D R A F T
FOR DISCUSSION ONLY
ROLE OF ATTORNEYS REPRESENTING CHILDREN IN CUSTODY DISPUTES
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
For Drafting Committee Meeting, October 22-24, 2004
WITH PREFATORY NOTE AND PRELIMINARY COMMENTS
Copyright ©2004
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 ROLE OF ATTORNEYS REPRESENTING CHILDREN IN CUSTODY DISPUTES
The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in preparing this Role of Attorneys Representing Children in Custody Disputes 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, 360th District Court, Civil Cts. Bldg 2nd Flr., 100 N Houston, Fort Worth, TX 76196-0282
ROBERT L. MCCURLEY, JR., Alabama Law Institute, P.O. Box 861425, Tuscaloosa, AL
35486, Enactment Plan Coordinator
GENIE OHRENSCHALL, 1124 S. 15th St., Las Vegas, NV 89104-1740
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
ROBERT B. WEBSTER, 101 W. Big Beaver Rd., Flr. 10, Troy, MI 48084-5280
BARBARA ANN ATWOOD, University of Arizona James E. Rogers College of Law, P.O. Box 210176, Tucson, AZ 85721-0176, Reporter
EX OFFICIO
FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Rd., Room 3056,
Norman, OK 73019, President
MARTHA T. STARKEY, 30 South Meridian St., Suite 850, Indianapolis, IN 46204, Division
Chair
AMERICAN BAR ASSOCIATION ADVISOR
ANN M. HARALAMBIE, 3499 N. Campbell Ave., Suite 901, Tucson, AZ 85719-2376
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
ROLE OF ATTORNEYS REPRESENTING CHILDREN IN CUSTODY DISPUTES
TABLE OF CONTENTS
[ARTICLE] 1
GENERAL PROVISIONS
[ARTICLE] 2
APPOINTMENT OF CHILD’S ATTORNEY, BEST INTERESTS ATTORNEY OR GUARDIAN AD LITEM
SECTION 202. MANDATORY APPOINTMENT OF GUARDIAN AD LITEM IN ABUSE AND NEGLECT PROCEEDING
SECTION 204. CONTINUED REPRESENTATION
SECTION 301. QUALIFICATIONS OF CHILD’S ATTORNEY OR BEST INTERESTS ATTORNEY
SECTION 302. QUALIFICATIONS OF GUARDIAN AD LITEM; ATTORNEY AS GUARDIAN AD LITEM
[ARTICLE] 4
POWERS, DUTIES, AND IMMUNITY
SECTION 401. DUTIES OF CHILD’S ATTORNEY AND BEST INTERESTS
ATTORNEY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 402. ADDITIONAL DUTIES OF CHILD’S ATTORNEY; SUBSTITUTED JUDGMENT
SECTION 403. ADDITIONAL DUTIES OF BEST INTERESTS ATTORNEY
SECTION 404. DUTIES OF GUARDIAN AD LITEM FOR CHILD
SECTION 405. ACCESS TO CHILD AND INFORMATION RELATING TO CHILD.
SECTION 407. ATTORNEY WORK PRODUCT AND TESTIMONY
SECTION 501. FEES AND EXPENSES IN ABUSE AND NEGLECT PROCEEDINGS
SECTION 502. FEES AND EXPENSES IN CUSTODY PROCEEDINGS OTHER THAN ABUSE AND NEGLECT PROCEEDINGS
SECTION 601. TRANSITIONAL PROVISION
ROLE OF ATTORNEYS REPRESENTING CHILDREN IN CUSTODY DISPUTES
The role of lawyers representing children in court proceedings affecting their interests has
been the subject of intense debate within the last decade among academics, practicing attorneys,
and courts. Disagreements focus on such fundamental questions as whether appointment of
counsel should be mandatory, how a lawyer should determine a child’s capacity to direct the
legal representation, what a lawyer should do for children who lack that capacity, and whether a
lawyer may both represent a child as the child’s lawyer and also participate as guardian ad litem
for the child.
