D R A F T

FOR APPROVAL

UNIFORM REPRESENTATION OF CHILDREN IN

ABUSE, NEGLECT, AND CUSTODY

PROCEEDINGS ACT

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

MEETING IN ITS ONE-HUNDRED-AND-FIFTEENTH YEAR

HILTON HEAD, SOUTH CAROLINA

JULY 7-14, 2006

UNIFORM REPRESENTATION OF CHILDREN IN

ABUSE, NEGLECT, AND CUSTODY

PROCEEDINGS ACT

WITH PREFATORY NOTE AND PRELIMINARY COMMENTS

Copyright ©2006

By

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.

DRAFTING COMMITTEE ON UNIFORM REPRESENTATION OF CHILDREN IN ABUSE, NEGLECT, AND CUSTODY PROCEEDINGS ACT

The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this Act consists of the following individuals:

RHODA B. BILLINGS, 5525 Williams Rd., Lewisville, NC 27023, Chair

DAVID A. GIBSON, P.O. Box 1767, Brattleboro, VT 05302

PAUL M. KURTZ, University of Georgia School of Law, Athens, GA 30602-6012

DEBRA H. LEHRMANN, 200 E. Weatherford St., 4th Floor, Fort Worth, TX 76196-0282

ROBERT L. MCCURLEY, JR., Alabama Law Institute, P.O. Box 861425, Tuscaloosa, AL

            35486

CISCO MCSORLEY, 3205 Berkeley Place NE, Albuquerque, NM 87106

M. GAY TAYLOR, Office of Legislative Research & General Counsel, Utah State Capitol Complex, W210 House Bldg., Salt Lake City, UT 84114-5210

HARRY L. TINDALL, 1300 Post Oak Blvd., Suite 1550, Houston, TX 77056-3081

CAM WARD, P.O. Box 1749, Alabaster, AL 35007

BARBARA ANN ATWOOD, University of Arizona James E. Rogers College of Law, P.O. Box 210176, Tucson, AZ 85721-0176, Reporter

EX OFFICIO

HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President

LEVI J. BENTON, State of Texas, 201 Caroline, 13th Floor, Houston, TX 77002, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

ANN M. HARALAMBIE, 3499 N. Campbell Ave., Suite 901, Tucson, AZ 85719-2376, American Bar Association Advisor

HOWARD DAVIDSON, 740 15^th St. NW, 9^th Floor, Washington, DC 20005, American Bar Association Section Advisor

EXECUTIVE DIRECTOR

WILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL

            35487-0382, Executive Director

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS

211 E. Ontario Street, Suite 1300

Chicago, Illinois 60611

312/915-0195

www.nccusl.org

UNIFORM REPRESENTATION OF CHILDREN IN ABUSE, NEGLECT, AND CUSTODY PROCEEDINGS ACT

TABLE OF CONTENTS

Prefatory Note

SECTION 1. SHORT TITLE

SECTION 2. DEFINITIONS

SECTION 3. APPLICABILITY AND RELATIONSHIP TO OTHER LAW

SECTION 4. MANDATORY APPOINTMENT IN ABUSE OR NEGLECT

            PROCEEDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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

SECTION 6. DISCRETIONARY APPOINTMENT IN CUSTODY PROCEEDING

SECTION 7. QUALIFICATIONS OF CHILD’S ATTORNEY OR BEST INTERESTS ATTORNEY

SECTION 8. COURT-APPOINTED ADVISOR: QUALIFICATIONS AND

            LIMITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

SECTION 9. ORDER OF APPOINTMENT

SECTION 10. DURATION OF APPOINTMENT

SECTION 11. COMMON DUTIES OF CHILD’S ATTORNEY AND BEST

            INTERESTS ATTORNEY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

SECTION 12. SEPARATE DUTIES OF CHILD’S ATTORNEY

SECTION 13. SEPARATE DUTIES OF BEST INTERESTS ATTORNEY

SECTION 14. DUTIES OF COURT-APPOINTED ADVISOR

SECTION 15. ACCESS TO CHILD AND INFORMATION RELATING TO CHILD

SECTION 16. PARTICIPATION IN PROCEEDING

SECTION 17. ATTORNEY WORK PRODUCT AND TESTIMONY

SECTION 18. CHILD’S RIGHT OF ACTION

SECTION 19. FEES AND EXPENSES IN ABUSE OR NEGLECT PROCEEDING

SECTION 20. FEES AND EXPENSES IN CUSTODY PROCEEDING

SECTION 21. UNIFORMITY OF APPLICATION AND CONSTRUCTION

SECTION 22. REPEALS

SECTION 23. EFFECTIVE DATE

UNIFORM REPRESENTATION OF CHILDREN IN ABUSE, NEGLECT, AND CUSTODY PROCEEDINGS ACT

Prefatory Note

            The legal representation of children is a rapidly developing professional field, one that has received increased attention in the United States and elsewhere in the last several decades. It has become a recognized area of practice, and child welfare law has been designated by the American Bar Association as a legal specialty. Nevertheless, the role of lawyers representing children in court proceedings directly affecting their lives, such as abuse and neglect or custody proceedings, remains a subject of intense debate. Disagreements focus on such fundamental questions as when courts should appoint counsel for children, how a lawyer should represent a child who lacks capacity to direct counsel, and, for children who do have such capacity, whether a lawyer should advocate the child’s wishes even if the lawyer believes the child’s goals are not in the child’s best interests.

            Several competing proposals have emerged that address the important topic of representation of children in abuse and neglect proceedings and in custody proceedings. In 1994, the American Academy of Matrimonial Lawyers adopted a set of standards primarily for the divorce context under which lawyers are to advocate the wishes of the “unimpaired” child but can act only as a conduit of information for the “impaired” child. In 1995, the Family Law Section of the American Bar Association proposed a contrasting set of Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (“ABA Abuse and Neglect Standards”), taking a different approach to the question of children’s competence to direct representation. Under those standards, which were adopted by the ABA in 1996, a lawyer should advocate the child’s articulated preference, but if a child will not or does not express a preference, the lawyer should advocate the child’s legal interests determined by objective criteria. The ABA Abuse and Neglect Standards take the position that a child’s disability as a result of immaturity is incremental and issue-specific. The National Association of Counsel for Children issued its own revised version of the ABA Standards in which it endorsed most of the ABA guidelines but proposed an exception to traditional representation where the child’s wishes may be seriously injurious to the child. Emphasizing the counseling function of the child’s lawyer, the NACC Revised Standards caution that the child’s lawyer does not owe “robotic allegiance” to each of the child’s directives.

