FINAL

UNIFORM REPRESENTATION OF CHILDREN

IN ABUSE, NEGLECT, AND CUSTODY

PROCEEDINGS ACT

(Last Revised or Amended in 2007)

drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT

IN ALL THE STATES

at its

ANNUAL CONFERENCE

MEETING IN ITS ONE-HUNDRED-AND-SIXTEENTH YEAR

PASADENA, CALIFORNIA

July 27 – August 3, 2007

with Amendments Shown in Strike and Score

WITH PREFATORY NOTE AND COMMENTS

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

October 9, 2007

ABOUT ULC

The Uniform Law Commission (ULC), also known as National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 117^th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.

ULC members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical.

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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.^{^[1]} It has become a recognized area of practice, and child welfare law has been designated by the American Bar Association as a legal specialty.^{^[2]} 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.^{^[3]}

Several competing proposals have emerged that address representation of children in abuse or 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.^{^[4]} 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”),^{^[5]} taking a different approach to the question of children’s competence to direct representation. Under the ABA Abuse and Neglect Standards, 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.^{^[6]} The ABA Abuse and Neglect Standards take the position that a child’s disability as a result of immaturity is incremental and issue-specific. Although these Standards state a preference for a client–directed “child’s attorney” model, they also provide for the appointment of an attorney as a guardian ad litem to protect the child’s interests.^{^[7]} The National Association of Counsel for Children (“NACC”) issued its own revised version of the ABA Standards in which it endorsed most of the ABA guidelines but also emphasized 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.^{^[8]} When the child cannot meaningfully participate in the formulation of a position, the NACC Standards direct the attorney to substitute his or her judgment for that of the child to formulate a position that serves the child’s interests.^{^[9]} Where the child’s wishes may be seriously injurious to the child, the NACC Revised Standards require the attorney to request the appointment of a separate guardian ad litem.^{^[10]}

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 abuse and neglect 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.^{^[11]} The Fordham recommendations direct lawyers to ascertain the child’s perspective by understanding the child’s world.^{^[12]} The American Law Institute added its views in 2002 with the publication of the Principles of the Law of Family Dissolution.^{^[13]} 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.^{^[14]} More 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).^{^[15]} 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 with the child, and the “best interests attorney,” who ~~advocates a position that the attorney determines to be in the child’s best interests~~ provides independent legal services for the purpose of protecting a child’s best interests, without being bound by the child’s expressed objectives.^{^[16]} The ABA Custody Standards explicitly reject the hybrid attorney/guardian ad litem model because of the confusion and ethical tensions inherent in the blended professional roles. To constrain the discretion of best interests attorneys, the Standards require that the ~~attorneys~~ attorney conduct a full ~~investigations~~ investigation and base ~~their assessments~~ his or her assessment of the child’s interests on “objective criteria set forth in the law” relevant to the particular proceeding.^{^[17]} The ABA Custody Standards also provide that best interests attorneys should maintain confidentiality of client communications consistent with ethical guidelines, but the Standards permit the attorneys to use the child’s confidences for the purposes of the representation without disclosing them.^{^[18]}

Finally, a conference at the University of Nevada, Las Vegas, addressed these matters in 2006 and, like the Fordham Conference, produced its own set of recommendations.^{^[19]} The UNLV Recommendations endorse a multi-disciplinary child-centered representation and direct children’s lawyers to respect ~~the child’s~~ children’s connections with family and community. Under the UNLV approach, lawyers should seek to empower children by helping ~~the child~~ them develop decision-making capacity. Regarding the role of the attorney, the UNLV Recommendations strongly support client-directed representation for children capable of making considered decisions,^{^[20]} but for children who lack that capacity, the Recommendations propose detailed guidelines to guide the lawyer’s exercise of substituted judgment.^{^[21]}

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.^{^[22]} In the abuse and neglect context, 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.^{^[23]} In the context of a private custody dispute outside of child protective proceedings, ~~states have~~ state laws provide 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.^{^[24]}

In light of the marked variation in approaches to children’s representation across the United States and the resulting confusion as to representatives’ roles and duties, the National Conference of Commissioners on Uniform State Laws decided 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, neglect, and custody and ultimately would protect the interests of children nationwide.^{^[25]}

The 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~~ best interests advocate” 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, such as the appointment of guardians ad litem with standing to ~~prosecute~~ assert the tort claims of minors or incapacitated adults.

