the potential impact of the CAPTA requirement~~. See Section 11.

The Act applies to all court-appointed attorneys and court-appointed advisors for children in abuse and neglect ~~proceedings for the appointment of court advisors~~and custody proceedings. In states where privately-retained counsel may represent children without a formal appointment, this Act’s applicability to those lawyers should be determined under local law. In any event, a lawyer who is initially privately retained may thereafter seek an appointment. Once such a formal appointment occurs, the Act clearly applies. It should be noted that a representative may be court-appointed without receiving compensation from the court or other government sources.

Under the definitions of this Act, abuse and neglect proceedings include child protection proceedings ordinarily brought in juvenile court, such as dependency actions and foster care placements, as well as actions to terminate parental rights. A custody proceeding, in contrast, includes private custody disputes, adoptions, private guardianships, and other proceedings in which the child’s legal or physical custody is at issue. This Act does not apply to proceedings initiated by the state because of the child’s conduct, such as proceedings brought to adjudicate the child as delinquent or proceedings charging the child with status offenses.

In some circumstances, credible and serious allegations of abuse or neglect will surface in a custody proceeding. If the court determines that the case should go forward as an abuse and neglect proceeding (generally entailing a transfer to juvenile court), then this Act’s terms regarding abuse and neglect ~~proceedings – including~~proceedings–including, in particular, the mandatory appointment of counsel for the ~~child – will~~child–will govern. In some states a custody case can be referred to juvenile court for investigative purposes. Such a referral would not transform the proceeding into an abuse and neglect proceeding ~~until~~unless a dependency petition is filed.

SECTION 3. ~~APPLICATION~~RELATIONSHIP TO OTHER LAW.

~~(a)~~ This [act] does not ~~apply to a child’s privately retained attorney or other representative who has not been appointed by the court in the abuse and neglect or custody proceeding.~~

~~(b) This [act] does not diminish~~affect children’s rights~~, standing, or party status~~ under law other than this [act].

~~(c) Neither the child nor the child’s representative, whether or not appointed by court, may waive the child’s right to representation under this [act].~~

~~Comment~~

The Act does not govern privately-retained counsel for children since in some jurisdictions a child or parent remains free to independently hire a lawyer to represent the child. While it is hoped that privately-retained counsel will adhere voluntarily to the standards in the Act, the Act by its own force applies only to court-appointed lawyers and court advisors. Nevertheless, a lawyer who is initially privately retained may thereafter seek an appointment. Once such a formal appointment occurs, the Act applies. Similarly, if a child in an abuse and neglect or custody proceeding already has a lay representative through appointment from another court, that representative is not bound by this Act until he or she is appointed for purposes of the instant proceeding. It should be noted that a representative may be court-appointed without receiving compensation from the court or other government sources.

~~The~~ or create party status or standing not provided under law other than this [act].

Comment

This Act is not intended to ~~diminish~~affect children’s rights recognized under other federal or state laws. For example, the Indian Child Welfare Act authorizes courts to appoint counsel for Indian children in proceedings governed by the ICWA when such appointment is in the best interests of the child. See 25 U.S.C. § 1912(b) (2000). While the ICWA gives courts discretion to appoint counsel in Indian child welfare proceedings, this Act would supplement that provision by requiring appointment of counsel as a matter of state law in all abuse and neglect proceedings. At the same time, the ICWA provides jurisdictional rules and placement preferences for the foster and adoptive placement of Indian children. See 25 U.S.C. §§ 1911-1915. The federal statutory standards would necessarily govern the attorney’s representation of an Indian child under the ICWA.

Similarly, this Act does not diminish state laws that afford children standing or the right to broader participation in abuse and neglect or custody cases than provided under the Act. The Act establishes guidelines for the appointment of representatives for children, without regard to a state’s position on whether the child should be recognized as a separate party to a custody proceeding. State laws regarding the standing of third parties to initiate custody actions are also not affected by this Act.

~~Likewise, state~~state or federal laws. State law may impose specialized rules for particular proceedings, such as guardianships or adoptions. In many states, for example, a child of a certain age has a statutory right to veto a proposed adoption. See, e.g., Ariz. Rev. Stat. § 8-106 (2004) (consent of child twelve years of age or older required for adoption); West’s Ann. Cal. Fam. Code § 8602 (2004) (same). Several states provide a right to counsel for children in contested adoption proceedings. See, e.g., Okla. Stat. Ann. § 7505-1.2 (2004). Where such specialized rules are in effect, they control the more general provisions of this Act.

Similarly, this Act does not affect state laws that afford children standing or the right to broader participation in abuse and neglect or custody cases than provided under the Act. The Act establishes guidelines for the appointment of representatives for children, without regard to a state’s position on whether the child should be recognized as a separate party to the proceeding. State laws regarding the standing of third parties to initiate abuse and neglect or custody actions also are not affected by this Act. Conversely, the Act does not provide standing where it does not otherwise exist under state law.

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State law varies on children’s procedural status in abuse and neglect and custody proceedings. In several states, children are viewed as parties to abuse and neglect proceedings and have the right to participate through their representatives in all stages of the proceedings. See, e.g., Minn. Stat. Ann § 260C.163(2) (child who is subject to petition for protection has right to participate in all proceedings); In re Williams, 805 N.E.2d 1110 (Ohio 2004)(child is party to parental rights termination action and has right to legal counsel). In ~~a few~~other states, children are non-parties whose rights of participation are more limited. In re R.S., 647 N.Y. Supp. 2d 361 (NY Fam. Ct. 1996)(child is not party to child protective proceeding and therefore cannot be deposed as party); In re Anthony, 675 N.Y. supp. 2d 759 (NY Fam. Ct. 1998)(child is not party to termination of parental rights proceeding and therefore cannot seek relief from judgment). In child custody disputes, children typically are not viewed as parties and are not permitted to become parties through intervention. See, e.g., Auclair v. Auclair, 730 A.2d 1260 (Md. App. 1999); J.A.R. v. Superior Court, 877 P.2d 1323 (Ariz. App. 1994); In re Marriage of Hartley, 886 P.2d 665 (Col. 1994). IOn the other hand, in a ~~few states, however~~t least one state, a child who is the subject of a custody dispute is viewed as an indispensable party to the proceeding. See, e.g., In re J.W.F. v. Schoolcraft, 763 P.2d 1217 (Utah App. 1988). ~~The bracketed phrases in subsection (a) permit states to select~~ At the ~~option that best comports with the state’s view~~same time, even where children are not viewed as parties they often have many of the ~~child’s~~ rights of participation. Similarly, in those states where there is full participation by children’s attorneys in alternative forms of dispute resolution, the bracketed phrase under subsection (9) should be omittedparties as a practical matter.

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In addition, this Act may supplement rights already provided by federal law. As a condition of receiving federal child welfare funding, for example, states must appoint a “guardian ad litem” in every judicial proceeding involving an abused or neglected child. See Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii) (2000). The federal Act does not define the role of the guardian ad litem beyond stating that the guardian, who may be an attorney or court appointed special advocate, shall “(I) obtain first-hand, a clear understanding of the situation and needs of the child; and (II) make recommendations to the court concerning the best interests of the child.” Id. This Act goes further by requiring the appointment of either a child’s attorney or a best interests attorney for every child involved in an abuse and neglect proceeding. Similarly, the Indian Child Welfare Act authorizes courts to appoint counsel for Indian children in proceedings governed by the ICWA when such appointment is in the best interests of the child. See 25 U.S.C. § 1912(b) (2000). While the ICWA gives courts discretion to appoint counsel in Indian child welfare proceedings, this Act requires appointment of a child’s attorney or best interests attorney if an Indian child is the subject of an abuse and neglect proceeding in state court.

SECTION 4. MANDATORY APPOINTMENT OF CHILD’S ATTORNEY OR BEST INTERESTS ATTORNEY IN ABUSE AND NEGLECT PROCEEDING.

(a) ~~[Subject to Section 12(e), in][~~In] an abuse and neglect proceeding, the court shall appoint either a child’s attorney or a best interests attorney. The appointment must be made as soon as practicable to ensure adequate representation of the child and in any event before the first court hearing that substantially affects the interests of the child. If the court does not designate the role of the attorney in the initial appointment, the court shall do so by order of appointment no later than the first hearing, based on information provided by the appointed attorney and any other source available to the court.

~~(b) In determining whether to appoint a~~

(b) The court shall appoint a [child’s attorney ~~or a~~ ] [best interests attorney~~, the court shall consider~~] unless the child’s circumstances and the court’s needs for information and assistance in the particular proceeding make the appointment of a [best interests attorney] [child’s attorney] appropriate. The court shall consider such factors as the child’s age and developmental level, any desire for an attorney expressed by the child, whether the child has expressed objectives in the proceeding, and the value of an independent advocate for the child’s best interests.

(c) The court may appoint one attorney to represent siblings if there is no conflict of interest, even if the attorney serves in different capacities with respect to two or more siblings. If a conflict arises, the attorney shall take any action required by [this state’s rules of professional conduct].

(d) Neither the child nor the child’s representative, whether or not appointed by the court, may waive representation of the child under this Section or Section 5.

LEGISLATIVE NOTE: States that do not wish to mandate the appointment of a child’s attorney or best interests attorney in every abuse and neglect proceeding may revise Section 4 to add “court-appointed advisor” to the appointment alternatives under subsection (a). So revised, the section would require the appointment of a representative for the child in all abuse and neglect proceedings but would leave the choice of representative to the discretion of the court. Conforming amendments to the remainder of Section 4 and to Section 5 would be necessary.

Comment

This section requires the appointment of an attorney for every child who is the subject of an abuse and neglect proceeding because of the fundamental importance of the interests at stake. Although the nature of the attorney’s role may vary from case to case, the child’s right to legal representation is a function of basic procedural justice. Under subsection (d), that right is not subject to waiver by the child or anyone acting on behalf of the child.

The Act leaves the choice between a best interests attorney or a child’s attorney to legislative direction as well as judicial discretion. It should be noted that a custody proceeding may become an abuse and neglect proceeding because of substantial allegations of abuse or neglect, as explained in the Comment to Section 2. In that event, this section’s mandatory appointment of counsel for the child would apply.