            A conference on the representation of children was held at Fordham Law School in 1995 entitled Ethical Issues in the Legal Representation of Children. This conference examined the principles set out in the then-proposed standards promulgated by the ABA and recommended various refinements that derive from the contextual nature of the relationship between an attorney and a child client. The Fordham recommendations direct lawyers to ascertain the child’s perspective by understanding the child’s world. The American Law Institute added its views in 2002 with the publication of the Principles of the Law of Family Dissolution. The ALI recommends that courts be given broad discretion in private custody disputes to appoint either a guardian with investigatory or advocacy capacity or a lawyer for the child if the child is competent to direct the terms of the representation. Most recently, the ABA returned to the same questions in the context of child custody proceedings and in 2003 adopted Standards of Practice for Lawyers Representing Children in Custody Cases (ABA Custody Standards). The ABA Custody Standards identify two distinct roles for attorneys who represent children: the “child’s attorney,” who is in a traditional attorney-client relationship, and the “best interests attorney,” who advocates a position that the attorney determines to be in the child’s best interests. The Custody Standards explicitly reject the hybrid attorney/guardian ad litem model because of the confusion and ethical tensions inherent in the blended professional roles.

            State laws vary dramatically on the appointment of representatives for children, with some states emphasizing the unique vulnerability of children and children’s need for adult protection and guardianship to determine their interests, while other states affirm a child’s right to have his or her wishes presented by a zealous advocate. In the abuse and neglect context, the federal Child Abuse Prevention and Treatment Act (CAPTA) requires the appointment of a guardian ad litem for a child, but the role and identity of that representative are largely undefined. In response to CAPTA, almost all states now require some form of child representation in abuse and neglect proceedings, but the role of the representative ranges from lay guardian to legal counsel. Many states routinely appoint lawyers to function as guardians ad litem, without careful delineation of the distinctions between the ethical responsibilities of a lawyer to the client and the professional obligations of the lay guardian ad litem as a best interests witness for the court. In the custody context outside of child protective proceedings, states have even fewer guidelines about the appointment of representatives for children. Typically, state law simply authorizes the appointment of counsel or guardian ad litem as a matter of judicial discretion.

            In light of the disagreements among the various professional organizations committed to child advocacy and the marked variation in approaches across the United States, the National Conference of Commissioners on Uniform State Laws concluded that this important area could benefit significantly from a uniform law. The Conference concluded that a uniform act would enhance the quality and professionalism of children’s representatives in the areas of abuse and neglect and custody and ultimately would protect the interests of children nationwide.

            The proposed Act seeks to improve the representation of children in proceedings directly affecting their custody by clearly defining the roles and responsibilities of children’s representatives and by providing guidelines to courts in appointing representatives. The Act not only integrates the two sets of standards promulgated by the ABA – the Abuse and Neglect Standards and the Custody Standards – but it also addresses the role of the non-lawyer representative, denominated a “court-appointed advisor” under the Act in order to avoid the confusion generated by the term “guardian ad litem.” The new term, however, applies only in the proceedings governed by this Act and is not intended to alter the practice of appointing guardians ad litem in other contexts. By its inclusive nature, the Act provides standards that differentiate among the various representatives while indicating where certain core duties are shared by all categories of children’s representatives. These objectives are implemented through the definitions set out in Section 2, the standards for the appointment of counsel and court-appointed advisors in Sections 4-6, the qualifications of counsel and court-appointed advisors in Sections 7 and 8, the provisions governing orders of appointment in Sections 9 and 10, the description of core duties and powers in Sections 12-17, and the recognition of qualified immunity for certain representatives under Section 18. Finally, fees and expenses are addressed in Sections 19 and 20.

            The Act provides for two categories of lawyers for children–the child’s attorney and the best interests attorney–and does not endorse the hybrid category of attorney/guardian ad litem. The child’s attorney is in a traditional attorney-client relationship with the child and is

therefore under traditional ethical limitations governing that relationship. Under the Act, the child’s attorney remains a client-directed representative and should function within that role rather than advocating for what the lawyer believes to be in the child’s best interests. The Act authorizes, however, a limited exercise of substituted judgment by the child’s attorney. Under Section 12, when the child is incapable of directing or refuses to direct representation as to a particular issue, the child’s attorney may take a position that is in the child’s best interests so long as the position is not in conflict with the child’s expressed objectives. The child’s attorney may also request appointment of a court-appointed advisor. In contrast, if a child’s expressed goals would put the child at risk of substantial harm and the child persists in that position despite the attorney’s advice and counsel, the attorney must request a court-appointed advisor for the child or withdraw from representation and request the appointment of a best interests attorney. Thus, the Act provides mechanisms to protect the attorney-client relationship while still ensuring that evidence of potential harm to the child will be brought to the attention of the court.

            The best interests attorney, in contrast, has the substantive responsibility of advocating for the child’s best interests while still remaining in the professional role of an attorney. Under Section 13, the best interests attorney is expected to advocate for a resolution of the proceeding that is consistent with the child’s best interests “according to criteria established by law.” In other words, the best interests attorney should adhere to established legal standards rather than the attorney’s subjective bias. Unlike the child’s attorney, the best interests attorney is not bound by the client’s expressed objectives, but neither should the best interests attorney disregard the child’s preferences. Instead, the best interests attorney has a duty to take into account the child’s objectives and the reasoning underlying those objectives, in light of the child’s developmental level, in determining what to advocate. In other respects, the best interests attorney is a traditional lawyer for the child and remains under the general duties of representation spelled out in Section 11, including the presentation of the child’s expressed objectives to the court if the child so desires. Under the Act, the ethical precepts governing a lawyer-client relationship apply to the best interests attorney’s relationship with the child unless the Act provides an express exception. Thus, the best interests attorney may not disclose the child’s confidential communications unless otherwise permitted to do so under applicable ethical standards. The best interests attorney, however, may use the child’s confidences for purposes of the representation.

            The third category of representative addressed in the Act is the court-appointed advisor whose role is to assist the court in determining the child’s best interests. The court-appointed advisor’s responsibilities include investigation of the case and, where appropriate, making a recommendation to the court. See Section 14. The Act makes clear that the court-appointed advisor may not perform acts that would be restricted to a licensed attorney, even if the person functioning as court-appointed advisor holds a license to practice law. The Act also endorses the widespread use of Court Appointed Special Advocates (CASAs) to fulfill the role of court-appointed advisor.  

            An important premise underlying the Act is that an attorney should be appointed for every child who is the subject of an abuse or neglect proceeding, and Section 4 requires the appointment of either a child’s attorney or a best interests attorney in such cases. In abuse or neglect cases, as defined in the Act, court orders may effectively determine a child’s future, including whether the child will remain in his or her home, the nature and duration of any placement outside the home, the child’s contact with parents and other relatives, and the child’s access to social services. The requirement of appointed counsel rests on the recognition that children’s interests in these proceedings are of fundamental importance. The ABA has long advocated the mandatory appointment of attorneys for children in abuse and neglect proceedings whether or not a guardian ad litem has been appointed. Although the role of counsel may vary depending on the developmental level of the child and other factors, legal representation for children can ensure that court orders are based on an accurate, informed, and sensitive assessment of the child’s circumstances.