By its inclusive nature, the Act provides standards that differentiate among the various categories of individuals appointed under the Act while indicating where certain core duties are shared by all categories. These objectives are implemented through the definitions set out in Section 2, the standards for the appointment of counsel and ~~court-appointed advisors~~ best interests advocates in Sections 4-6, the qualifications of counsel and ~~court-appointed advisors~~ best interests advocates in Sections 7 and 8, the provisions governing orders of appointment in Sections 9 and 10, and the description of core duties and powers in Sections 11-17. Section 18 addresses the child’s right of action against appointed representatives and the issue of qualified immunity, a question about which substantial disagreement exists across the United States. Finally, Sections 19 and 20 provide guidelines for compensation of persons appointed under the Act.

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.^{^[26]} When a court appoints counsel for a child, the assumption under the Act is that the child usually will be represented by only one lawyer. ~~Although in special circumstances~~ Nevertheless, the Act permits a court to appoint a second attorney for a child at some point after the original appointment~~, dual legal representation would be unusual, and, indeed, some states may prefer not to enact the provisions that permit such dual appointments~~ when a court determines that dual legal representation is appropriate.^{^[27]}

The child’s attorney is in a traditional attorney-client relationship with the child and is

therefore bound by ordinary ethical obligations governing that relationship.^{^[28]} Under the Act, the child’s attorney is 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 in taking positions in the proceeding. 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~~ best interests advocate or a best interests attorney. 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~~ best interests advocate or best interests attorney 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, is a legal representative of~~ is also in an attorney-client relationship with the child but, in contrast with the child’s attorney, is not bound by the child’s expressed wishes in determining what to advocate.^{^[29]} Instead, the best interests attorney has the substantive responsibility of advocating for the child’s best interests based on an objective assessment of the available evidence, including the circumstances and needs of the child, and according to applicable legal principles. Often the best interests attorney’s position and the child’s stated position will coincide, particularly in light of the attorney’s duty to take the child’s expressed wishes into account in determining what to advocate and to present the child’s wishes to the court if the child so desires. Moreover, the availability of a best interests model of representation is particularly important for those children who are unable or unwilling to direct counsel.^{^[30]}

The practical tasks facing a best interests attorney will vary according to context. In ~~presiding over~~ ~~abuse, neglect, and~~ contested custody cases, judges generally must resolve ~~the proceedings in the best interests of the child,~~ access and visitation disputes under a discretionary best interests standard. In abuse and neglect cases, on the other hand, the state’s parens patriae authority depends on a demonstrated need to protect children from harm, and judicial discretion is more narrowly circumscribed. In either context, ~~but~~ the parties’ presentations in an adversarial setting may not be adequate to provide the court with necessary information. Because of the potential impact of these proceedings on the lives of children, many courts want the participation of a best interests lawyer to ensure that they receive ~~a comprehensive~~ an independent presentation of evidence and legal argument that includes but is not limited to the child’s stated objectives.^{^[31]} The lack of clear directives for lawyers who function as best interests attorneys has resulted in varied and conflicting expectations as to their responsibilities. Because disagreement exists over such fundamental questions as whether the lawyer may serve as a witness, be subject to cross-examination, or divulge client confidences, concrete guidelines governing the lawyers’ duties and powers are essential.

Section 13 of the Act directs the best interests attorney to advocate for a resolution of the proceeding that is consistent with the child’s best interests “according to criteria established by law and based on the circumstances and needs of the child and other facts relevant to the proceeding.” In other words, the best interests attorney is not free to rely on subjective bias but should adhere to recognized legal standards, such as those found in statutes, case law, and procedural rules, and should ~~formulate~~ develop a position that reflects the child’s unique circumstances. 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 an explicit 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. See Section 13(d).

Significantly, in ~~all~~ other respects, the best interests attorney serves as a traditional lawyer, and 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~~. Under the general duties of representation spelled out in Section 11, the best interests attorney, like the child’s attorney, must counsel the child about the consequences of the child’s choices and must keep the child informed of the status of the proceedings. Similarly, the best interests attorney must present the child’s expressed objectives to the court if the child so desires. Moreover, 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. See Section 13(e).