~~The nature of the~~The presumptive nature of the initial appointment – whether child’s attorney or best interests attorney – ~~should reflect the court’s~~will be a policy choice for the state legislature. Because of the practical difficulty of providing an individualized ~~assessment~~determination of the role of the attorney at the outset of every abuse and neglect proceeding, the bracketed categories in subsection (b) provide courts with a presumptive starting point. Nevertheless, courts sometimes will possess sufficient information to determine that the presumptive role is inappropriate for a particular child. In that event, the court may designate a different role for the attorney in light of the child’s ~~interests and developmental level~~circumstances and the court’s needs ~~in the particular proceeding~~. Ordinarily, a child’s attorney ~~should~~would be ~~appointed~~appropriate for aan older child capable of exercising considered judgment and directing a lawyer, while a best interests attorney would be appropriate for a preverbal or very young child incapable of expressing a considered choice about issues that are relevant to the proceeding. TIn determining whether a child is capable of considered judgment, the court should focus on the child’s decision-making process rather than the child’s choices themselves. The ~~selection of the type of attorney, however, depends on the reasons for the appointment and the needs of the child and is not simply a function of the child’s chronological age. The court should~~ court’s determination should be informed by insights drawn from the abundant literature on children’s psychological, cognitive, and emotional development. Section 9(c) addresses the authority of a

court to change the nature of an attorney’s appointment from best interests attorney to child’s attorney based on new information not available at the time of the original appointment.

This section permits the appointment of a single lawyer for two or more siblings, even if that lawyer is acting as child’s attorney for one sibling and best interests attorney for another. A lawyer for multiple siblings may have a better understanding of the children’s family context than would a lawyer for only one sibling. Thus, the presence of a potential conflict of interest should not preclude the representation of multiple siblings. On the other hand, if an actual conflict of interest arises, common representation would be inappropriate. If the representation of one child is materially limited by the lawyer’s responsibilities to another child (where, for example, one child seeks to establish parental unfitness and another opposes the production of such evidence), the attorney must take remedial steps and may be forced to withdraw from some or all representation. See Rule 1.7, ABA Model Rules of Professional Conduct (2002). Key concerns are whether pursuing one client’s objectives will prevent the lawyer from pursuing another client’s objectives, and whether confidentiality will be compromised. See Jennifer L. Renne, Legal Ethics in Child Welfare Cases 47-60 (ABA 2004).

Ideally, a child will have the same lawyer throughout the pendency of the abuse and neglect proceeding. Continuity in representation is particularly important in building trust in the child, and the lawyer’s representation will be more informed if the same lawyer has been on the case from its inception. Nevertheless, a lawyer appointed to represent a child in an abuse and neglect proceeding may need to withdraw from representation due to conflicts or other reasons. If the court grants permission to withdraw, the court should appoint a new lawyer as soon as feasible to continue the representation.

It should be noted that a custody proceeding may become an abuse and neglect proceeding because of substantial allegations of abuse or neglect, as explained in the Comment to Section 2. In that event, this section’s mandatory appointment of counsel for the child would apply.

SECTION 5. APPOINTMENT OF ~~COURT~~COURT-APPOINTED ADVISOR IN ABUSE AND NEGLECT PROCEEDING.

~~ALTERNATIVE~~ Alternative A

(a) In an abuse and neglect proceeding:

(1) if the court ~~does not appoint~~appoints a child’s attorney rather than a best interests attorney pursuant to Section 4, the court shall appoint a ~~court~~court-appointed advisor before the first court hearing that substantially affects the interests of the child; or

(2) if the court appoints a best interests attorney, the court may appoint a ~~court~~court-appointed advisor if the court determines that a ~~court~~court-appointed advisor is necessary to assist the court in determining the best interests of the child.

Alternative B

(a) In an abuse and neglect proceeding, whether the attorney appointed pursuant to Section 4 is a child’s attorney or a best interests attorney, the court may appoint a court-appointed advisor if the court determines that a court-appointed advisor is necessary to assist the court in determining the child’s best interests.

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(b) In determining whether a ~~court~~court-appointed advisor is necessary under subsection [(a)(2)] [(a)], the court shall consider such factors as the court’s need for information regarding the child’s circumstances, the value of a ~~court~~court-appointed advisor’s expertise, and any request by the best interests attorney for the appointment of a ~~court~~court-appointed advisor.

(c) The court shall make an appointment under subsection [(a)(2)] [(a)] as soon as practicable. ~~An appointment under subsection (a)(1) must be made before the first court hearing that substantially affects the interests of the child.~~

~~ALTERNATIVE B~~

Whether the attorney appointed pursuant to Section 4 is a child’s attorney or a best interests attorney, the court may appoint a court advisor if the court determines that a court advisor is necessary to assist the court in determining the child’s best interests. In determining whether to make an appointment, the court shall consider such factors as the court’s need for information regarding the child’s circumstances, the value of a court advisor’s expertise, and any request by the child’s attorney or the best interests attorney for the appointment of a court advisor.

Comment

This section ~~is consistent with requirements of current federal law regarding~~permits states to decide whether to require a court-appointed advisor under certain circumstances. Because some states may want to ensure that a best interests advocate will always be participating in the proceeding, Alternative A requires a court-appointed advisor whenever the court has not appointed a best interests lawyer for the child. Alternative B, in contrast, treats the appointment of ~~guardians ad litem~~a court-appointed advisor as a matter of judicial discretion to be determined on a case-by-case basis.

The options within this section may also have implications for a state’s compliance with federal law. As a condition of receiving federal child welfare funding, states must appoint a ~~guardian~~“guardian ad litem” in every judicial proceeding involving an abused or neglected child. Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii) (2000). See Comment to Section 23. While some states view either a best interests attorney or a child’s attorney ~~may satisfy~~as fulfilling CAPTA’s guardian ad litem requirement, ~~this section gives~~other states ~~the option of interpreting~~may interpret CAPTA more narrowly. For those states that ~~read~~interpret CAPTA to always mandate a best interests advocate, Alternative A requires ~~that~~ a ~~court advisor be appointed~~court-appointed advisor unless the ~~child~~court has already appointed a best interests attorney. ~~Thus, if a best interests attorney has not been appointed, Alternative A of this section directs the court to appoint a court advisor.~~

Alternative B, on the other hand, would be appropriate for those states that ~~read~~view CAPTA’s requirement ~~to be~~as fully satisfied by the appointment of either a child’s attorney or a best interests attorney.

The best interests attorney by definition should satisfy CAPTA’s requirement, since that attorney’s role is to provide legal services to protect a child’s best interests. A child’s attorney may also satisfy CAPTA, depending on a state’s interpretation of federal law. Even a ~~client-directed~~child-directed lawyer functioning in the role of a child’s attorney will ultimately facilitate the court’s resolution in the child’s best interests. Also, the child’s attorney may, in situations justifying substituted judgment under Section 12, advocate a position the lawyer believes is in the child’s interests. Moreover, the attorney must take remedial action if the child’s objectives will subject the child to a risk of substantial harm. See Section 12. For ~~that~~these reasons, under ~~Alternative B~~the second bracketed option, the appointment of a ~~court~~court-appointed advisor is discretionary when either a child’s attorney or a best interests attorney has been appointed in an abuse and neglect proceeding. ~~For~~In support of this more flexible interpretation of the CAPTA guardian ad litem requirement, see U.S. Department of HHS Children’s Bureau, Adoption 2002: The President’s Initiative on Adoption and Permanence for Children, Commentary to Guideline 15A.

SECTION 6. DISCRETIONARY APPOINTMENT IN CUSTODY PROCEEDING.

(a) ~~[Subject to Section 12(e), in] [~~In] a custody proceeding, the court sua sponte or on motion may appoint either a child’s attorney or a best interests attorney. Whether or not the court appoints an attorney, the court may appoint a ~~court~~court-appointed advisor. An appointment may be made at any stage of the proceeding and must designate the role of the appointee.

(b) ~~Subject to subsection (c), the court shall make an appointment under this section if it determines that~~In determining whether an appointment is appropriate ~~in light of the nature and adequacy of the evidence to be presented by the parties, the court’s need for additional information relevant to the best interests of the child,~~ and, if so, which category of representative should be appointed, the court shall consider the child’s developmental level; any desire for a representative expressed by the child and whether the child has expressed objectives in the proceeding; the value of an independent advocate for the child’s best interests; the need to minimize harm to the child from the processes of family separation and litigation; , the ~~cost to~~nature and adequacy of the evidence presented by the parties and ~~their ability to pay,~~the court’s need for additional information; and the financial burden on the parties and the cost of available alternatives for resolving the issues in the proceeding.

~~(c)~~ ~~In determining whether~~The court may consider any other factor showing a particularized need for an appointment ~~is appropriate, the court shall consider:~~

~~(1) any views or concerns expressed by the child, including any request by the child for appointment of a representative;~~

~~(2) the likelihood that the child will be called as a witness or be examined by the court in chambers;~~

~~(3) any need for extraordinary remedies, such as supervised visitation;~~

(4, including:

(1) the presence of a high level of acrimony between the parties or a party and the child;

~~(5) the likelihood of relocation that could substantially reduce the child’s time with a parent or sibling;~~

~~(6) any past or present substance abuse by the child, a party, or a household member;~~

~~(7) any dispute as to paternity;~~

(82) any interference, or threatened interference, with custody or parenting time, including abduction of the child or risk of abduction;

~~(9) any past or present domestic violence;~~

~~(10) any past or present physical, sexual, or emotional abuse of the child or neglect of the child;~~

~~(11) any special physical, educational, or mental health needs of the child that require investigation or advocacy;~~

(123) any inappropriate adult influence on or manipulation of the child;

[and]

[(13) a(4) any need for extraordinary remedies, such as supervised visitation;

(5) the likelihood of relocation that could substantially reduce the child’s time with a parent or sibling;

(6) the likelihood that the child will be called as a witness or be examined by the court in chambers;

(7) any past or present substance abuse by the child, a party, or a household member;

(8) any special physical, educational, or mental health needs of the child that require investigation or advocacy;

(9) any dispute as to paternity;

(10) any past or present domestic violence involving the child, a party, or a household member; and

(11) credible allegations of past or present abuse or neglect of the child [or referral of the proceeding to the juvenile court for investigation of allegations of abuse or neglect~~; and]~~

~~(14) any other factor relevant to the child’s best interests.~~

(d) If the court decides to make an appointment under this section, the court shall consider the child’s circumstances and the court’s needs in the particular proceeding in determining whether to appoint a child’s attorney, best interests attorney, or court advisor. The court shall consider such factors as the child’s developmental level, the value of an independent advocate for the child’s best interests, any desire for an attorney expressed by the child, the child’s special needs, the legal complexity of any disputed issue affecting the child, and the benefit to the court of an appointee’s special expertise.].

Comment

This section leaves the appointment of an attorney or ~~court~~court-appointed advisor for children in custody cases to judicial discretion, but courts should recognize the significant benefit in having a representative for a child in certain situations. If a court anticipates that the evidentiary presentation by the parties will be incomplete, distorted, or otherwise inadequate, the appointment of a representative for the child can be particularly helpful. The factors listed in subsection (c) may raise special concerns warranting the appointment of a representative for the child and should guide the court’s discretion. In some circumstances, such as where there are credible allegations of domestic violence or child abuse, the appointment of a separate representative for the child may be essential for the court’s determination of the evidentiary issues in the case. Similarly, in custody proceedings where parentage is at issue, the appointment of counsel for the child may be extremely helpful to the court.