            The mandate for appointment of an attorney for every child in an abuse or neglect proceeding is consistent with trends across the United States. Currently, more than half the states require the appointment of an attorney or an attorney/guardian ad litem, and more than three-fourths of the states regularly appoint attorneys for children as a matter of practice whether or not required by state law. Moreover, at least one federal district court has held that appointment of counsel for every child in the state foster care system is constitutionally required as a matter of procedural due process. Although the mandate of this Act may impose additional financial costs on those few states that do not currently provide for legal representation for children in abuse and neglect cases, the drafters of the Act believe that the profound benefit to children and overall society of an improved child welfare system outweighs those monetary costs.

            The mandate for appointment of an attorney for a child also has implications for a state’s compliance with federal law. Under CAPTA, states must appoint a “guardian ad litem” for children in abuse and neglect proceedings as a condition of receiving federal CAPTA funding, and the statute expressly permits the guardian to be a lawyer. The statutory role of that appointed representative is to carry out a thorough investigation and “to make recommendations to the court concerning the best interests of the child.” The appointment of a best interests attorney presumably would satisfy the CAPTA requirement in light of the best interest attorney’s role as defined in Section 13. A child’s attorney might also satisfy the CAPTA mandate, since representation by a child’s attorney will promote the child’s best interests. Nevertheless, some states may choose to require a court-appointed advisor if the attorney appointed for the child is not a best interests attorney. For that reason, the Act provides two alternative approaches to permit states to choose whether to mandate such an additional appointment. See Section 5 and Comment. Under the first alternative in Section 5, the appointment of a court-appointed advisor is required unless the attorney appointed for the child is a best interests attorney. In contrast, under the second alternative, the appointment of a court-appointed advisor is discretionary when either a child’s attorney or a best interests attorney has been appointed for the child in an abuse or neglect proceeding.

            In custody proceedings, the Act leaves to judicial discretion the question of appointing a child’s representative. There are significant benefits to appointing a representative for a child when the court has a special need for assistance and information in determining the child’s best interests. Moreover, when a child has expressed a viewpoint and desires an advocate, the appointment of counsel may be particularly appropriate. At the same time, the appointment of aa representative for the child in some circumstances may exacerbate acrimony between the parties and might unduly burden the parties’ financial resources. Thus, the court should consider the child’s interests, the court’s needs, and the financial burden on the parties before making an appointment. Section 6 provides a list of factors that may suggest a particularized need for the appointment of a representative, but the decision of whether to appoint a representative in any given context remains within the court’s discretion.

            While the Act sets out basic guidelines for the appointment and role of attorneys and court-appointed advisors, states can provide more detailed guidelines through separate standards of practice. Standards in effect in many states address ethical concerns, specific training and experience requirements, and other professional issues facing children’s representatives that are beyond the scope of this Act.

UNIFORM REPRESENTATION OF CHILDREN IN ABUSE, NEGLECT, AND CUSTODY PROCEEDINGS ACT

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

            SECTION 2. DEFINITIONS. In this [act]:

            (1) “Abuse or 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 who provides legal representation for a child to protect the child’s best interests without being bound by the child’s directives or objectives.

            (3) “Child’s attorney” means an attorney who provides legal representation for a child.

            (4) “Court-appointed advisor” means an individual, not functioning as an attorney, appointed to assist the court in determining the best interests of a child.

            (5) “Custody proceeding” means a court proceeding other than an abuse or neglect proceeding in which legal or physical custody of, access to, or visitation or parenting time with a child is at issue. The term does not include a proceeding initiated against a child for [adjudication of delinquency or status offense under [cite statute]].

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

Comment

            The definitions in the Act parallel the categories of attorneys for children that are set forth in the ABA Custody Standards: child’s attorney and best interests attorney. This Act also recognizes a representative in the nature of a guardian ad litem, but the Act uses the new term “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 representation to a child but is not bound by the child’s directives.

            The “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-appointed advisors are not to function as attorneys. Instead, a 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 hybrid role of attorney/guardian ad litem employed in numerous states.

            “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 performs the same duties of representation that are performed by the child’s attorney. See Sections 11 and 13. Some jurisdictions have authorized attorneys functioning in the same capacity as best interest attorneys but have denominated them differently. See, e.g., Vernon’s Tex. Code Ann. Family Code § 107.021 (amicus attorney).

            While the attorney definitions are broadly framed in this section, the Act’s requirements expressly apply to court-appointed attorneys and court-appointed advisors for children in abuse or neglect 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 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 or 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 court proceedings in which the child’s legal or physical custody is at issue, such as divorce or dissolution, separation, determination of parentage, adoption, private guardianship, or protection from domestic violence or harassment. Mental health civil commitment proceedings that affect the child’s physical and legal custody may also qualify as custody proceedings.

             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 or neglect proceeding (ordinarily entailing a transfer to juvenile court), then this Act’s terms regarding abuse or neglect proceedings–including, in particular, the mandatory appointment of counsel for the child–will govern. In some states a custody case can be referred to juvenile court for investigative purposes. Such a referral would not in itself transform the proceeding into an abuse or neglect proceeding unless a dependency petition were filed as a result of the referral.

            SECTION 3. APPLICABILITY AND RELATIONSHIP TO OTHER LAW.

            (a) This [act] applies to an abuse or neglect or custody proceeding [pending on or] commenced on or after [the effective date of this [act]].

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

Comment

            This Act applies to all abuse or neglect and custody proceedings filed on or after the effective date. A state may wish to apply the Act to proceedings that are pending on the effective date as well, in order to make the benefits of the Act immediately available to children who are the subject of ongoing abuse, neglect, or custody proceedings. In that event, the state should adopt the bracketed reference to pending proceedings.

            The Act is not intended to affect children’s rights recognized under other 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) (consent of child older than twelve required for adoption). 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 or 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 or 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.

            State law varies on children’s procedural status in abuse or neglect and custody proceedings. In several states, children are viewed as parties to abuse or 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 other states, children are non-parties whose rights of participation are more limited. In the Matter of Comm’r of Soc. Serv’s on Behalf of 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 S., Jr., 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). On the other hand, in at 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). At the same time, even where children are not viewed as parties they often have many of the rights of parties as a practical matter.

            In addition, this Act may supplement rights already provided by federal law. The Indian Child Welfare Act, for example, 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 or neglect proceeding in state court.

            SECTION 4. MANDATORY APPOINTMENT IN ABUSE OR NEGLECT PROCEEDING.

            (a) In an abuse or 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 may substantially affect the interests of the child.

            (b) In determining whether to appoint a child’s attorney or a best interests attorney, the court may 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.             (d) Neither the child nor a representative of the child, whether or not appointed by the court, may waive representation of the child under this section or Section 5.