The third category addressed in the Act is the ~~court-appointed advisor~~ best interests advocate, whose role is to assist the court in determining the child’s best interests. The ~~court-appointed advisor’s~~ best interests advocate’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~~ best interests advocate may not perform acts that would be restricted to a licensed attorney, even if the person functioning as ~~court-appointed advisor~~ best interests advocate holds a license to practice law. The Act also endorses and in no way restricts the widespread use of Court Appointed Special Advocates (CASAs) to fulfill the role of ~~court-appointed advisor~~ best interests advocate.^{^[32]}

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. To that end, Section 4 requires the appointment of either a child’s attorney or a best interests attorney in such cases.^{^[33]} In abuse or neglect ~~cases~~ proceedings, 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. Attorneys not only can identify legal issues regarding their child clients based on their understanding of the law but also can use their full panoply of legal skills to ensure the protection of their clients’ rights and needs. The Act requires lawyers to provide competent and diligent representation, to participate fully in the conduct of the litigation, to complete a thorough factual investigation, and to be actively and aggressively involved in all stages of the case. Significantly, attorneys can counsel their child clients on the meaning and consequences of a particular legal proceeding and any position the child wishes to take in that proceeding. Moreover, attorneys can assist their child clients in ancillary legal proceedings.^{^[34]} 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 by statute or case law, and all but about a dozen states regularly appoint attorneys for children as a matter of practice whether or not required to do so by state law.^{^[35]} 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.^{^[36]} 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 incomparable 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. The federal Child Abuse Prevention and Treatment Act (CAPTA) requires the appointment of a “guardian ad litem” for a child as a condition of receiving federal funds for child abuse prevention and treatment programs, but the role and identity of that representative are largely undefined.^{^[37]} The statute expressly permits the guardian to be a lawyer, and the statutory duty 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.”^{^[38]} 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. 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 ultimately will promote the child’s best interests. The responsibilities of the child’s attorney include the duty to counsel the child about the consequences of the child’s choices and to assist the child in choosing options that will not expose the child to a risk of substantial harm. Nevertheless, some states may choose to require a ~~court-appointed advisor~~ best interests advocate if the attorney appointed for the child is not a best interests attorney in order to receive an independent assessment of the child’s best interests. 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~~ best interests advocate 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~~ best interests advocate 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~~ guidance 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~~ On the other hand, the appointment of a representative for the child in some circumstances may exacerbate acrimony between the parties, pressure the child to choose between parents, or ~~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.^{^[39]}

While the Act sets out basic guidelines for the appointment and role of attorneys and ~~court-appointed advisors~~ best interests advocates, states can provide more detailed guidelines through separate standards of practice. Standards are in effect in many states that address ethical concerns, specific training and experience requirements, and other professional issues facing children’s representatives.^{^[40]} Through Sections 7 and 8 of this Act, states may incorporate by reference any standards the state has adopted relating to qualifications and training of children’s representatives.

(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~~ if the attorney considers it 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.

(c) When the court has appointed both a child’s attorney and a best interests attorney for a child under Section 9(c), the court and the attorneys shall confer to determine how the attorneys will perform their common duties under this [act].

Alternative B

The common duties of the child’s attorney and the 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

Most of the key responsibilities of legal representation are common to the child’s attorney and the best interests attorney. The general duties of an attorney, whether serving as a child’s attorney or a 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~~ has legal representation 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 a child’s attorney and a 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~~ children’s attorneys receive notice of all judicial proceedings affecting the child’s welfare and the opportunity to be present and participate in ~~all~~ ~~judicia~~l those 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 inform the child of hearings, settlement conferences, and other proceedings and, when appropriate, 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. A ~~recent~~ nationwide study of the foster care system concluded that, in the abuse or neglect context, “[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 or hearing an exchange of accusations between his or her parents. 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~~ to determine whether to facilitate the child’s direct participation in a given proceeding.

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, 29 Fam L.Q. 375 at 393. For a detailed enumeration of the pretrial and trial responsibilities for children’s counsel in the custody context, attorneys should refer to Standards III (F) and (G), ABA Custody Standards, 37 FAM. L. Q. 131 at 136-39.

States vary in the immunity standards provided for persons functioning as ~~court-appointed advisors~~ best interests advocates, most often referred to as “guardians ad litem.” In some states children’s representatives functioning as ~~court-appointed advisors~~ best interests advocates 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 only 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 ~~court-appointed advisors~~ best interests advocates 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, and states are given the option to provide or not provide immunity for best interests attorneys. 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. The child’s attorney 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 functional approach, however, would seem difficult to administer in light of the fluid and integrated nature of an attorney’s representation for a single client.