Moreover, one of the key values of a child’s representative is to advocate for evidentiary procedures and methods of dispute resolution that are the least harmful to the child. A child’s representative, for example, can assist the court in deciding whether to interview a child in chambers or to involve the child as a participant in mediation between the parents. The goal of child representation is not only to help the court arrive at an outcome that best serves the child’s interests but also to protect children from collateral damage from litigation.

At the same time, courts must recognize that the appointment of a lawyer or court advisor for the child in a custody case may be unnecessary and might introduce a potentially intrusive and expensive advocate. The court should take into account the cost of an appointment and the parties’ ability to pay, since public funds for children’s representatives in custody proceedings are rarely available. Section 20 provides guidelines for assessing fees against the parties for children’s representatives in custody proceedings.

~~In deciding~~

The first paragraph of subsection (b) identifies general considerations that courts should consider in determining whether to appoint a ~~child’s attorney, best interests attorney, or court advisor, the court should consider the child’s interests~~representative and, if a representative is necessary, to decide on the category of representative. The child’s circumstances, including his or her developmental level, and the court’s needs in the custody determination should inform the court’s decision. The numbered items under subsection (b) are factors that may raise special concerns warranting the appointment of a representative for the child in a particular proceeding~~. Subsection (e) recognizes that the~~ and should guide the court’s discretion. In some circumstances, such as where there are credible allegations of domestic violence, child abuse, or substance abuse, the appointment of a separate representative for the child may be essential for the court’s determination of the evidentiary issues in the case. Similarly, in custody proceedings where parentage is at issue or where extraordinary remedies are in dispute, the appointment of counsel for the child may be extremely helpful to the court.

The decision to appoint a particular category of representative will depend in large part on the child’s developmental level and the court’s sense of how the child’s interests can best be protected. In some cases, a mental health professional as ~~court~~court-appointed advisor may be particularly helpful, while in other cases involving older children with defined views, a child’s attorney may be appropriate.

~~SECTION 7. CONTINUED REPRESENTATION.~~

~~(a) In an abuse and neglect proceeding, unless otherwise provided by court order, an appointment of a child’s attorney,~~ On the other hand, a preverbal child in the middle of a bitter and protracted custody dispute may need representation through a best interests attorney~~, or court advisor continues in effect until the proceeding is concluded.~~

~~(b) In a~~.

At the same time, courts must recognize that the appointment of a lawyer or court-appointed advisor for the child in a custody case may be unnecessary and might introduce a potentially intrusive and expensive advocate. This section directs courts to consider the financial burden on parties and the availability of alternative methods of dispute resolution. Section 20 provides guidelines for assessing fees against the parties for children’s representatives in custody ~~proceeding, an~~proceedings. Nevertheless, a court’s decision whether or not to appoint a representative for a child should not depend solely on the parties’ ability to pay. Many family courts have access to low cost or pro bono programs for children’s representatives. Ideally, state court systems will set aside funds for the appointment of ~~a child’s attorney, best interests attorney, or court advisor continues in effect only for the term provided in the order of appointment or any subsequent order.~~

children’s

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~~Under~~representatives in this important realm.

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SECTION 97. QUALIFICATIONS OF CHILD’S ATTORNEY OR BEST INTERESTS ATTORNEY. The court may appoint as a child’s attorney or best interests attorney only an individual who is qualified through training or experience in the type of proceeding in which the appointment is made, according to standards established by [federal law,] law of this state other than this [act][,] or judicial or other rule.

Comment

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~~section, the appointment~~

All court-appointed attorneys for children, whether in the role of ~~a representative in an~~child’s attorney or best interests attorney, must have adequate training or experience to discharge their duties with competence. States are encouraged to adopt state-wide standards of practice for all children’s attorneys through court rule or rule promulgated by the state bar or other regulatory agency. Such standards of practice should include a description of required training in applicable statutory codes, case law and court procedures, including state law relevant to divorce, child custody, child support, adoption, paternity, child welfare, and other regulations of family life. Lawyers representing children should also be familiar with federal law pertaining to family regulation, such as the Child Abuse Prevention and Treatment Act, the Adoption and Safe Families Act, the Family Educational Rights and Privacy Act, and the Indian Child Welfare Act. In addition, children’s lawyers should have knowledge of child development and child psychology, the dynamics of child abuse and neglect proceeding presumptively lasts until the proceeding is concluded. Although the court can provide otherwise, the appointment ordinarily will continue until the child is no longer under state protection. For example, if a child’s dependency is dismissed and the child’s case is closed, the proceeding can be deemed concluded. On the other hand, a child in long-term foster care may not have an active case file but the proceeding would not be “concluded” within the meaning of this section. Indeed, in the latter situation,, the impact of domestic violence, the impact of separation and long-term consequences to a child of being in temporary care, and the central role of culture and ethnicity in family relations. They should be trained in communicating with children and should understand the impact of culture on styles of communication. Moreover, children’s attorneys and best interests attorneys should become familiar with the ABA Abuse and Neglect Standards, the suggested amendments to those standards adopted by the National Association of Counsel for Children, and the ABA Custody Standards. Finally, the training of children’s lawyers should be conducted on an ongoing basis. Mandatory periodic training requirements exist in many states to ensure that children’s counsel continue to meet standards of competence over time.

Before making an appointment, courts should be satisfied that the attorney possesses the relevant qualifications established by law or rule. Under Section 9, courts may designate child advocacy organizations or governmental programs in the initial order of appointment when those entities have ensured that their attorney members have appropriate training and experience. Although such programs may be designated in the initial order of appointment on a temporary basis, the program should identify the particular individual who will be the child’s representative ~~can play an essential role in ensuring that periodic assessments of the child’s placement and services occur as required by law.~~

The right of a child’s attorney, best interests attorney, or court advisor to participate in any appeal or to bring an appeal on behalf of the child is determined by state law. State law varies on the question of standing to file an appeal or participate on appeal, just as it varies on whether children have formal party status in abuse and neglect and custody proceedings. In states where the child through a representative can participate fully on appeal, the representation of the child extends to any appellate proceeding. To the extent feasible, courts should ensure continuity of counsel on appeal. Theas soon as feasible.

In making an appointment under this Act, the court should ensure that the attorney’s caseload is not so burdensome as to undermine his or her ability to competently serve as the child’s representative should take actions that are consistent with the representative’s role, taking into consideration the potential impact on the child, the child’s expressed objectives, the likelihood of success on appeal, and the available resources for prosecuting the appeal.

~~SECTION 8. ORDER OF APPOINTMENT.~~

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and to fulfill the duties identified in Sections 11-13. See ABA Abuse and Neglect Standards L-1 (providing duty of trial courts to control size of court-appointed caseloads). For effective representation, a lawyer must be able to engage in certain essential tasks, including meeting with his or her client, interviewing relevant witnesses, conducting investigation and discovery, and reviewing records pertaining to the child. The National Association of Counsel for Children has recommended that a child’s lawyer represent no more than 100 clients at a time. See Testimony of Marvin Ventrell, NACC Executive Director, Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005).

SECTION 8. QUALIFICATIONS OF COURT-APPOINTED ADVISOR .

(a) The court may appoint as court-appointed advisor for a child only an individual who is qualified through training or experience in the type of proceeding in which the

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appointment is made, according to standards established by [federal law,] law of this state other than this [act][,] or judicial or other rule.

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(b) The court may appoint an attorney to serve as ~~court~~court-appointed advisor for a child if the attorney meets the qualifications in subsection (a) and is specifically appointed to serve solely in the role of ~~court~~court-appointed advisor. An attorney appointed as ~~court~~court-appointed advisor may take only those actions that may be taken by a ~~court~~court-appointed advisor who is not an attorney.

(c) The appointment of a ~~court~~court-appointed advisor does not create a professional relationship between the advisor and the child unless such a relationship is expressly established in the order of appointment.

Comment

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In appointing a court-appointed advisor for a child, the court must ensure that the individual is qualified based on training, ability, and experience in child advocacy. As with the training for attorneys for children, the court-appointed advisor training should be required on an ongoing basis. Court-appointed advisors should have knowledge of child development and child psychology, the dynamics of child abuse and neglect, the impact of domestic violence, the impact of separation and the long-term consequences to a child of being in temporary care, and treatment and rehabilitation systems. They should be trained in communication with children and should understand the role of cultural identity in personality formation, family life, and social interaction. Court-appointed advisors should also be familiar with applicable state and federal law.

As a practical matter, many courts rely on private or governmental programs for lists of volunteer advocates, such as the Court Appointed Special Advocates (CASA), or a specific volunteer list maintained by the court pursuant to other provisions of state law. Although such programs may be designated in the initial order of appointment on a temporary basis pursuant to Section 9, the program should identify the particular individual who will be the child’s representative as soon as feasible.

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This section makes clear that if the court appoints an attorney to function as ~~court~~court-appointed advisor, that person is not to function as an attorney in the proceeding. CAPTA expressly provides that the guardian ad litem may be an attorney or a court-appointed special advocate, or both. See Comment to Section 5. Although federal law may permit an attorney guardian ad litem to serve as an attorney, under this Act an attorney appointed as ~~court~~court-appointed advisor is not appointed to serve as an attorney and should function only as a non-lawyer.

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Social workers, counselors, and therapists are often appointed as guardians ad litem for children because of their valuable expertise in mental health, child development, and family dynamics. This section makes clear that the appointment of a ~~court~~court-appointed advisor does not in itself create a therapist-patient relationship or other professional relationship between the ~~court~~court-appointed advisor and the child. Thus, unless the order of appointment expressly states otherwise, a child’s communications with a ~~court~~court-appointed advisor appointed under this Act are not privileged.

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SECTION 9. ORDER OF APPOINTMENT.

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(a) ASubject to subsection (b), an order of appointment ~~designating~~must be in a record, identify the ~~role of~~individual who will act as the ~~appointee~~child’s representative under Section 4, 5, or 6 ~~must be recorded~~, and clearly set forth the terms of the appointment, including the ~~reasons~~grounds for and duration of the appointment, rights of access as provided under Section 15, and applicable terms of compensation.

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(b) The court may identify in the order of appointment a private organization or governmental program that will provide the representative for the child. The organization or program shall designate an individual who will act as the child’s representative and submit to the court the name of the individual as soon as feasible, at which time the court shall amend the order of appointment to identify the designated individual as the child’s representative.

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(bc) If appropriate in light of changed circumstances or new information not available at the time of the original appointment, an attorney appointed as a best interests attorney may be reappointed as a child’s attorney by a new order of appointment that complies with subsection (a). In deciding whether to make a reappointment, the court shall consider such factors as the child’s developmental level, any desire for an attorney expressed by the child, any objectives in the proceedings expressed by the child, and the value of an independent advocate for the child’s best interests.