Comment

            This section requires the appointment of an attorney for every child who is the subject of an abuse or 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. In abuse or neglect cases, court orders may effectively determine a child’s future life, including family contact and family identity. The appointment of an attorney for the child protects the dignity of the child and helps ensure that the court will make an informed and sensitive decision based on a full understanding of the child’s circumstances. Under subsection (d), the child’s right of representation is not subject to waiver by the child or anyone acting on behalf of the child.

            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)(“CAPTA”). This Act, in contrast, requires the appointment of either a child’s attorney or a best interests attorney for every child involved in an abuse or neglect proceeding. For discussion of how the appointment of a child’s attorney or best interests attorney may meet the requirements of CAPTA, see Comment to Section 5.

            The disjunctive in subsection (a) makes clear that the court may not appoint a child’s attorney and a best interests attorney for the same child at the same time. Dual representation by two lawyers functioning in different roles would likely be confusing to the child and could result in the lawyers taking different positions in court for the same child client. Although the same child may have both an attorney and a court-appointed advisor, that form of dual representation does not pose the same tensions as would representation by two competing lawyers.

            The Act leaves the choice between a best interests attorney or a child’s attorney to judicial discretion. Because of the exigencies of many abuse and neglect proceedings, courts often must act quickly in appointing attorneys for children. For practical purposes, judges who lack detailed information about a child’s circumstances may need to use the child’s age as a rough measure for purposes of the initial designation of an attorney’s role. Ordinarily, a child’s attorney would be appropriate for an older child capable of exercising considered judgment, while a best interests attorney would be appropriate for a nonverbal or very young child incapable of expressing a considered choice about issues that are relevant to the proceeding.

            Nevertheless, a child’s capacity to direct counsel is contextual and incremental and is not simply a function of chronological age. In determining whether a child is capable of directing an attorney, the court should focus on the child’s decision-making process rather than the child’s choices themselves, and the court’s determination should be informed by insights drawn from child development science. Moreover, because of the evolving nature of children’s competencies, a child for whom a best interests lawyer is appropriate in one proceeding may have matured sufficiently to warrant the appointment of a child’s attorney at a later proceeding. 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, joint representation would be inappropriate. If a conflict arises, the attorney should take action required by the rules of professional conduct. 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 or neglect proceeding. Continuity in representation is particularly important in building the child’s trust, 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 or 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 or 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-APPOINTED ADVISOR IN ABUSE OR NEGLECT PROCEEDING.

Alternative A

            (a) In an abuse or neglect proceeding:

                        (1) if the court does not appoint a best interests attorney, the court shall appoint a court-appointed advisor before the first court hearing that may substantially affect the interests of the child; or

                        (2) if the court appoints 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 best interests of the child.

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

            (c) If the court determines to make an appointment under subsection (a)(2), the court shall make the appointment as soon as practicable.

Alternative B

            (a) In an abuse or neglect proceeding, whether the court appoints 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.

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

            (c) If the court determines to make an appointment under subsection (a), the court shall make the appointment as soon as practicable.

End of Alternatives

Legislative Note: States that want to mandate a court-appointed advisor when a best interests attorney has not been appointed under Section 4 should adopt Alternative A of this section. States wanting to leave the matter to judicial discretion should adopt Alternative B.

Comment

            This section 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 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 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)(“CAPTA”). See Comment to Section 4. 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. While some states view either a best interests attorney or a child’s attorney as fulfilling CAPTA’s guardian ad litem requirement, other states may interpret CAPTA more narrowly. For those states that interpret CAPTA to always mandate a best interests advocate, Alternative A requires a court-appointed advisor unless the court has already appointed a best interests attorney. Alternative B, on the other hand, would be appropriate for those states that view CAPTA’s requirement 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: 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. 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 expressed objectives will subject the child to a risk of substantial harm. See Section 12. For these reasons, under the second bracketed option, the appointment of a court-appointed advisor is discretionary when either a child’s attorney or a best interests attorney has been appointed in an abuse or neglect proceeding. 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) In a custody proceeding, the court, on its own 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-appointed advisor. An appointment may be made at any stage of the proceeding and must designate the role of the appointee.

            (b) In determining whether an appointment is appropriate, the court shall consider the circumstances and needs of the child, the court’s need for information and assistance, the financial burden on the parties and the cost of available alternatives for resolving the issues in the proceeding, and any factors indicating a particularized need for representation, including:

                        (1) any desire for a representative expressed by the child;

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

                        (3) the likelihood that the child will be called as a witness or be questioned by the court in chambers and the need to minimize harm to the child from the processes of litigation;

                        (4) any level of acrimony that indicates a lack of objectivity of the parties regarding the needs of the child;

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

                        (6) the likelihood of a geographic relocation of the child that could substantially reduce the child’s time with a parent, sibling, or other individual with whom the child has a close relationship;

                        (7) credible allegations or evidence of conduct by a party or an individual with whom a party associates that raises serious concerns for the safety of the child during periods of custody, visitation, or parenting time with that party;

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

                        (9) any dispute as to paternity.

            (c) In determining which category of representative, if any, is appropriate under subsection (a), 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, the value of an independent advocate for the child’s best interests, and the value of a court-appointed advisor’s expertise.

Comment

            This section leaves the appointment of an attorney or 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 under certain circumstances. 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. 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 the harmful collateral effects of litigation.

            The introductory paragraph of subsection (b) identifies general considerations that courts should take into account in determining whether to appoint a 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 and should guide the court’s discretion. Where issues involving parentage, relocation, or custodial interference are raised, the appointment of a representative for the child may be helpful to the court in resolving the underlying legal and factual questions. In circumstances where a parent’s conduct poses a risk of harm to the child, such as evidence of domestic violence, child abuse, or substance abuse, the appointment of an independent representative for the child may be necessary for the court to reliably determine the evidentiary issues in the case. Indeed, in some jurisdictions, family courts may refer custody proceedings to the juvenile court for investigation of allegations of abuse or neglect. In that circumstance, even if the case does not ultimately become an abuse or neglect proceeding, the appointment of a representative for the child could assist the court in determining the accuracy of the allegations.

            The determination of which category of representative to appoint is addressed in subsection (c). The decision to appoint a child’s attorney, best interests attorney, or court-appointed advisor 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-appointed advisor may be particularly helpful, while in other cases involving older children with defined views, a child’s attorney may be appropriate. In contrast, a preverbal child in the middle of a bitter and protracted custody dispute may need representation through a best interests attorney.

            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 additional voice in the proceeding. This section also 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 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 children’s representatives in this important realm.

            SECTION 7. 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 [insert reference to source of standards]].

Legislative Note: States that adopt training standards and standards of practice for children’s attorneys and best interests attorneys should insert a reference to the state laws, court rules, or administrative guidelines containing those standards in the bracketed portion of this section.