The best interests attorney in some ways combines the functions of a child’s attorney and of a ~~court-appointed advisor~~ best interests advocate. While the best interests attorney may advocate a position that is contrary to the child’s expressed objective, the attorney must perform ~~many~~ the other aspects of traditional legal representation for the child. These include providing the child with advice and counsel, 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~~ exists between the best interests attorney and the child, one option provided by this section ~~likewise~~ is to ~~holds~~ hold that attorney to ordinary professional standards of care. Thus, the two categories of lawyers that can be appointed for a child may be treated similarly for purposes of immunity. Accord Fox v. Wills, 890 A.2d 726 (Md. 2006); Md. Code §1-202 (holding “child advocate attorney” and “best interest attorney” to standard of ordinary care and diligence).

Nevertheless, some states have extended immunity to best interests attorneys since that category of lawyer is not ~~a traditional attorney advocating a client’s wishes~~ purely client-directed but instead ~~provides a benefit to the court by advocating~~ advocates for the child’s best interests. See, e.g., Blunt v. O’Connor, 737 N.Y.S. 2d 471, 291 A.D.2d 106 (App. Div. 2002). Because the best interests attorney develops a position based on objective criteria rather than solely the child’s directives, that attorney may be particularly vulnerable to claims of malpractice by disgruntled parties to the litigation. The American Bar Association has recommended qualified immunity for best interests attorneys. See Standard VI. F, ABA Custody Standards, 37 Fam. L.Q. 131 at 160. 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), the Act permits states to choose to provide qualified immunity to that category of representative in addition to the ~~court-appointed advisor~~ best interests advocate.

^{^[1]} See Marvin Ventrell, The Practice of Law for Children, 66 Mont. L. Rev. 1 (2005); Barbara Ann Atwood, Representing Children: The Ongoing Search for Clear and Workable Standards, 19 J. AM. ACAD. MATRIM. LAW. 801 (2005). The United Nations Convention on the Rights of the Child, available at 28 I.L.M. 1448 (1989), recognizes the child’s right of participation, either directly or through a representative, in proceedings affecting the child’s interests. See Article 12. That right of participation has fueled interest in the role of children’s representatives in many of the nations that have ratified the Convention. For a detailed survey of different approaches to child representation throughout the world, see Yale Representing Children Worldwide Project, available at www.law.yale.edu/rcw (current through 2005). A summary of this research can be found at Jean Koh Peters, How Children are Heard in Child Protective Proceedings, in the United States and Around the World in 2005: Survey Findings, Initial Observations, and Areas for further Study, 6 Nev. L.J. 966 (2006).

^{^[2]} The American Bar Association authorized the National Association of Counsel for Children (NACC) to award legal specialty certification in child welfare law in 2004. See Ventrell, supra note 1, at 18.

^{^[3]} For a thoughtful exploration of these issues, see JEAN KOH PETERS, REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS: ETHICAL AND PRACTICAL DIMENSIONS (2d ed. 2001). According to Professor Peters, an attorney should develop a relationship with a child over time and interpret the child’s wishes in the context of the child’s individualized circumstances. Another comprehensive analysis of the legal and ethical issues involved in representing children is Ann M. Haralambie, The Child’s Attorney (1993). Haralambie proposes that children’s attorneys should advocate the child’s wishes unless they are potentially harmful to the child but should request appointment of a guardian ad litem where the child’s wishes are deemed dangerous. She also emphasizes that ethical dilemmas can be minimized or eliminated if children’s attorneys spend significant time advising their clients. If children’s positions are deemed unreasonable, Haralambie urges lawyers to explain the situation to the children and counsel them about alternatives. See also Katherine Hunt Federle, The Ethics of Empowerment: Rethinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 FORDHAM L. REV. 1655 (1996) (exploring ways in which lawyers can redefine their role vis a vis the child client); Catherine Ross, From Vulnerability to Voice, 64 FORDHAM L. REV. 1579 (1996) (examining unique importance of counsel for children when children’s liberty interests are at stake or when interests of children and parents diverge); Martin Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399 (1996) (advocating that lawyer for young child should focus on enforcing child’s legal rights rather than on carrying out child’s expressed objectives). For an insightful examination of the child’s limited capacity to understand the lawyer-client relationship, see Emily Buss, Confronting Developmental Barriers to the Empowerment of Child Clients, 84 CORNELL L. REV. 895 (1999).