Comment

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Orders of appointment for children’s representatives have often failed to clearly communicate the expectations for the representative. Lack of clarity in a representative’s role can lead to ineffective representation. Under this section, the order of appointment ~~should~~must be in writing and ~~should~~ identify the role of the appointed representative in plain language understandable to non-lawyers. The order should explain the reasons for the appointment and the ~~tasks~~scope of t~~o be performed as precisely as possible~~he representative’s responsibilities, and it ~~should~~must state how long the appointment will last. Payment terms should also be expressly set out in the order. Clarity in the order will help all parties understand the role and authority of the appointed representative. Moreover, the court will be better equipped to exercise effective oversight if the appointed representative’s powers and duties are clearly described in the order. For a Model Appointment Order, see Appendix A, ABA Standards of Practice for Lawyers Representing Children in Custody Cases.

This section permits a court to designate a private organization or governmental program in making an appointment under the Act, since it may not always be possible for a court to include the name of the representative at the outset of an abuse and neglect proceeding. If this occurs, the designated organization or program must quickly identify the individual who will be taking on the representation.

A lawyer may not serve both as a child’s attorney and a best interests attorney for the same child at the same time. Such a blurring of roles would give rise to the very problems that this Act is designed to avoid. On the other hand, a lawyer’s role may change over time. This section recognizes that in some situations, an attorney initially appointed as a best interests attorney may be more appropriately designated as a child’s attorney if the child over time has developed the capacity and desire to direct counsel. In that event, a lawyer should seek a reappointment in a new order of appointment from the court. Significantly, this section requires court action and does not permit a lawyer to unilaterally redesignate his or her role.

It should be noted that this section does not permit a child’s attorney to be reappointed as a best interests attorney. In light of ethical restrictions on a child’s attorney under Section 12 and the contrasting ability of a best interests attorney to use a child’s confidential communications under sSection 13, a conversion of a child’s attorney into a best interests attorney might compromise the child’s confidences.

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SECTION 10. DURATION OF APPOINTMENT.

~~All~~ (a) In an abuse and neglect proceeding, unless otherwise provided by a court order, an appointment of a child’s attorney, best interests attorney, or court-appointed advisor continues in effect until the proceeding is concluded.

(b) In a custody proceeding, an appointment of a child’s attorney, best interests attorney, or court-appointed advisor continues in effect only for the term provided in the order of appointment or any subsequent order.

[(c) The appointment of a child’s attorney, best interests attorney, or court-appointed advisor continues through any appeal that may be filed in the proceeding on behalf of the child or other party.]

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Comment

It is important to have continuity in representation, both in terms of practical impact and in terms of the child’s emotional perspective. A lawyer or ~~court~~court-appointed advisor who has been representing a child from the beginning of an abuse and neglect or custody proceeding ordinarily will have a fuller understanding of the issues in the case than will a representative who is appointed midstream. Moreover, a child’s sense of trust and confidence in his or her representative will be enhanced if that representative is the same person over time. Of course, a court remains free at any point to terminate the appointment of a representative if the representative’s performance is inadequate.

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~~court-appointed attorneys for children, whether in the role~~

Under this section, the appointment of child’s attorney or best interests attorney, must have adequate training or experience to discharge their duties with competence. States are encouraged to adopt state-wide standards of practice for all children’s attorneys through court rule or rule promulgated by the state bar regulatory agency or otherwise. Such standards of practice should include a description of required traininga representative in ~~applicable statutory codes, case law and court procedures, the dynamics of child~~an abuse and neglect~~, domestic violence, child development and child psychology, treatment issues, communication with children, cultural awareness, and~~ proceeding presumptively lasts until the impact of separation and long-term consequences to a child of being in temporary care. In addition, mandatory periodic training requirements exist in many states to ensure that children’s counsel continue to meet standards of competence on an ongoing basis.

~~Before making an~~proceeding is concluded. Although the court can provide otherwise, the appointment~~, courts should be satisfied that~~ ordinarily will continue until the ~~attorney possesses the relevant qualifications established by law or rule. Courts may rely on agencies or~~ child ~~advocacy organizations for lists of available attorneys~~is no longer under state protection. For example, if a child’s dependency proceeding is dismissed and the child’s case is closed, the proceeding can be deemed concluded. On the other hand, a child in long-term foster care may not have an active case file but the proceeding would not be “concluded” with ~~appropriate training and experience, but~~in the meaning of this section ~~contemplates that~~. Indeed, in ~~each case a particular lawyer will be appointed by name for each child. Children’s attorneys and best interests attorneys should become familiar with~~ the ~~ABA Abuse and Neglect Standards, the suggested amendments to those standards adopted by the National Association of Counsel for Children~~latter situation, and the ABA Custody Standards. Also, in making an appointment under this Act, the court should ensure that the attorney’s caseload is not so burdensome as to undermine his or her ability to competently serve as the child’s representative and to fulfill the duties identified in Sections 11-13. See ABA Abuse and Neglect Standards L-1 (providing duty of trial courts to control size of court-appointed caseloads). For effective representation, a lawyer must be able to engage in certain essential tasks, including meeting with his or her client, interviewing relevant witnesses, conducting investigation and discovery, and reviewing records pertaining to the child. The National Association of Counsel for Children has recommended that a child’s lawyer represent no more than 100 clients at a time. See Testimony of Marvin Ventrell, NACC Executive Director, Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005).

~~SECTION 10. QUALIFICATIONS OF COURT ADVISOR.~~

(a) The court may appoint as court advisor for a child only a qualified individual or a non-profit or governmental organization of qualified individuals. To be qualified, an individual must have received training or have experience in the type of proceeding in which the appointment is made, according to standards established by [federal law,] law of this state other than this [act][,] or judicial or other rule.

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can play an essential role in ensuring that periodic assessments of the child’s placement and services occur as required by law.

~~In appointing~~An appointment in a ~~court advisor~~custody case continues for ~~a child,~~the term provided in the court may appoint an individual as court advisor based on that individual’s training, ability, and experience in child advocacy. Alternatively, the court may identify a nonprofit organization or governmental program consisting of volunteer advocates, such as the Court Appointed Special Advocates (CASA), or a specific volunteer advocate from a list maintained by the court pursuant to other provisions of state law.

order of appointment

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~~As with~~, since the ~~training for attorneys for children~~child’s need for representation in that context will often be short-term and issue-specific. Nevertheless, subsequent reappointment of the same representative for a child may be appropriate where related custody proceedings arise in the future, such as a relocation dispute arising several years after an initial custody decree.

The right of a child’s attorney, best interests attorney, ~~the~~or court ~~advisor training should be required on an ongoing basis. It should include instruction on the applicable state and federal law, the dynamics of child~~-appointed advisor to participate in any appeal or to bring an appeal on behalf of the child is determined by state law. State law varies on the question of standing to file an appeal or participate on appeal, just as it varies on whether children have formal party status in abuse and neglect, domestic violence, child development, treatment issues, communication with children, cultural awareness, the impact of separation, and the long-term consequences to a child of being in temporary care.

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~~[LEGISLATIVE NOTE TO SECTIONS 11, 12, AND 13: In those~~ and custody proceedings. See, e.g., Ihinger v. Ihinger, 824 A.2d 601 (Vt. 2003)(children were not parties to parent’s divorce and custody dispute and therefore lacked standing to appeal). In states where the ~~duties of attorneys can only be prescribed by rules of court and not by legislation, the duties listed in Sections 11, 12, and 13 should be adopted by appropriate court rule.]~~

child through a representative can participate fully on appeal, the representation of the child extends to any appellate proceeding. To the extent feasible, courts should ensure continuity of counsel on appeal. The child’s representative should take actions that are consistent with the representative’s role in deciding whether to file an appeal on behalf of the child or to participate in an appeal brought by other parties.

[SECTION 11. DUTIES OF CHILD’S ATTORNEY AND BEST INTERESTS ATTORNEY.

(a) A child’s attorney or best interests attorney shall participate in the conduct of the litigation [to the ~~same~~full extent ~~as an attorney for any party][to the extent permitted under the law of this state other than this act].~~

~~(b) Within a reasonable time after appointment,~~necessary to represent the child.

(b) The duties of a child’s attorney or best interests attorney ~~shall~~include:

(1) ~~meet~~meeting with the child and ~~ascertain~~ascertaining, in a manner appropriate to the child’s developmental level, the child’s needs, circumstances, and views;

(2) ~~meet and consult~~consulting with any ~~court advisor appointed for the child~~court-appointed advisor for the child and arranging for the court-appointed advisor to meet with the child in the attorney’s presence or, if the attorney agrees, outside the attorney’s presence;

(3) ~~investigate~~investigating the facts relevant to the proceeding to the extent the attorney considers appropriate, including interviewing persons with significant knowledge of the child’s history and condition and reviewing copies of relevant records;

(4) ~~obtain and review copies of relevant records relating to the child to the extent the attorney considers appropriate;~~

~~(5) determine, in a manner appropriate to the child’s developmental level, the child’s expressed objectives~~providing advice and counsel to the child;

(5) informing the child of the status of the proceeding and the opportunity to participate and, if appropriate, facilitating the child’s participation in the proceeding;

(6) ~~present the child’s~~reviewing and accepting or declining to accept any proposed stipulation for an order affecting the child and explaining to the court the basis for any opposition.

(7) presenting any expressed objectives of the child in the proceeding to the court, if the child so desires, by a method that is appropriate in light of the purpose of the proceeding and the impact on the child;

~~(7) inform the child of the status of the proceeding and the opportunity to participate and, if appropriate, facilitate the child’s participation in the proceeding;~~

(8) ~~take~~taking any action that the attorney considers appropriate to expedite the proceedings and the resolution of contested issues; and

(9) when the attorney considers appropriate, ~~encourage~~encouraging settlement and the use of alternative forms of dispute resolution and ~~participate~~participating in such proceedings [to the extent permitted under the law of this state].]

LEGISLATIVE NOTE TO SECTIONS 11: In states where the duties of attorneys can be prescribed only by rule of court or administrative guideline and not by legislative act, the duties listed in Section 11 should be adopted by the appropriate measure.

Comment

The general duties of an attorney, whether serving as the child’s attorney or as best interests attorney, include developmentally appropriate communication with the child and interviews of all parties and persons likely to have significant knowledge of the child’s circumstances. The attorney should investigate the case fully while still complying with ethical restrictions on contact with represented parties, and conversely the attorney should ensure that other parties respect the ethical restrictions arising from the fact that the child is represented in the proceeding. The attorney is in a pivotal position in negotiations and should attempt to resolve the case in the least adversarial manner possible. Both the child’s attorney and the best interests attorney have the duty to advise and counsel the child and review proposed settlements on behalf of the child. Similarly, lawyers should be cognizant of children’s sense of time and should expedite the proceedings to achieve a prompt resolution whenever feasible. For a detailed enumeration of the pretrial and trial responsibilities for children’s counsel, attorneys should refer to Standards III (F) and (G) of the ABA Custody Standards.