Comment

            All court-appointed attorneys for children, whether in the role 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 or other regulatory agency. 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, children’s health care, educational policy, and other pertinent areas. Relevant law includes such statutes as the Child Abuse Prevention and Treatment Act (“CAPTA”), Pub. L. 93-247, 88 Stat. 4 (codified at 42 U.S.C. §§ 5101-5116); the Adoption and Safe Families Act, Pub. L. No. 105-89, 111 Stat. 2115 (codified at scattered sections of 42 U.S.C.); the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g) (commonly referred to as “Buckley Amendment”); the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (codified at scattered sections of 29 U.S.C. and 42 U.S.C.); and the Indian Child Welfare Act, Pub. L. No. 95-608, 92 Stat. 3071 (codified at 25 U.S.C. §§ 1901-63). Significantly, in cases involving abused or neglected children, the 2003 amendments to CAPTA require that guardians ad litem, including attorneys and court appointed special advocates, receive training appropriate to their roles. See 42 U.S.C. § 5106a(b)(2)(A)(xiii).

            In addition, children’s lawyers should have knowledge of child development and child psychology, the dynamics of child abuse or neglect, 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 and children’s identities. 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 revisions of 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 as 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 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 lawyer represent no more than 100 children in abuse or neglect proceedings at a time. See Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353, 1362 (N.D. Ga. 2005)(citing testimony of Marvin Ventrell, NACC Executive Director).

            SECTION 8. COURT-APPOINTED ADVISOR: QUALIFICATIONS AND LIMITATIONS.

            (a) The court may appoint as court-appointed advisor 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 [insert reference to standards]].

            (b) An attorney appointed as court-appointed advisor may take only those actions that may be taken by a court-appointed advisor who is not an attorney.

            (c) The appointment of a court-appointed advisor does not create an attorney-client, therapist-patient, or other professional relationship between the advisor and the child unless such a relationship is expressly established in the order of appointment.

Legislative Note: States that adopt training standards and standards of practice for court-appointed advisors should insert a reference to the state laws, court rules, or administrative guidelines containing those standards in the bracketed portion of this section.

Comment

            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 relevant to abuse, neglect, and custody proceedings.

            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.

            This section makes clear that if the court appoints an attorney to function as court-appointed advisor, that person is not to function as an attorney in the proceeding. The Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii) (2000)(“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 CAPTA may permit an attorney guardian ad litem to serve as an attorney, under this Act an attorney appointed as court-appointed advisor is not appointed to serve as an attorney and should function only as a non-lawyer.

            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-appointed advisor does not in itself create a therapist-patient relationship or other professional relationship between the court-appointed advisor and the child. Thus, unless the order of appointment expressly states otherwise, a child’s communications with a court-appointed advisor appointed under this Act are not privileged.

            SECTION 9. ORDER OF APPOINTMENT.

            (a) Subject to subsection (b), an order of appointment of a child’s attorney, best interests attorney, or court-appointed advisor must be in a record, identify the individual who will act as the child’s representative, and clearly set forth the terms of the appointment, including the grounds for and duration of the appointment, rights of access as provided under Section 15, and applicable terms of compensation.

            (b) In the order of appointment under subsection (a), the court may identify a private organization or governmental program through which a representative for the child will be provided. 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 practicable, at which time the court shall amend the order of appointment to identify the designated individual as the child’s representative.

            (c) 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).

Comment

            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 must be in writing and 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 scope of the representative’s responsibilities, and it 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 or neglect proceeding. If this occurs, the designated organization or program must promptly 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 for purposes of the representation under Section 13, a conversion of a child’s attorney into a best interests attorney might compromise the child’s confidences.

            SECTION 10. DURATION OF APPOINTMENT.

            (a) In an abuse or 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.

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-appointed advisor who has been representing a child from the beginning of an abuse or 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.

            Under this section, the appointment of a representative in an abuse or 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 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” within the meaning of this section. Indeed, in the latter situation, 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.

            An appointment in a custody case continues for the term provided in the order of appointment, since the 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.

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

Alternative A

            (a) A child’s attorney or best interests attorney shall participate in the proceeding to the full extent necessary to represent the child.

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

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

                        (2) consulting with any court-appointed advisor for the child;

                        (3) 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) 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) 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) taking action the attorney considers appropriate to expedite the proceeding and the resolution of contested issues; and

                        (8) when the attorney considers appropriate, encouraging settlement and the use of alternative forms of dispute resolution and participating in such processes to the extent permitted under the law of this state.

Alternative B

            The common duties of the child’s attorney and best interests attorney are set forth in [insert reference to court rule or administrative guideline].

End of Alternatives

Legislative Note: In states where the duties of attorneys can be prescribed only by court rule or administrative guideline and not by legislative act, the duties listed in Section 11 should be adopted by the appropriate measure and identified in the bracketed portion of this section under Alternative B.

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; 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.

            The child’s attorney and the best interests attorney should encourage settlement and the use of mediation or other alternative dispute resolution mechanisms when the attorney determines that such approaches are appropriate. In weighing such processes, the attorney should consider the child’s circumstances and wishes, the parties’ positions, and any other factor bearing on the benefits and risks of a non-adversarial method of dispute resolution in the particular proceeding. On this issue as well as others, however, the child’s attorney is bound by the child’s expressed objectives under the standard of Section 12.

            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. 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 or 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 or 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. For a detailed enumeration of the pretrial and trial responsibilities for children’s counsel, attorneys should refer to Standards III (F) and (G), ABA Custody Standards.

            SECTION 12. SEPARATE DUTIES OF 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.

Alternative A

            (b) A child’s attorney shall explain the nature of the attorney-client relationship to the child, including the requirements of confidentiality.

            (c) Subject to subsections (d) and (e), once a 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 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-appointed advisor.

            (e) If, despite appropriate legal counseling, the child expresses objectives of representation that the child’s attorney reasonably believes would place the child at risk of substantial harm, the attorney shall 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. The child’s attorney shall not disclose the reasons for requesting a court-appointed advisor or best interests attorney except as permitted by [insert reference to this state’s rules of professional conduct].

Alternative B

            (b) The separate duties of a child’s attorney are set forth in [insert reference to court rule or administrative guideline containing the duties].

End of Alternatives

Legislative Note: In states where the duties of attorneys can be prescribed only by court rule or administrative guideline and not by legislative act, the duties listed in Alternative A should be adopted by the appropriate measure and identified in the bracketed portion of this section under Alternative B.

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 Rule 1.14, ABA Model Rules of Professional Conduct (2002), 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-appointed advisor.

            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 risk of substantial physical, emotional, psychological or other harm and is not merely contrary to the lawyer’s opinion of the child’s interests. 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 directs the child’s attorney to either request the appointment of a court-appointed advisor or to withdraw and request the appointment of a best interests attorney.