^{^[4]} American Academy of Matrimonial Lawyers Standards for Attorneys and Guardians Ad Litem in Custody or Visitation Proceedings, 13 J. AM. ACAD. MATRIM. LAW. 1 (1995) (Standards 2.2, 2.12). For a critique of the AAML approach, see Ann M. Haralambie & Deborah L. Glaser, Practical and Theoretical Problems with the AAML Standards for Representing “Impaired” Children, 13 J. Am. Acad. Matrim. Law. 57 (1995).

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

Children in Abuse and Neglect Cases, 29 FAM. L. Q. 375 (1995). The ABA formally adopted these standards in 1996.

^{^[6]} Id. at Standard B-4(1), (2).

^{^[7]} Id. at Standard A-2.

^{^[8]} Marvin Ventrell, Legal Representation of Children in Dependency Court: Toward a Better Model–The ABA (NACC Revised) Standards of Practice, NACC Children’s Law Manual Series (1999) (Standard B-4(2)). The NACC has also developed a list of overarching duties of all children’s lawyers, regardless of the precise role of the lawyer. See NACC Recommendations for Representation of Children in Abuse and Neglect Cases (2001).

^{^[9]} NACC Revised Standards, B-4(2).

^{^[10]} Id., Standard B-4(3).

^{^[11]} Recommendations of the Conference on Ethical issues in the Legal Representation of Children, 64 FORDHAM L. REV. 1301 (1996) (Fordham Recommendations) (attorney must follow child’s expressed preferences and attempt to discern wishes in context in developmentally appropriate way if child is incapable of expressing viewpoint).

^{^[12]} The influential scholarship of Jean Koh Peters formed a centerpiece of the original Fordham Conference and was also pivotal in the follow-up conference in 2006, held at the Boyd School of Law at the University of Nevada at Las Vegas. See Proceedings of the UNLV Conference on Representing Children in Families: Children’s Advocacy and Justice Ten Years after Fordham, 6 Nev. L. J. 592-687 (2006) (UNLV Recommendations).

^{^[13]} American Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations (2002).

^{^[14]} Id. at § 2.13.

^{^[15]} American Bar Association, Standards of Practice for Lawyers Representing Children in Custody Cases, 37 FAM. L. Q. 129 (2003).

^{^[16]} Id. at Standard II .B.

^{^[17]} Id. at Standard V.E. & F.

^{^[18]} Id. at Standard V.B.

^{^[19]} See UNLV Recommendations, supra note 11.

^{^[20]} As stated in the Recommendations, “[c]hildren’s attorneys should take their direction from the client and should not substitute for the child’s wishes the attorney’s own judgment of what is best for children or for that child.” Id. at 609. Client directives are not to be followed, however, where the child’s preferences would be seriously injurious. Id.

^{^[21]} Id. at 610. Although a lawyer should protect the legal interests of a child who lacks capacity to communicate a position, the Recommendations also propose that the lawyer formulate goals that reflect what the child would want if the child could express a position. Id.

^{^[22]} See Ventrell, supra note 7 (reporting that attorney/GAL and traditional attorney are models that have dominated representation of children).

^{^[23]} See Atwood, supra note 1, at 188-91; Howard A. Davidson, Child Protection Policy and Practice at Century’s End, 33 Fam. L. Q. 765, 768-69 (1999).

^{^[24]} Section 310 of the Uniform Marriage and Divorce Act, for example, provides for the discretionary appointment of counsel for a child. Revealing the blurring of professional lines, the Comment explains that “[t]he attorney is not a guardian ad litem for the child, but an advocate whose role is to represent the child’s interests.” Unif. Marriage & Div. Act § 310 Comment, 9A U.L.A. 13 (1998).

^{^[25]} While this Act is designed for state enactment, American Indian tribes may also find its guidelines useful in administering tribal abuse or neglect proceedings and adjudicating custody disputes that involve Indian children. At least one tribal court has held that a child has a “right to be heard” in a custody dispute, either directly or through a court-appointed representative, as a matter of tribal common law. See In the Matter of Custody of T.M., 28 Indian L. Rep. 6044 (Navajo Nation 2001).