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In addition, courts must ensure that children and their attorneys receive notice and the

opportunity to participate in all judicial proceedings affecting the child’s welfare. The attorney, whether child’s attorney or best interests attorney, should participate actively in all hearings and conferences on issues within the scope of the appointment. Moreover, the child’s attorney and best interests attorney should, when appropriate, inform the child of hearings, settlement conferences, and other proceedings and enable the child to attend ~~when appropriate~~. The emotional and psychological value to a child of participating in a proceeding affecting his or her welfare may be of profound significance. In the abuse and neglect context, a recent study concluded that “[c]hildren, parents, and caregivers all benefit when they have the opportunity to actively participate in court proceedings, as does the quality of decisions when judges can see and hear from key parties.” The Pew Commission on Children in Foster Care, Fostering the Future: Safety, Permanence and Well-Being for Children in Foster Care 42 (2004), available at www.pewfostercare.org. On the other hand, a child might receive little therapeutic benefit from observing an acrimonious custody dispute. Thus, this section recognizes the potential value of participation by the child and places a corresponding duty on both the child’s attorney and best interests attorney in that regard.

A child’s legal counsel, whether a child’s attorney or best interests attorney, may become aware of needs of the child that go beyond the particular proceeding. In abuse and neglect proceedings in particular, a child may be eligible for specialized educational, medical, or mental health services under federal or state programs. To the extent that a lawyer learns of such needs, the lawyer should request permission 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. See Standard D-12, ABA Abuse and Neglect Standards.

SECTION 12. DUTIES UNIQUE TO CHILD’S ATTORNEY.

[(a)] A child’s attorney owes to the child the duties imposed by the law of this state in an attorney-client relationship.

[(b) A child’s attorney shall:

~~(1)~~ explain the nature of the attorney-client relationship to the child, including the requirements of confidentiality;.

~~(2) provide advice and counsel to the child;~~

~~(3) keep the child informed of the nature and status of the proceeding; and~~

~~(4) review and accept or decline to accept any proposed stipulation for an order affecting the child and explain to the court the basis for any opposition.~~

(c) Subject to subsections (d) and (e), once the child has formed an attorney-client relationship with a child’s attorney, the attorney shall advocate any objectives of representation expressed by the child unless they are prohibited by law or without factual foundation.

(d) If a child’s attorney determines that the child ~~[lacks the capacity to understand the nature of an attorney-client relationship or]~~ lacks the capacity or refuses to direct the attorney with respect to a particular issue, the attorney shall:

(1) present to the court a position that the attorney determines will serve the child’s best interests if the position is not inconsistent with the child’s expressed objectives;

(2) take no position as to the issue in question; or

(3) request appointment of a ~~court~~court-appointed advisor ~~[or best interests attorney]~~.

(e) If ~~a child’s attorney determines that~~, despite appropriate legal counseling, the child ~~continues to~~ expresses objectives of representation that the child’s attorney determines would ~~put~~expose the child atto an unacceptable risk of ~~reasonably certain and~~ substantial harm, the attorney shall:

~~(1) if neither~~ request the appointment of a court-appointed advisor if a court-appointed advisor has not been appointed, or withdraw from representation and request the appointment of a best interests attorney ~~nor a court advisor has been appointed, request appointment of [a~~. The child’s attorney shall not disclose the reasons for requesting a court-appointed advisor or best interests attorney ~~or] a court advisor without disclosing the reason for the request, unless disclosure is~~ except as permitted by [this state’s rules of professional conduct]~~; and~~

~~(2) continue to advocate the child’s expressed objectives or request to withdraw from the representation.~~

LEGISLATIVE NOTE TO SECTION 12: In states where the duties of attorneys can be prescribed only by rule of court or administrative guideline and not by legislative act, the duties listed in the bracketed provisions should be adopted by the appropriate measure. In states that enact only subsection (a), the text of subsection (a) should immediately follow the heading of the section.

Comment

The child’s attorney is in a traditional lawyer/client relationship with the child and, as such, is in a unique position to ensure that the child has a legal voice in the proceeding. The child’s attorney should explain the meaning and consequences of the child’s choices in terms the client can understand. As in other lawyer/client relationships, the lawyer may express his or her assessment of the case and advise the child of the best goals to pursue. On the other hand, the lawyer must remain aware that the child may be more vulnerable to manipulation than an adult client. The lawyer has a duty not to overbear the will of the client. As a client-directed lawyer, the lawyer may not advocate a position contrary to the child’s expressed position except as permitted by applicable ethical standards.

Consistent with ABA Model Rule 1.14, the child’s attorney should determine whether the child has sufficient maturity to understand and form an attorney-client relationship and whether the child is capable of making reasoned judgments and engaging in meaningful communication. A determination of incapacity may be incremental and issue-specific, thus enabling the child’s attorney to continue to function as a client-directed lawyer as to major questions in the proceeding. When a child does lack capacity to formulate objectives of representation as to a particular matter, this section permits the child’s attorney to advocate the best interests of the child as to that matter. In so doing, however, the child’s attorney may not take a position that is contrary to an expressed objective of the child in the proceeding. For cases of such incremental lack of capacity, the child’s attorney may also simply take no position on the matter in question. Finally, the child’s attorney may request the appointment of a ~~court~~court-appointed advisor or, where permitted, a best interests attorney. Some states may wish to prohibit the appointment of a best interests attorney, even on a temporary basis, when the child already has a child’s attorney. If so, the bracketed phrase in subsections (d)(3) should be excluded.

This section reflects the approach of the ABA Abuse and Neglect Standards and the ABA Custody Standards as to the dilemma that can arise when the child’s expressed goals in the proceeding may place the child at risk of harm. These guidelines are also consistent with prevailing ethical standards. See Rules 1.14 and 1.6, ABA Model Rules of Professional Conduct (2002). A child’s attorney may not refuse to advocate the child’s wishes simply because the attorney disagrees with the child’s view or believes the child’s objectives will not further the child’s best interests. On the other hand, the child’s attorney is not bound by the child’s expressed wishes if pursuing those wishes would put the child at unacceptable risk of substantial physical, emotional, psychological or other harm and is not merely contrary to the lawyer’s opinion of the child’s interests. ~~The requirement that the risk of harm be “reasonably certain” is intended to distinguish situations where the risk is remote and speculative.~~ In most cases, the ethical conflict involved in asserting a position that would seriously endanger the child can be resolved through the lawyer’s counseling function. If it cannot be resolved, this section ~~permits~~directs the child’s attorney to either request the appointment of a ~~court advisor or, where permitted, a best interests attorney. Similar to the bracketed phrase in subsection (d)(3), subsection (e)(1) includes a bracketed phrase for~~court-appointed advisor or to withdraw and request the appointment of a best interests attorney. ~~In any event, a~~

A child’s attorney should not reveal the reason for ~~the request unless such disclosure is necessary to prevent harm to the child and is~~requesting a court-appointed advisor or withdrawing except as permitted by the state’s ethics rules on confidentiality. ~~These guidelines for the~~Under Model Rule 1.14, lawyers are impliedly authorized to reveal information about a client with diminished capacity when taking protective action on behalf of the client, but only to the extent reasonably necessary to protect the client’s interests. Ethical rules also typically permit attorneys to disclose confidential information where necessary to prevent reasonably certain death or bodily harm. See Rule 1.6(b). Thus, if information about the risk of harm is not otherwise available, a child’s attorney ~~are consistent with prevailing ethical standards. See Rules 1.14 and 1.6(a), ABA Model Rules.~~

~~Ordinarily, a court would not also appoint a~~may reveal the reasons for requesting a court-appointed advisor or best interests attorney ~~for a child who already has a child’s attorney. Typically, a court advisor~~in order to protect the child from harm.

Often a court-appointed advisor can satisfactorily assist the court in determining the child’s best interests through appropriate investigation and reports can enable the court to determine the child’s best interests. Nevertheless, in exceptional cases involving a competent child who persists in taking a position that poses a risk of serious harm, a court might conclude that a best interests attorney should be appointed to ensure a full presentation of the facts to the court. Alternatively, a court mightsubmission of reports. In unusual cases, however, a court may need to appoint a ~~court~~court-appointed advisor as well as a lawyer to represent the ~~court~~court-appointed advisor into ensure a full presentation of the ~~proceeding~~evidence.

Even where the child’s expressed objectives may place the child at risk of substantial harm, the child has a right to have his or her views made known to the court. Under ordinary ethical standards and court rules, however, a lawyer may not advocate positions that are not well grounded in fact and warranted by existing law or a nonfrivolous argument for modification of existing law. See ABA Model Rule 3.1; Rule 11, Fed. R. Civ. Pro. Thus, the child’s attorney may not advocate the child’s wishes if the child’s position is prohibited by law or lacks any factual foundation. ~~In extreme and rare situations w~~Where the child persists in wanting the attorney to advocate a position unsupportable under the law, the attorney may seek to withdraw from the representation.

If a court grants permission to withdraw from representation in an abuse and neglect proceeding, the court must ensure that the child continues to have legal representation in compliance with Section 4. ~~If the child does not already have a best interests attorney, the court should appoint a lawyer for the child as soon as feasible after withdrawal. The~~In general, the court has discretion to appoint either a best interests attorney or child’s attorney, and the court should decide on the nature of the appointment in light of the child’s wishes, the court’s needs, the circumstances of the prior attorney’s withdrawal, and other factors in the case. If, for example, a child’s attorney has withdrawn under the circumstances described in the preceding paragraph, the court presumably would appoint a best interests attorney. A request from an older child for a child’s attorney should be given special consideration by the court, since the child’s voice may be effectively silenced without such an appointment. In a custody proceeding, on the other hand, the appointment of a lawyer is always discretionary. In the event of withdrawal of a child’s attorney in that context, the court retains discretion to decide whether to appoint another representative for the child and to decide on the role of that representative.

SECTION 13. DUTIES UNIQUE TO BEST INTERESTS ATTORNEY.

[(a)] A best interests attorney shall advocate for a resolution of the proceeding consistent with the best interests of the child based on the facts relevant to the proceeding and according to criteria established by law related to the purposes of the proceeding.

[(b) A best interests attorney, in a manner appropriate to the child’s developmental level, shall:

(1) explain the role of the best interests attorney to the child; and

(2) inform the child that, in providing assistance to the court, the attorney may use information that the child gives to the attorney~~; and~~

~~(3) unless the child has a [child’s attorney or] privately retained attorney:~~

~~(A) keep the child informed of the nature and status of the proceeding;~~

~~(B) provide advice and counsel to the child; and~~

~~(C) review and accept or decline to accept any proposed stipulation for an order affecting the child and explain to the court the basis for any opposition.~~

(c) A best interests attorney is not bound by the child’s expressed objectives but shall consider the child’s objectives with due regard to the child’s developmental level in determining what to advocate.