            A child’s attorney should not reveal the reason for requesting a court-appointed advisor or withdrawing except as permitted by the state’s ethics rules on confidentiality. 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 Model Rule 1.6(b). Thus, a child’s attorney may reveal the reasons for requesting a court-appointed advisor or best interests attorney only in rare situations where disclosure is necessary 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 submission of reports. In unusual cases, however, a court may need to appoint a court-appointed advisor as well as a lawyer to represent the court-appointed advisor to ensure a full presentation of the 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 Model Rule 3.1; Rule 11, Federal Rules of Civil Procedure. 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. 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 or neglect proceeding, the court must ensure that the child continues to have legal representation in compliance with Section 4. 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. 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. Nevertheless, if a child’s attorney has withdrawn under the circumstances described in the preceding paragraph, the court presumably would appoint a best interests attorney.

            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 or best interests 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. SEPARATE DUTIES OF 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.

Alternative A

            (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.

            (c) If the child desires, the best interests attorney shall present any expressed objectives of the child in the proceeding to the court by a method that is appropriate in light of the purpose of the proceeding and the impact on the child.

            (d) A best interests attorney is not bound by the child’s expressed objectives but shall consider the child’s objectives, the reasons underlying those objectives, and the child’s developmental level, in determining what to advocate.

            (e) A best interests attorney may not disclose or be compelled to disclose information relating to the representation of the child except as permitted by [insert reference to this state’s rules of professional conduct], but the attorney may use such information, including communications received from the child in confidence, for the purpose of performing the duties of a best interests attorney without disclosing that the child was the source of the information.

Alternative B

            (b) The separate duties of the best interests attorney are set forth in [insert reference to rule of court or administrative guideline].

End of Alternatives

Legislative Note: In states where the duties of attorneys can be prescribed only by court rule or administrative guideline and not by legislative act, the duties listed in Alternative A should be adopted by the appropriate measure and identified in this section in the bracketed portion of Alternative B.

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 or 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, 9A U.L.A. 282 (1998).

            The best interests 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. The best interests attorney not only has the duty to inform the court of the child’s expressed wishes if the child so desires, but the attorney must also consider those wishes in determining what to advocate. In other words, the child’s viewpoints are highly relevant to the lawyer’s determination of the child’s best interests. In some cases, the value to the child of having a lawyer champion his or her wishes is itself in the child’s best interests. Often, the attorney’s assessment of the child’s interests will coincide with the child’s wishes, but sometimes they will diverge. When they do diverge, the attorney should help the child understand the attorney’s reasoning through counseling.

            Confidentiality 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 ABA Model Rules of Professional Conduct (2002), Rule 1.6 (barring disclosure of information relating to representation); 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. For example, when a client of diminished capacity is at risk of substantial harm, a lawyer is impliedly authorized “to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.” Model Rule 1.14(c). Thus, under ordinary ethical guidelines, the best interests attorney, like the child’s attorney, may reveal the child’s confidences if necessary to protect the child from harm. 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 a limited inroad on the principle of confidentiality may be necessary to enable the best interests attorney to carry out the purposes of the representation. Under this section, 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 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.

            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 abuses alcohol, the attorney may use that information to determine from independent evidence whether the parent is indeed engaged in alcohol abuse. If the child’s information is corroborated, the attorney may present that separate evidence to the court 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 will remain confidential. At the same time, the attorney should make clear that he or she will advocate for the child’s best interests based on the information available to the attorney.

            The prohibition on disclosure provides a cloak of confidentiality for the child’s communications 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, on the one hand, and the court’s need for a full presentation of evidence in order to reach a disposition in the child’s best interests, on the other.

            SECTION 14. DUTIES OF COURT-APPOINTED ADVISOR. A court-appointed advisor shall:

            (1) within a reasonable time after the appointment:

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

                        (B) investigate the facts relevant to the proceeding to the extent the 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 advisor considers appropriate; and

                        (D) 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 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-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 to the parties and to any attorney for the child copies of any report or other document submitted to the court by the advisor;

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

            (9) perform any specific task directed by the court consistent with the role of court-appointed advisor.

Comment

            This section describes the general function of the court-appointed advisor and makes clear that the court-appointed advisor should explain his or her role to the child in terms the child can understand. The 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-appointed advisor must have access to the child and a reasonable opportunity to interview persons with relevant knowledge of the child, including the parties. In addition, the court-appointed advisor’s investigation ordinarily should include a review of relevant records. To ensure that the 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 the unusual case where the child has both a court-appointed advisor and a lawyer, whether a child’s attorney or a best interests attorney, the court-appointed advisor should make reasonable efforts to notify the lawyer before contacting the child. The lawyer, as the child’s legal representative, has the right to be present during any interview.

            A court-appointed advisor should encourage settlement and the use of mediation or other alternative dispute resolution mechanisms when the advisor determines that such approaches are in the child’s best interests. In weighing such processes, the advisor should consider the child’s circumstances and wishes, the parties’ positions, and any other factor bearing on the benefits and risks of a non-adversarial method of dispute resolution in the particular proceeding.

            In abuse or neglect and custody proceedings, the 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 guardians ad litem 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-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-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-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 51 Minn. Stat. Ann, Guardian Ad Litem, Rule 905(c) (2006); West’s Missouri Court Rules, Rules of Circuit Ct. of Eleventh Judicial Circuit, Rule 22.4 (2006).

            Many states have developed more detailed standards governing the duties of 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 subsections (b) and (c), when the court makes an appointment under this [act], it shall issue an order, with notice to all parties, authorizing the individual appointed to have access to:

                        (1) the child; and

                        (2) confidential information regarding the child, including the child's educational, medical, and mental health records, any agency or court files involving allegations of abuse or neglect of the child, any delinquency records involving the child, and other similar information.

            (b) A child’s record that is privileged or confidential under law other than this [act] may be released to an individual appointed under this [act] only in accordance with that law, including any requirements in that law for notice and opportunity to object to release of records. Information that is privileged under the attorney-client relationship may not be disclosed except as otherwise permitted by law of this state other than this [act].

            (c) An order issued pursuant to subsection (a) must require that a child’s representative maintain the confidentiality of information released except as necessary for the resolution of the issues in the proceeding, and the court may impose any other condition or limitation on an order of access which is required by law, rules of professional conduct, the child’s needs, or the circumstances of the proceeding.

            (d) The custodian of any record regarding the child shall provide access to the record to an individual authorized access by order issued pursuant to subsection (a).

Alternative A

            (e) Subject to subsection (b), an order issued pursuant to subsection (a) takes effect upon issuance.

Alternative B

            (e) An order issued pursuant to subsection (a)(1) takes effect upon issuance. Except as otherwise provided in subsection (g), an order issued pursuant to subsection (a)(2) does not take effect until [10] days after notice of the order has been sent to all parties. The notice must inform the individual to whom it is sent that any objection to the release of records must be filed with the court by a specified date.