^{^[26]} The Act rejects the hybrid category because it has given rise to a blurring of professional roles where, for example, the same individual functions both as an attorney for the child and a witness in the proceeding. See Rule 3.7, American Bar Association Model Rules of Professional Conduct (2004) (generally prohibiting attorney from acting as advocate and witness in same proceeding). In addition, problems have arisen with the dual role approach because of ethical constraints that are inherent in the attorney/client relationship, including in particular the confidentiality of client communications. For judicial recognition of the tensions inherent in the hybrid attorney/guardian ad litem, see Jacobsen v. Thomas, 100 P.3d 106 (Mont. 2004); Clark v. Alexander, 953 P.2d 145 (Wyo. 1998).

^{^[27]} See Sections 9(c), 12(d) and (e) and Commentary.

^{^[28]} Rule 1.14 of the ABA Model Rules of Professional Conduct provides useful guidance in representing a client with diminished capacity. A helpful exploration of ethical issues facing a child’s attorney can be found in Jennifer L. Renne, Legal Ethics in Child Welfare Cases (ABA 2004).

^{^[29]} “Best interests attorney” is a term that was first used in the ABA Custody Standards to avoid the confusion generated by “guardian ad litem.” See ABA Custody Standards, II. B (Commentary).

^{^[30]} For an explanation of the need for a best interests attorney, see Donald N. Duquette, Legal Representation for Children in Protection Proceedings: Two Distinct Lawyer Roles are Required, 34 Fam. L.Q. 441 (2000).

^{^[31]} See, e.g., Debra H. Lehrmann, Who Are We protecting?, 63 Tex. B.J. 122 (2000).

^{^[32]} The Court Appointed Special Advocate is a lay volunteer who advocates as a non-lawyer on behalf of a child in child abuse and neglect proceedings. Volunteers are screened and trained at the local level, but all CASA programs that are affiliated with the National Court Appointed Special Advocate Association must comply with the standards issued by that organization. See www.nationalcasa.org. In addition, many states have established their own standards to ensure that the volunteers representing children are competent and possess relevant training and experience. See generally Michael S. Piraino, Lay Representation of Abused and Neglected Children: Variations on Court Appointed Special Advocate Programs and Their Relationship to Quality Advocacy, 1 Journal of Center for Children and the Courts 63 (1999). The Office of Juvenile Justice and Delinquency of the United States Department of Justice is authorized to enter into cooperative agreements with the National CASA Association to expand CASA programs nationally. See 42 U.S.C.A. § 13013 (2005 & Supp. 2006). One of the key strengths of the CASA program is that a CASA volunteer generally represents only one child at a time. Moreover, an attorney for the child working in tandem with a CASA volunteer can provide a powerful “team” approach in juvenile court. In addition, CASA volunteers may have access to the CASA program’s own legal representative for legal advice.

^{^[33]} Federal law has long authorized the discretionary appointment of counsel for Indian children subject to the Indian Child Welfare Act. See 25 U.S.C. § 1912(b) (2000).

^{^[34]} 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. The ABA included that principle in standards it developed in collaboration with the Institute for Judicial Administration. See ABA/IJA Joint Commission on Juvenile Justice Standards, Standards Related to Counsel for Private Parties (1976).

^{^[35]} See U.S. State by State Chart, compiled by the Yale Representing Children Worldwide Project, available at www.law.yale.edu/rcw According to that 2005 Survey, more than 30 states currently require the appointment of an attorney or an attorney/guardian ad litem, and an additional half dozen states routinely appoint lawyers for children as a matter of practice even though not required by law to do so.

^{^[36]} In Kenny A. ex rel. Winn v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005), the court held that every child in foster care within the state was entitled to appointed counsel as a matter of procedural due process under the Georgia state constitution. Significantly, the Georgia constitutional provision tracks the federal Due Process Clause, and the court relied on interpretations of the Due Process Clause in the federal Constitution in its analysis.

^{^[37]} See 42 U.S.C.A. § 5106a(b)(2)(A)(xiii) (2003), which requires states to have “provisions and procedures in every case involving an abused or neglected child which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings–(I) to obtain first-hand, a clear understanding of the situation and needs of the child; and (II) to make recommendations to the court concerning the best interests of the child.”

^{^[38]} Id.

^{^[39]} For a summary of state laws governing representation of children in custody cases, see Linda D. Elrod, Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for Custody Cases, 37 Fam. L. Q. 105, 126 (2003) (Appendix).

^{^[40]}For a comprehensive set of standards for “law guardians” in New York, see Committee on Children and the Law, New York State Bar Association, Law Guardian Representation Standards (2005).