Several competing proposals have emerged to address the important question of
representation of children. In 1995, the American Academy of Matrimonial Lawyers adopted a
set of standards under which lawyers were to advocate the wishes of the “unimpaired” child but
could act only as a conduit of information for the “impaired” child.
At the same time, 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 (“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 from immaturity
is incremental and issue-specific.
A major conference on the representation of children was held at Fordham Law School in
1996 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 proposed
various refinements.
Recently, the ABA addressed the same questions in the context of child
custody proceedings and adopted Standards of Practice for Lawyers Representing Children in
Custody Cases (ABA Custody Standards).
State laws vary dramatically on the appointment of representatives for children, with
some models emphasizing the unique vulnerability of children and children’s need for adult
protection and guardianship to determine their interests, while other models 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 GAL are largely undefined.
Many
states routinely appoint lawyers to function as GALs, without careful delineation of the
distinctions between the ethical responsibilities of a lawyer toward the client and the professional
obligations of the GAL 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 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 from a uniform [or model] law. The Conference concluded that a uniform Act would
enhance the quality and professionalism of children’s counsel and would offer an objective
model to clarify and distinguish the roles of various categories of children’s representatives.
The proposed Act integrates the two sets of standards promulgated by the ABA – the Abuse and Neglect Standards and the Custody Standards–in an effort to devise guidelines governing all custody proceedings, including abuse and neglect cases. A major goal of the Act is to improve the representation of children in proceedings directly affecting their interests by providing a clear definition of roles for courts and counsel. That objective is implemented through the definitions set out in section 101, standards for the appointment of counsel and guardians ad litem under Article 2, the qualifications of counsel and guardians ad litem under Article 3, and the description of powers and responsibilities under Article 4. Fees and expenses are addressed in Article 5.
The Act provides for two categories of lawyers for children–the child’s attorney and the
best interests attorney–but does not endorse the dual role 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. The Act authorizes, however, a
limited exercise of “substituted judgment” by the child’s attorney under section 402 where the
child is incapable of reasonable judgment and meaningful communication as to a particular issue.
In that circumstance, the child’s attorney may pursue the child’s “legal interests” in the
proceeding and request appointment of a best interests attorney or guardian ad litem. Similarly, if
a child’s expressed goals would put the child at risk of harm, the child’s attorney should again
request the appointment of a best interests attorney or guardian ad litem but may continue to
present the child’s expressed goals to the court, unless the child’s position is prohibited by law or
lacking in factual foundation. The design of the Act is to keep the child’s attorney within the
appointed role and not to permit a more subjective pursuit of the child’s best interests.
In contrast, the best interests attorney under the Act, while remaining in the professional role of an attorney, has the substantive responsibility of assisting the court in determining the child’s best interests. Thus, under section 402, the best interests attorney is not bound by the client’s expressed objectives and may use client’s confidences where necessary to protect the child’s interests in the proceeding.
Finally, the Act treats the guardian ad litem as a non-attorney representative of the child, with responsibilities that include making a recommendation to the court and testifying in court, where necessary. See section 404. As such, the Act makes clear in section 302 that the guardian ad litem may not perform acts that would be restricted to a licensed attorney, even if the person appointed to be guardian holds a license to practice law. The Act also endorses the widespread use of Court Appointed Special Advocates (CASAs) to fulfill the role of guardian.
Under section 201, a court must appoint either a child’s attorney or a best interests attorney for children in abuse and neglect proceedings. The best interests attorney by definition should satisfy CAPTA’s requirement that a guardian ad litem be appointed for children in abuse and neglect proceedings. If a best interests attorney has not been appointed, then section 202 directs the court to appoint a guardian ad litem in order to meet the CAPTA requirement. In custody proceedings other than abuse and neglect cases, the Act leaves to judicial discretion the question of appointing a child’s representative. Section 203 provides a list of factors to assist the court in deciding whether to appoint a representative at all, and , if a representative is to be appointed, which category of representative is appropriate.