            (f) If no objection to an order issued pursuant to subsection (a)(2) is filed with the court by the date specified in the notice, the order takes effect the day after the specified date. If an objection is filed with the court, the court shall conduct a hearing on a priority basis. Any appeal from the court’s order granting or denying access must be processed in accordance with [expedited appellate procedures in other civil cases].

            (g) Subject to subsection (b), if the court finds that immediate access to a specific record is necessary to protect the child from harm, the court shall specify the record in the order issued pursuant to subsection (a)(2) and, as to that record, the order takes effect upon issuance.

End of Alternatives

Comment

            Individuals appointed to represent children under this Act must have access to information regarding the child in order to competently perform their assigned roles. A court order is necessary because the child, as a minor, in general lacks the legal right to grant access to his or her own records. Thus, unlike the lawyer for an adult client, the child’s representative needs the court’s authorization to gain access to the client’s confidential files. Relevant files include those concerning child protective services, juvenile delinquency, medical treatment and mental health care, developmental disabilities, 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.

            In general, the court’s authority to grant the child’s representative access to information about the child, notwithstanding a potential parental objection, derives from the court’s necessary parens patriae role in abuse or neglect and custody proceedings. In these contexts, courts have determined that parents have an inherent conflict of interest and do not have the right to bar access to a child’s confidential records or to block testimony by a child’s doctor based solely on parental authority. See In the Matter of Berg, 886 A.2d 980 (N.H. 2005)(visitation dispute); Attorney Ad Litem for D.K. v. Parents of DK, 780 So.2d 301 (Fla. App. 2001)(custody dispute); In re M.P.S., 342 S.W.2d 277 (Mo. App. 1961)(neglect proceeding).

            Nevertheless, under subsections (b), a child’s records that are privileged or otherwise protected under other state or federal law may be released only if legal requirements are met. For example, 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 (“HIPAA”), codified at scattered sections of 29 U.S.C. and 42 U.S.C., 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. § 164.502 (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. Similarly, if a parent, guardian or other party has the right to object to release of records under other provisions of state or federal law, the order of access must provide for notice and an opportunity to be heard consistent with that law. In some states, older children themselves have standing to object to the disclosure of certain records, such as records of psychiatric counseling, drug treatment, or treatment for sexually transmitted diseases. See, e.g., In the Matter of Berg, 886 A.2d 980 (N. H. 2005); Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301 (Fla. App. 2001). In that circumstance, the custodian of the records may refuse to release the records until the child consents or a court otherwise orders the release consistent with state law. Finally, subsection (b) makes clear that information protected by the attorney-client privilege is not subject to disclosure unless otherwise permitted by applicable law.

            Any order of access must require that the child’s representative maintain the confidentiality of information relating to the child, and the court may impose other conditions on access that are required by law, ethical rules, the child’s needs, or the circumstances of the case. See subsection (c). 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. Conversely, a child’s attorney or best interests attorney has 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.

            This section provide two alternatives for determining the effectiveness of orders of access. Under Alternative A, the order is effective immediately, subject to the requirements of subsection (b). For states selecting Alternative A, children’s representatives will be entitled to prompt access to the child’s confidential records. Under Alternative B, in contrast, this section creates an optional procedure for staying the effectiveness of an order of access to provide an opportunity for parties to object to the release of records. The bracketed option creates a procedure for expedited consideration of objections so as not to unduly delay the representative’s investigation. The time period for filing objections should be as short as is feasible while remaining consistent with local practice, and a suggested time period is 10 days. Under subsection (g), moreover, a court may specify that the order is to take effect upon issuance where there is a showing that immediate access is necessary to protect the child from harm. In states that already have streamlined procedures in place for the prompt release of records, the adoption of the procedures in Alternative B would be unnecessary.

            SECTION 16. PARTICIPATION IN PROCEEDING.

            (a) A child’s attorney, best interests attorney, or court-appointed advisor appointed under this [act] is 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 participate in any appeal that may be filed in the proceeding]; and

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

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

            (c) A 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-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-appointed advisor for a child has an opportunity to testify or, if present at the hearing and available for cross-examination, submit a report setting forth:

                        (1) the advisor’s recommendations regarding the best interests of the child; and

                        (2) the reasons for the advisor’s recommendations.

            (f) A party may call any court-appointed advisor for the child as a witness for the purpose of cross-examination regarding the advisor’s report even if the advisor is not listed as a witness by a party.

            [(g) In a jury trial, disclosure to the jury of the contents of a court-appointed advisor’s report 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-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 or 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-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-appointed advisor may have a duty to submit such recommendations in certain cases. Under this section, however, the advisor’s submission of a report to the court is conditioned on the advisor’s availability for cross-examination.

            The right of a child’s attorney, best interests attorney, or court-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 or neglect 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). The bracketed provision under subsection (a)(2) would be appropriate for states that permit the child through a representative to participate fully on appeal. In such states, the appointed 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. To the extent feasible, courts should ensure continuity of representative on appeal.

            Subsection (c) affirms the principle that court-appointed advisors are not to function as attorneys, even if the person appointed by the court happens to be an attorney. As made clear in Section 2, that limitation has been incorporated in the definition of court-appointed advisor and is integral to this Act’s goal of eliminating the hybrid attorney/guardian ad litem model. On the other hand, under the law of a few states, children’s appointed representatives themselves have party status. See, e.g., 29 Del. Code Ann. § 9007A(b)(3) (attorney guardian ad litem shall be party to child welfare proceeding and shall possess all procedural and substantive rights of a party). If the court-appointed advisor has party status, then that person could engage in courtroom activities as any other unrepresented party, consistent with the law of the particular state. This section is not intended to change such practices. Moreover, this section imposes no limitation on the activities of any attorney appointed or retained to represent a court-appointed advisor.

            Under this section, the court-appointed advisor is subject to cross-examination regarding the advisor’s recommendations to the court. Although the 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. In some states, a guardian ad litem is viewed as an arm of the court and may submit a report to the court in a method not governed by the ordinary rules of evidence. Under subsection (e), the court-appointed advisor may give a report to the court but only if the advisor is present and available for cross examination. The due process rights of the parties require that they receive notice of a court-appointed advisor’s recommendations and opportunity to be heard and to engage in cross examination. See, e.g., In re Marriage of Bates, 819 N.E.2d 714 (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)] Except as authorized by [insert reference to this state’s rules of professional conduct] or court rule, a 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) introduce into evidence a report prepared by the attorney; or

                        (4) testify in court.

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

Legislative Note: Those states that impose a duty on attorneys to report child abuse or neglect should enact subsection (b) to ensure that the reporting duty is not affected by this section’s protection of attorney work product.

Comment

            There is widespread disagreement about the proper function of children’s lawyers in abuse or 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.