(d) A best interests attorney may not disclose ~~a child’s confidential communications with the attorney~~or be compelled to disclose information relating to the representation of the child except as permitted by [this state’s rules of professional conduct ~~for attorneys] as if the child were in an attorney-client relationship with the attorney~~], but the attorney may use such information, including communications received from the child’s in confidences, for the purpose of performing the duties of a best interests attorney without disclosing ~~the confidences.~~

that the child was the source of the information.]

LEGISLATIVE NOTE TO SECTION 13: In states where the duties of attorneys can be prescribed only by rule of court or administrative guideline and not by legislative act, the duties listed in the bracketed provisions should be adopted by the appropriate measure. In states that enact only subsection (a), the text of subsection (a) should immediately follow the heading of the section.

A conforming amendment to a state’s rules of professional conduct may be necessary to authorize the performance of the duties of the best interests attorney as described in this Section.

Comment

The best interests attorney provides legal services for the purpose of protecting the child’s best interests. Although the best interest attorney is not client-directed, the attorney is nevertheless providing legal representation to the child as a lawyer. Because the determination of best interests is imprecise and highly contextual, the best interests attorney should follow objective criteria and should not substitute his or her personal views of best interests. The “criteria established by law relating to the purposes of the proceeding” will include standards imposed by federal and state law for child protection in abuse and neglect proceedings, as well as a state’s substantive law governing child custody determinations. See, e.g., Section 402 of the Uniform Marriage and Divorce Act. Moreover, the attorney’s legal representation should be informed by an understanding of the child’s individual circumstances and needs, including the child’s developmental level, unique family relationships, and cultural background.

If the child has no other attorney representative, the best interests attorney’s duties also include keeping the child informed about the proceedings, advising the child, and reviewing proposed stipulations. In rare circumstances, a child may have a privately retained counsel who has not been appointed by the court. In addition, where permitted by state law, a court may appoint a best interests attorney under Section 12 to assist it in determining the child’s interests even where the child already has a child’s attorney. In these unusual situationsConfidentiality of attorney-client communications is fundamental to the traditional attorney-client relationship in order to encourage openness by the client and to enable the attorney to render effective representation. In general, the rule of confidentiality extends to unauthorized use as well as disclosure of client information. See Model Rule 1.6 (barring disclosure of information relating to representation); Model Rule 1.8(b)(barring use of information relating to representation to disadvantage of client). Nevertheless, ethical rules permit disclosure of client information to the extent necessary to protect a client’s interests when a lawyer is taking protective action on behalf of a client with diminished capacity. Model Rule 1.14(c). Under ordinary ethical guidelines, the best interests ~~attorney’s responsibilities are necessarily limited by the fact that the child has other counsel. The bracketed phrase under subsection (b)~~attorney, like the child’s attorney, may reveal the child’s confidences if necessary to protect the child from harm under ordinary ethical guidelines. See Comment to Section 12. The best interests attorney, however, has greater latitude than the child’s attorney in one key respect: to use information received from the child for purposes of the representation without revealing the source of the information. This section recognizes that ~~some states may not permit the appointment of a~~a limited inroad on the principle of confidentiality may be necessary to enable the best interests attorney ~~for a child who already has a child’s attorney~~to carry out the purposes of the representation.

Under this section, ~~a child’s communications with a~~information received from the child is protected by ordinary rules of professional conduct except that use of such information, including confidential communications, is permitted to enable the best interests attorney ~~are confidential except that use of the communications is permitted if necessary to protect a child’s interests~~to perform his or her role. Although some states have permitted the hybrid lawyer/guardian ad litem to reveal the child’s confidential communications to the court where necessary to promote the child’s best interests, see Clark v. Alexander, 953 P.2d 145 (Wyo. 1998), this section provides a more limited exception to the principle of client confidentiality. ~~Thus~~

Under the use exception, a best interests attorney may use a child’s confidential communications for the purpose of the representation without disclosing them. The distinction between use and disclosure means, for example, that if a child tells the attorney that a parent ~~uses illegal drugs~~abuses alcohol, the attorney may use that information to find ~~and present~~an independent source of evidence of the parent’s alcohol abuse. The attorney may present that separate evidence of ~~the drug use to the court~~alcohol abuse but may not reveal that the initial source of information was the child. The best interests attorney should explain to the child that the child’s communications may be used by the attorney in order to achieve the best resolution for the child in the proceeding.

The prohibition on disclosure is intended to provide a measure of confidentiality for the child’s relationship with the best interests attorney. It may also diminish the child’s feelings of responsibility or guilt for the presentation of negative evidence about his or her parents or care-givers. Although this section does modify the ethical obligations ordinarily inherent in the attorney-client relationship, it is designed to accommodate competing concerns: the child’s need to trust his or her lawyer and to speak freely in confidence versus the court’s need for a full presentation of evidence in order to reach a disposition in the child’s best interests.

SECTION 14. DUTIES OF ~~COURT~~COURT-APPOINTED ADVISOR. A ~~court~~court-appointed advisor appointed for a child shall:

(1) within a reasonable time after the appointment:

(A) meet with the child and ascertain, in a manner appropriate to the child’s developmental level, the child’s needs, circumstances, and views;

(B) investigate the facts relevant to the proceeding to the extent the ~~court~~ advisor considers appropriate, including interviewing persons with significant knowledge of the child’s history and condition;

(C) obtain and review copies of relevant records relating to the child to the extent the ~~court~~ advisor considers appropriate;

(D) meet and consult with the child’s attorney or the best interests attorney, if any, regarding the issues in the proceeding;

(2) determine, in a manner appropriate to the child’s developmental level, the child’s expressed objectives in the proceeding;

(3) present the child’s expressed objectives to the court, if the child so desires, by report or other submission;

(4) consider the child’s expressed objectives in the proceeding without being bound by them;

(5) maintain the confidentiality of information relating to the proceeding except as necessary to perform the duties of ~~court~~court-appointed advisor or as may be specifically provided by law of this state other than this [act];

(6) if appropriate, present recommendations to the court regarding the child’s best interests and the bases of those recommendations;

(7) provide copies of any report or other document submitted to the court by the advisor to any child’s attorney or best interests attorney appointed for the child and to the parties;

(8) when the ~~court~~ advisor considers appropriate, encourage settlement and the use of any alternative forms of dispute resolution and participate in such proceedings [to the extent permitted under the law of this state]; and

(9) perform any specific task directed by the court not inconsistent with the role of ~~court~~court-appointed advisor.

Comment

This section describes the general function of the ~~court~~court-appointed advisor and makes clear that the ~~court~~court-appointed advisor should explain his or her role to the child in terms the child can understand. The ~~court~~court-appointed advisor has a duty to conduct an independent investigation in order to ascertain the facts of the case. In carrying out that duty, the ~~court~~court-appointed advisor must have access to the child and a reasonable opportunity to interview persons with relevant knowledge of the child, including the parties. If the child is represented by counsel, whether child’s attorney or best interests attorney, the ~~court~~court-appointed advisor ~~should~~must notify counsel and permit counsel to be present during any interview. In addition, the ~~court~~court-appointed advisor’s investigation ordinarily should include a review of relevant records. To ensure that the ~~court~~court-appointed advisor has the ability to carry out his or her responsibilities under this section, the order of appointment should expressly provide for such rights of access.

In abuse and neglect and custody proceedings, the ~~court~~court-appointed advisor’s obligations to the court may include the duty to make recommendations concerning the child’s best interests. State law varies as to whether mental health experts should or must make recommendations to the court on the ultimate disposition of the case. Disagreement also exists within the mental health profession about whether mental health professionals are qualified to offer opinions on the ultimate question of the child’s best interests. Some commentators argue that the determination of a child’s best interests is the prerogative of the court and not within the expertise of the mental health profession. See generally Gary B. Melton, et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals (Guilford Press 2d ed. 1997). In any event, the ~~court~~court-appointed advisor should be prepared to make such recommendations if requested by the court, always ensuring that the recommendation or opinion is based on the advisor’s thorough and unbiased investigation of the case.

~~Court~~Court-appointed advisors, including CASA’s, must observe all statutes and court rules concerning confidentiality and should not disclose information about the appointed case to non-parties other than the court and court-authorized personnel. Although attorney-client confidentiality rules do not govern the ~~court~~court-appointed advisor’s communications with the child, the advisor should protect the child’s privacy and should reveal the child’s statements only when necessary to fulfill the advisor’s duties to the court. For guidelines governing the duty of confidentiality for guardians ad litem, see Minnesota Rule 908, General Responsibilities of Guardians Ad Litem; Standard 7.0, Standards for Guardians Ad Litem in Missouri Juvenile and Family Court Matters.

Many states have developed more detailed standards governing the duties of ~~court~~court-appointed advisors, generally under the rubric of “guardian ad litem,” than those contained in this Act. See, e.g., Judicial Council of Virginia, Standards to Govern the Appointment of Guardians Ad Litem, at www.courts.state.va.us/1/cover.htm; There are also numerous sources governing CASA programs and specifying the duties of CASA volunteers. See, e.g., Nat’l CASA Association, Standards for National CASA Association Member Programs (2002), available at www.nationalcasa.org; Office of Juvenile Justice and Delinquency Prevention, Court Appointed Special Advocates: A Voice for Abused and Neglected Children in Court (1997).

SECTION 15. ACCESS TO CHILD AND INFORMATION RELATING TO CHILD.

(a) Subject to subsection (c) ~~and any conditions imposed by the court that are required by law, rules of professional conduct, the child’s needs, or the circumstances of the proceeding~~, the court shall issue an order of access at the time of an order of appointment under this [act], authorizing the child’s attorney, best interests attorney, or ~~court~~court-appointed advisor to have immediate access to:

(1) the child; and

(2) any confidential information relating to the child as to which the child may otherwise have a privilege of nondisclosure.

(b) The custodian of any relevant record relating to a child shall provide access to a person authorized by order issued pursuant to subsection (a) to access the records.

(c) AThe court may impose conditions or limitations on an order of access which are required by law, rules of professional conduct, the child’s needs, or the circumstances of the proceeding, and a child’s record that is privileged or confidential under law other than this [act] may be released to a person appointed under this [act] only in accordance with that law.

Comment

Persons appointed to represent children under this Act must have access to information regarding the child in order to competently perform their assigned roles. Relevant files include those concerning child protective services, developmental disabilities, juvenile delinquency, mental health, and educational programs. Access should also be provided to records of a probate or other court proceeding as well as records of any trust or account for which the child is a beneficiary.

Under subsection (ac), a court may impose conditions on access that are required by law, ethical rules, the child’s needs, or the circumstances of the case. A lawyer may need to use subpoenas or other discovery tools to obtain relevant records, for example. Moreover, if a child’s parent is represented by counsel, a child’s attorney or best interests attorney would need to comply with applicable rules of professional conduct governing contact with represented parties. Similarly, a child’s attorney or best interests attorney may have the right to be present when the child is interviewed by others. To the extent feasible, the order of appointment should explain the relevant limitations on access in detail.

Subsection (c) also recognizes that federal or state law, such as the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (the “Buckley Amendment”), and the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 201, may impose independent requirements for access that a child’s representative must observe. See 34 C.F.R. § 99.31-39 (requirements for access to educational records under Buckley Amendment); 45 C.F.R. § 164.512 (requirements for access to health records under HIPAA). In some circumstances, the order of appointment will need to contain qualifying language to enable the appointed representative to gain access to the protected records.

SECTION 16. PARTICIPATION IN PROCEEDING BY CHILD’S ATTORNEY, BEST INTERESTS ATTORNEY, AND ~~COURT~~COURT-APPOINTED ADVISOR.

(a) A child’s attorney, best interests attorney, and ~~court~~court-appointed advisor for a child are each entitled to:

(1) receive a copy of each pleading or other record filed with the court in the proceeding;

(2) receive notice of and attend each hearing in the proceeding; and

(3) participate in any case staffing or case management conference concerning the child in an abuse and neglect proceeding.

(b) A child’s attorney, best interests attorney, and ~~court~~court-appointed advisor may not engage in ex parte contact with the court except as authorized by law other than this [act].

(c) A ~~court~~court-appointed advisor may not take any action that may be taken only by a licensed attorney, including making opening and closing statements, examining witnesses in court, and engaging in discovery other than as a witness.

(d) The court, a child’s attorney, or a best interests attorney may compel any ~~court~~court-appointed advisor for a child to attend a trial or hearing relating to the child and to testify as necessary for the proper disposition of the proceeding.

(e) The court shall ensure that any ~~court~~court-appointed advisor for a child has an opportunity to testify or submit a report setting forth:

(1) the ~~court~~court-appointed advisor’s recommendations regarding the best interests of the child; and

(2) the bases for the ~~court~~court-appointed advisor’s recommendations.

(f) In a [nonjury] proceeding, a party may call any ~~court~~court-appointed advisor for the child as a witness for the purpose of cross-examination regarding the advisor’s report without the advisor’s being listed as a witness by a party.

[(g) In a jury trial, disclosure to the jury of the contents of a ~~court~~court-appointed advisor’s report to the court is subject to this state’s rules of evidence.]

Comment

This section makes clear that a child’s attorney, a best interests attorney, and a ~~court~~court-appointed advisor are each entitled to receive notice of all hearings and to receive copies of all documents filed in the case. The right to participate in case staffings will arise in abuse and neglect proceedings where periodic conferences among court personnel and a child’s representative are mandated by state and federal law to assess the child’s current placement and future status. Unlike the child’s attorney or the best interests attorney, the ~~court~~court-appointed advisor may also testify or submit a report to the court regarding recommendations as to the child’s best interests. Indeed, under Section 14, the ~~court~~court-appointed advisor may have a duty to submit such recommendations in certain cases.

Under this section, the ~~court~~court-appointed advisor is subject to cross-examination regarding the advisor’s recommendations to the court. Although the ~~court~~court-appointed advisor is appointed to assist the court in determining the child’s best interests, ex parte communications with the court are not permitted. The due process rights of the parties require the ~~court~~court-appointed advisor to observe ordinary procedural rules in making recommendations to the court, including giving notice to other participants and affording parties an opportunity to be heard and an opportunity for cross examination. See, e.g., In re Marriage of Bates, 2004 WL 2403721 (Ill. 2004) (failure to provide copy of guardian ad litem report to mother in custody proceeding was violation of due process); Leinenbach v. Leinenbach, 634 So.2d 252 (Fla. App. 1994) (trial court erred in relying on report of guardian ad litem where father was not afforded opportunity to rebut contents of report). Likewise, neither the child’s attorney nor the best interests attorney may engage in ex parte communication with the court except as otherwise authorized by law. Although this prohibition is rooted in the rules of professional conduct governing all lawyers, experience has shown that lawyers for children sometimes bend the rules in their desire to protect the interests of their clients. Thus, the principle is restated in the Act.

SECTION 17. ATTORNEY WORK PRODUCT AND TESTIMONY.

(a) Subject to subsection (b) and except as authorized by [this state’s rules of professional conduct or] court rule, an attorney appointed as child’s attorney or best interests attorney may not:

(1) be compelled to produce the attorney’s work product developed during the appointment;

(2) be required to disclose the source of information obtained as a result of the appointment;

(3) submit a report authored by the attorney into evidence; or

(4) testify in court.

(b) Subsection (a) does not alter ~~the~~any duty of an attorney to report child abuse or neglect under [applicable law].

Comment

There is widespread disagreement about the proper function of children’s lawyers in abuse and neglect and custody proceedings, particularly as a result of the attorney/guardian ad litem model. See generally Ann M. Haralambie, The Child’s Attorney 1-23 (ABA 1993). In several states, the attorney/guardian ad litem may testify and be cross-examined. See, e.g., Jacobsen v. Thomas, 100 P.3d 106 (Mt. 2004). This section clarifies that the child’s attorney and the best interests attorney are to stay within their professional role as lawyers. Thus, the work product of both the child’s attorney and the best interests attorney is presumptively shielded from disclosure. Likewise, neither category of attorney ordinarily should testify as a witness in a proceeding in which the attorney is representing a child.

SECTION 18. IMMUNITY.

(a) Only the child has a right of action in civil damages against a child’s attorney, best interest attorney, or ~~court~~court-appointed advisor for inaction or action taken, including any recommendation or opinion given, in the capacity of child’s attorney, best interests attorney or ~~court~~court-appointed advisor.

(b) A best interests attorney or ~~court~~court-appointed advisor appointed pursuant to this [act] is not liable for civil damages because of inaction or action taken, including any recommendation or opinion given, in the capacity of best interests attorney or ~~court~~court-appointed advisor unless the inaction or action ~~was:~~

~~(1) grossly negligent or reckless;~~

~~(2) intentionally wrongful; or~~

~~(3) based on bad faith or malice.~~

~~Comment~~

taken exceeded ordinary negligence.

Comment

Under this section, only the child has standing to sue for malpractice or other breach of professional responsibility. As courts have recognized, the representative owes a duty of professional competence to the child, not to other parties in the litigation. See In the Interest of Z.J., 153 S.W.3d 535 (Tex. App. 2004)(mother lacked standing to challenge performance of child’s appointed attorney ad litem in parental rights termination proceeding). Children may sue through a next friend or other guardian ad litem, but this section would not permit a parent or care-giver to assert her own challenge to the performance of a child’s representative.

This section provides qualified immunity for persons appointed to assist the court as best interest attorneys or ~~court advisors. The~~court-appointed advisors. States vary in the standards that plaintiffs are required to meet to overcome the defense of qualified immunity, ranging from gross negligence to intentional misconduct and bad faith. For that reason, this section does not attempt to define the precise standard necessary to surmount the immunity. Instead, the section makes clear that conduct more egregious than ordinary negligence must be shown in order for the child to recover.

The provision of qualified immunity is based on the recognition that ~~such individuals~~best interest attorneys and court-appointed advisors need protection from civil actions for damages when performing functions consistent with their appointed roles. Immunity is necessary to ensure that ~~best attorneys and court advisors~~they can fully investigate and formulate recommendations without fear of retaliation ~~by the parties~~. The threat of litigation from a ~~disgruntled~~child client, often fueled by an unhappy parent in the wings, might interfere with the representative’s decision-making and might deter qualified individuals from accepting appointment in the first place. Although in some states children’s representatives have absolute immunity, see, e.g., Paige K.B. by Peterson v. Molepske, 580 N.W. 2d 289 (Wis. 1998)(recognizing absolute immunity for guardian ad litem in custody dispute for actions within scope of authority); Billups v. Scott, 571 N.W. 2d 603 (Neb. 1997)(recognizing absolute immunity for guardian ad litem in abuse and neglect proceeding for actions within scope of authority)~~; Carrubba v. Moskowitz, 877 A.2d 773 (Conn. 2005)(recognizing absolute immunity for child’s attorney whose primary duty was to protect child’s best interests)~~, the qualified immunity provided in this section gives the best interests attorney and ~~court~~court-appointed advisor adequate protection from suit while still holding them accountable for egregious misconduct. See Ore. Rev. Stat. § 419A170 (providing qualified immunity to court appointed special advocate).

On the other hand, the Act does not provide immunity for persons appointed as a child’s attorney. Although a few states have extended immunity to children’s attorneys, e.g., Vernon’s Texas Code Ann. Family Code § 107.009 (2004), the premise of this section is that such lawyers are in a traditional lawyer/client role and should be held to ordinary standards of care. ~~Nevertheless,~~Rather than independently formulating the child’s best interests, the child’s attorney for the most part is a client-directed lawyer in a traditional mode of client representation. It should be noted, however, that in some circumstances children’s attorneys may function as best interests attorneys. If a child’s attorney receives no direction from a child on a particular issue ~~and~~, for example, the attorney may takes an action under Section 12(d) that the attorney has determined will serve the child’s best interests~~, the attorney should be protected by~~. In that circumstance, courts may wish to extend qualified immunity ~~for~~to cover the action taken. Similarly, if a child’s attorney takes protective action under Section 12(e) because the child’s objectives place the child at risk of harm, the attorney’s action should fall within the qualified immunity. In other words, courts ~~should~~are encouraged to take a functional approach to the question of immunity. See Carrubba v. Moskowitz, 877 A.2d 773 (Conn. 2005)(recognizing absolute immunity for child’s attorney whose primary duty was to protect child’s best interests); Marquez v. Presbyterian Hospital, 608 N.Y.S.2d 1012 (Sup. Ct. 1994)(holding that law guardian is entitled to qualified immunity when functioning primarily as child’s guardian ad litem but would be liable for ordinary negligence when functioning as child’s attorney).

SECTION 19. FEES AND EXPENSES IN ABUSE AND NEGLECT PROCEEDING.

(a) In an abuse and neglect proceeding, an individual ~~or organization~~ appointed pursuant to this [act], other than a volunteer advocate, is entitled to reasonable fees and expenses in an amount set by the court.

(b) If the court determines that a parent or other responsible party is able to defray all or part of the fees and expenses set pursuant to subsection (a), the court shall:

(1) order one or more of those persons to pay all or part of the fees and expenses; or

(2) order one or more of those persons, before final hearing, to deposit the amount necessary to pay all or part of the fees and expenses into court or into an account authorized by the court for the use and benefit of the individual or organization appointed under this [act].