            States are split on whether the duty to report child abuse or neglect should apply to attorneys. While most states do not impose the duty to report on attorneys, a substantial minority of states do include attorneys under their reporting statutes. See Maryann Zavez, The Ethical and Moral Considerations Presented by Lawyer/Social Worker Interdisciplinary Collaborations, 5 Whittier J. Child & Fam. Advoc. 191 (2005). For states that do impose such a duty on attorneys, subsection (b) makes clear that the duty to report applies, notwithstanding the other provisions of this section.

            SECTION 18. CHILD’S RIGHT OF ACTION.

            (a) Only the child has a right of action for money damages against a child’s attorney, best interest attorney, or 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-appointed advisor.

            (b) Subject to subsection (a), a [best interests attorney or] court-appointed advisor appointed pursuant to this [act] is not liable for money damages because of inaction or action taken, including any recommendation or opinion given, in the capacity of [best interests attorney or] court-appointed advisor unless the inaction or action taken constituted willful misconduct or gross 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 court-appointed advisors. The provision of qualified immunity is based on the recognition that court-appointed advisors need protection from civil actions for damages when performing functions consistent with their appointed role. Immunity is necessary to ensure that they can fully investigate and formulate opinions and recommendations without fear of retaliation. The threat of litigation from a child client, often fueled by an unhappy parent in the wings, might interfere with the representative’s exercise of judgment and might deter qualified individuals from accepting appointment in the first place. Since courts will often view the court appointed advisor as a source of unbiased and independent assessments of a child’s circumstances, the law should protect such persons from the threat of vindictive lawsuits.

            States vary in the immunity standards provided for persons functioning as court-appointed advisors, most often referred to as “guardians ad litem.” In some states children’s representatives functioning as court-appointed advisors have absolute quasi-judicial 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 dependency proceeding for actions within scope of authority). In other states, guardians ad litem enjoy a qualified immunity and can be held liable for acts that exceed ordinary negligence. The terminology varies, ranging from gross negligence to intentional misconduct and bad faith. The qualified immunity provided in this section gives the best interests attorney and court-appointed advisor adequate protection from suit while still holding them accountable for egregious misconduct. See Ore. Rev. Stat. § 419A.170 (providing qualified immunity to court appointed special advocate for acts in good faith within scope of duties).

            On the other hand, the Act does not provide immunity for persons appointed as a child’s attorney or a best interests attorney. Although a few states have extended qualified 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. 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 some courts have taken a functional approach to the question of immunity and have extended immunity to children’s lawyers where the conduct at issue occurred when the lawyer was functioning as a best interests representative. 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).

            The best interests attorney in some ways combines the functions of a child’s attorney and of a court-appointed advisor. While the best interests attorney may advocate a position that is contrary to the child’s expressed objective, the attorney must perform many aspects of traditional legal representation for the child. These include communicating the child’s wishes to the court and representing the child’s legal rights in the litigation. In light of the attorney-client relationship that does exist between the best interests attorney and the child, this section holds that attorney to ordinary professional standards of care. Thus, the two categories of lawyers that can be appointed for a child are treated similarly for purposes of immunity. Nevertheless, there are arguments for extending immunity to best interests attorneys since that category of lawyer is charged with advocating positions that the attorney has independently determined are in the child’s best interests. Without such immunity, attorneys may be unwilling to accept appointments, particularly in the context of acrimonious divorces. By bracketing “best interests attorney” in subsection (b), this permits states to choose to provide qualified immunity to that category of representative in addition to the court-appointed advisor.

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

            (a) In an abuse or neglect proceeding, an individual appointed pursuant to this [act], other than a volunteer, is entitled to reasonable and timely fees and expenses in an amount set by the court to be paid from [authorized public funds].

            (b) If the court, after hearing, determines that a party whose conduct gave rise to a finding of abuse or neglect is able to defray all or part of the fees and expenses set pursuant to subsection (a), the court shall enter a judgment in favor of [the state, state agency, or political subdivision] against the party in an amount the court determines is reasonable.

            (c) To receive payment under this section, the payee must complete and submit to the court a written claim for payment, whether interim or final, justifying the fees and expenses charged.

            (d) The court may award fees and expenses under this [act] against the state, a state agency, or a political subdivision of the state only as provided in this section.

Comment

            This section requires that attorneys and court-appointed advisors receive adequate and timely compensation in abuse or 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. Because courts have individualized procedures for paying fees and costs for representation of indigent children, often determined on a county-by-county basis, this section is framed in general terms to provide flexibility. In many jurisdictions, fee schedules have been developed to standardize the compensation for children’s representatives.

            The structure of the section envisions that children’s representatives will be compensated as a matter of course from public funds. At the same time, the section permits courts to require parties with financial ability to reimburse the state for fees and expenses where appropriate, i.e. where the party’s conduct was the basis for a finding of abuse or neglect. A judgment for payment of fees and expenses under this section would be enforceable according to each state’s procedures for enforcement of civil judgments.

            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 a child’s attorney or best interests attorney. See Section 4. As a practical matter, a majority of states already appoint attorneys as children’s representatives in abuse and neglect cases. When a court-appointed advisor is also required under Section 5, that appointment will likewise be at public expense for indigent children. A child’s attorney, best interests attorney, or court-appointed advisor should also have access, where necessary, to reimbursement for experts, investigative services, and other activities undertaken to fulfill the obligations of the appointment.

            SECTION 20. FEES AND EXPENSES IN CUSTODY PROCEEDING.

            (a) In a custody proceeding, an individual appointed pursuant to this [act], other than a volunteer, is entitled to reasonable and timely 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 jurisdiction.

            (b) The court may:

                        (1) allocate fees and expenses among the parties;

                        (2) order a deposit to be made into an account designated by the court for the use and benefit of the individual appointed under this [act]; and

                        (3) before the final hearing, order an amount in addition to the amount ordered deposited under paragraph (2) to be paid into the account.

            (c) To receive payment under this section, the payee must complete and submit to the court a written claim for payment, whether interim or final, justifying the fees and expenses charged.

            (d) [Except as otherwise authorized by [insert reference to state law authorizing payment of fees or expenses], a] [A] court may not award 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-appointed advisors, unless functioning as 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 or 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. Payment from the parties may be made into an account administered by the court for such purposes or into an attorney’s trust account designated by the court. 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. In any event, fee requests must be in writing and in sufficient detail to enable courts to make a determination that the request is reasonable. Courts may also require periodic reporting from appointed representatives regarding their services and fees.

            The award of fees and expenses in appropriate cases may include reasonable costs for expert witnesses, investigative services, research, and other activities where the attorney or 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. REPEALS. The following acts and parts of acts are repealed:

            (1) . . . . . . . . . . .

            (2) . . . . . . . . . . .

            (3) . . . . . . . . . . .]

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