(c) Any fees and expenses set pursuant to subsection (a) that cannot be paid by a parent or responsible party because of indigency must be paid from [designated public funds]. The court may not award fees under this [act] against the state, a state agency, or a political subdivision of the state except as provided in this subsection.

(d) In order to receive payment of fees and expenses under this section, the payee must complete and submit to the court a voucher or claim for payment, listing the fees charged, actions taken, and hours worked.

Comment

This section requires that attorneys and ~~court~~court-appointed advisors receive adequate and timely compensation in abuse and neglect proceedings throughout the terms of appointment, unless the appointee is a volunteer advocate. States should ensure that adequate funds are appropriated and made available to compensate children’s representatives. Under the mandate of federal law, states are obligated to appoint guardians ad litem for children in abuse and neglect proceedings. See Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii) (2000). As a matter of state law, this Act supplements the federal requirement by requiring that indigent children receive publicly-funded legal representation, whether in the form of child’s attorney or best interests attorney. See Section 4. When a ~~court~~court-appointed advisor is also required under Section 5, that appointment will likewise be at public expense for indigent children. The child’s attorney, best interests attorney, and ~~court~~court-appointed advisor should also have access, where necessary, to reimbursement for experts, investigative services, research costs, and other activities undertaken to fulfill the obligations of the appointment.

SECTION 20. FEES AND EXPENSES IN CUSTODY PROCEEDING.

(a) In a custody proceeding, any individual ~~or organization~~ appointed pursuant to this [act], other than a volunteer advocate, is entitled to reasonable fees and expenses in an amount set by the court by reference to the reasonable and customary fees and expenses for similar services in the county of jurisdiction.

(b) The court may:

(1) allocate fees and expenses between the parties in proportion to their ability to pay;

(2) order a reasonable cost deposit to be made at the time the court makes the appointment; and

(3) before the final hearing, order an amount in addition to the amount ordered deposited under paragraph (2) to be paid into an account authorized by the court for the use and benefit of the individual ~~or organization~~ appointed under this [act].

(c) [Except as otherwise authorized by [cite state law], a] [A] court may not award costs, fees, or expenses under this section against the state, a state agency, or a political subdivision of the state.

Comment

In custody proceedings, courts should make clear to all parties how fees will be determined and how and by whom the fees are to be paid. Lawyers and ~~court~~court-appointed advisors, unless functioning as ~~volunteers~~volunteer advocates, should be paid in accordance with prevailing legal standards of reasonableness. This section recognizes that most states do not have public funds available to compensate children’s representatives in custody disputes other than abuse and neglect proceedings. The ordinary approach will be for the court to assess fees against the parties, taking into account significant disparities in ability to pay and awarding fees in proportion to ability to pay. This section recognizes, however, that in some cases public funds will be available under other provisions of state law for fees and expenses in private custody disputes. Courts may also require periodic reporting from appointed representatives regarding their services and fees ~~on an ongoing basis~~.

The award of fees and expenses in all cases should include reasonable ~~expenses~~costs for expert witnesses, investigative services, research, and other activities where the attorney or ~~court~~court-appointed advisor demonstrates to the court that such expenses are necessary to accomplish the objective of the proceeding.

SECTION 21. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this Uniform Act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 22. TRANSITIONAL PROVISION. This [act] applies to proceedings filed on or after [the effective date of this [act].] A proceeding filed before [the effective date of this [act]] is governed by the law in effect when the proceeding was filed, and the former law is continued in effect for that purpose.

SECTION 23. EFFECTIVE DATE. This [act] takes effect on ~~_______________~~__________.

^{^[1]}See Marvin Ventrell, The Practice of Law for Children, 66 Mont. L. Rev. 1 (2005); Barbara Ann Atwood, Representing Children: The Ongoing Search for Clear and Workable Standards, 19 J. AM. ACAD. MATRIM. LAW. 801 (2005). The United Nations Convention on the Rights of the Child, available at 28 I.L.M. 1448 (1989), with its protection of the child’s right of participation under Article 12, has fueled interest in the role of children’s representatives in many of the nations that have ratified the Convention.

^{^[2]}The American Bar Association authorized the National Association of Counsel for Children (NACC) to award legal specialty certification in child welfare law in 2004.

^{^[3]}For a thoughtful ~~explorations of all~~exploration of these issues, see JEAN KOH PETERS, REPRESENTING

CHILDREN IN CHILD PROTECTIVE PROCEEDINGS: ETHICAL AND PRACTICAL DIMENSIONS (2d ed.

2001). In Professor Peters’s view, an attorney should develop a relationship with a child

over time and interpret the child’s wishes in the context of the child’s individualized circumstances. Another comprehensive analysis of the legal and ethical issues involved in representing children is Ann M. Haralambie, The Child’s Attorney (1993). Haralambie proposes that children’s attorneys should advocate the child’s wishes unless they are potentially harmful to the child but should request appointment of a guardian ad litem where the child’s wishes are deemed ~~unreasonable~~dangerous. She also ~~notes~~emphasizes that ethical dilemmas can be minimized or eliminated if children’s attorneys spend significant time advising their clients. If children’s positions are deemed unreasonable, Haralambie urges lawyers to explain tothe situation to the children ~~why their positions are unreasonable~~ and counsel them about alternatives. See also Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 FORDHAM L. REV. 1655 (1996)(exploring ways in which lawyers can redefine their role vis a vis the child client); Catherine Ross, From Vulnerability to Voice, 64 FORDHAM L. REV. 1579 (1996)(advocating mandatory appointment of independent counsel for children in high conflict divorces); Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399 (1996)(advocating that a child’s lawyer should focus on enforcing the child’s legal rights rather than on carrying out the child’s expressed objectives). For an insightful examination of the child’s limited capacity to direct counsel, see Emily Buss, Confronting Developmental Barriers to the Empowerment of Child Clients, 84 CORNELL L. REV. 895 (1999).

^{^[4]}American Academy of Matrimonial Lawyers Standards for Attorneys and Guardians Ad Litem in Custody or Visitation Proceedings, 13 J. AM. ACAD. MATRIM. LAW 1 (1995). For a

critique of the AAML approach, see Ann M. Haralambie & Deborah L. Glaser, Practical and

Theoretical Problems with the AAML Standards for Representing “Impaired” Children, 13 J.

Am. Acad. Matrim. Law. 57 (1995).

^{^[5]}American Bar Association, Proposed Standards of Practice for Lawyers Who Represent

Children in Abuse and Neglect Cases, 29 FAM. L. Q. 375 (1995) (Abuse and Neglect Standards).

^{^[6]}Marvin Ventrell, Legal Representation of Children in Dependency Court: Toward a Better Model–The ABA (NACC Revised) Standards of Practice, NACC Children’s Law Manual Series (1999). The NACC has also developed a list of overarching duties of all children’s lawyers, regardless of the precise role of the lawyer. See NACC Recommendations for Representation of Children in Abuse and Neglect Cases (2001).

^{^[7]}Recommendations of the Conference on Ethical issues in the Legal Representation of 4

Children, 64 FORDHAM L. REV. 1301 (1996)(Fordham Recommendations)(attorney must follow

child’s expressed preferences and attempt to discern wishes in context in developmentally

appropriate way if child is incapable of expressing viewpoint).

^{^[8]}American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002).

^{^[10]}American Bar Association, Standards of Practice for Lawyers Representing Children in

Custody Cases, 37 FAM. L. Q. 129 (2003).

^{^[11]}See Marvin Ventrell, Legal Representation of Children in Dependency Court: Toward a

Better Model – The ABA (NACC Revised) Standards of Practice (1999)(reporting that

attorney/GAL and traditional attorney are models that have dominated representation of

children).

^{^[12]}See 42 U.S.C. § 5106a(b)(2)(A)(xiii) (2000), which requires states to have “provisions and procedures in every case involving an abused or neglected child which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings–(I) to obtain first-hand, a clear understanding of the situation and needs of the child; and (II) to make recommendations to the court concerning the best interests of the child.”

^{^[13]}See Howard A. Davidson, Child Protection Policy and Practice at Century’s End, 33 Fam. L. Q. 765, 768-69 (1999).

^{^[14]}Section 310 of the Uniform Marriage and Divorce Act, for example, provides for the discretionary appointment of counsel for a child. Revealing the blurring of professional lines, the Comment explains that “[t]he attorney is not a guardian ad litem for the child, but an advocate whose roles is to represent the child’s interests.”

^{^[15]}Recognizing the need for legal representation for children in abuse and neglect proceedings, a federal district court held that appointment of counsel was required as a matter of procedural due process under the Georgia Constitution. See Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005). Moreover, federalFederal law has long authorized the discretionary appointment of counsel for Indian children subject to the Indian Child Welfare Act. See 25 U.S.C. § 1912(b).

^{^[16]}See Survey of State Laws on Representation of Children in Abuse and Neglect Cases, Appendix A.

^{^[17]}See Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005) (every child in foster care entitled to appointed counsel as matter of procedural due process under Georgia state constitution.). Significantly, the Georgia constitutional provision tracks the federal Due Process Clause, and the court relied on interpretations of the federal Constitution in its analysis.

^{^[18]}The Act rejects the ~~dual role~~hybrid category because it has given rise to a blurring of professional roles where, for example, the same individual functions both as an attorney for the child and a witness in the proceeding. See Rule 3.7, A.B.A. Model Rules of Professional Conduct (2002) (generally prohibiting attorney from acting as advocate and witness in same proceeding). In addition, problems have arisen with the dual role approach because of ethical constraints that are inherent in the attorney/client relationship, including in particular the confidentiality of client communications. For a court’s recognition of the tensions inherent in the hybrid attorney/guardian ad litem, see Clark v. Alexander, 953 P.2d 145 (Wyo. 1998).

^{^[19]}Model Rule 1.14 of the ABA Model Rules of Professional Conduct provides useful guidance in representing a client with diminished capacity. A helpful exploration of ethical issues facing a child’s attorney can be found in Jennifer L. Renne, Legal Ethics in Child Welfare Cases (ABA 2004).

^{^[20]}~~In the design of the Act, states may choose to prohibit the appointment of a best interests attorney for a child who already has a child’s attorney.~~ See Sections 12 and 13 and Commentary.

^{^[21]}The Court Appointed Special Advocate is a lay volunteer who advocates as a non-lawyer on behalf of a child in child abuse and neglect proceedings. CASAs generally are screened and trained at the local level but all CASA programs that are affiliated with the National Court Appointed Special Advocate Association must comply with the standards issued by that organization. See www.nationalcasa.org. In addition, many states have established their own standards to ensure that the volunteers representing children are competent and possess relevant training and experience.

^{^[22]}See 42 U.S.C. § 5106a(b)(2)(A)(xiii), quoted supra at note 9.