While the Act sets out basic guidelines for the appointment and role of attorneys and guardians ad litem, 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.
ROLE OF ATTORNEYS REPRESENTING CHILDREN IN CUSTODY DISPUTES
GENERAL PROVISIONS
SECTION 101. SHORT TITLE. This [act] may be cited as the Role of Attorneys Representing Children in Custody Disputes.
SECTION 102. DEFINITIONS. In this [act]:
(1) “Abuse and neglect proceeding” means a court proceeding, whether instituted by the state or a private party, based on a petition filed for protection of a child, a motion to a court to change legal custody, visitation, or guardianship based on substantial allegations of child abuse or neglect, or an action to terminate parental rights.
(2) “Best interests attorney” means an attorney appointed by the court in a custody proceeding to assist the court in determining a child’s best interests.
(3) “Child’s attorney” means an attorney appointed by the court to provide legal services to a child.
(4) “Custody proceeding” means a court proceeding in which legal or physical custody of a child, parenting time, access, or visitation is adjudicated, including a proceeding relating to divorce, separation, determination of parentage, contested adoption, contested private guardianship, and protection from domestic violence. The term does not include juvenile delinquency proceedings, status offense adjudications, or other quasi-criminal proceedings initiated against a child because of the conduct of the child; or an action brought solely to determine or enforce child support.
(5) “Developmentally appropriate” means structured in a way that will enable a child to understand and communicate, taking into account such factors as the child’s age, level of education, cultural background, and degree of language acquisition.
(6) “Guardian ad litem” means a person appointed as an assistant to the court to investigate and present the best interests of a child.
Comment
The definitions reflect the range of court-appointed representatives for children that are
encompassed by the ABA Custody Standards: child’s attorney, best interests attorney, and guardian ad litem. The definitions do not include the dual role attorney/guardian ad litem found in the ABA Abuse and Neglect Standards. Because of widespread disagreement and confusion about the functioning of the attorney/guardian ad litem for children, this Act does not authorize that hybrid category.
Courts and commentators agree that state law should clearly define the roles of such representatives and should distinguish among the various roles in the terms of the appointment. For purposes of this Act, court appointment means a formal order of the court directing the representative to act on behalf of the child in a designated proceeding or with respect to a designated issue. Although a representative may be court appointed without receiving compensation from the court or other government sources, the order of appointment should clearly delineate the source of any compensation and the method for determining fees. A best interests attorney may only serve under the authority of a court appointment, while a privately retained attorney may function as the child’s attorney without a court appointment. This act, however, governs only court-appointed representatives for children.
The act governs custody proceedings, including abuse and neglect proceedings, but does not extend to juvenile delinquency or other related governmental actions arising from conduct of the child. In the latter category, the quasi-criminal nature of the proceedings triggers constitutional concerns that are not applicable to the abuse and neglect and custody context. See In re Gault, 387 U.S. 1 (1967).
(a) This [act] governs the powers and duties of court-appointed attorneys and guardians ad litem for children in child custody proceedings, including abuse and neglect proceedings.
(b) This [act] does not create, enlarge, or diminish parents’ or children’s rights under laws other than this [act].
Comment
The act does not govern privately-retained counsel for children since a child or parent remains free to independently hire a lawyer to represent the child. While it is hoped that privately retained counsel will adhere voluntarily to the standards announced in the act, the act by its own force applies only to court appointed counsel and guardians ad litem. At the same time, a court may formally appoint a lawyer who was initially privately retained, and once such an appointment occurs, the act’s terms apply.
The act is not intended to enlarge or diminish children’s or parents’ rights recognized under other federal or state laws, except to the extent necessary to implement the act. For example, the Indian Child Welfare Act authorizes courts to appoint counsel for Indian children in proceedings governed by the ICWA when such appointment is in the best interest of the child. See 25 U.S.C. § 1912(b). While the ICWA establishes the federal right to court-appointed counsel in Indian child welfare proceedings, this act would supplement that right by clarifying the role of the attorney or guardian ad litem for the child. At the same time, ICWA provides a set of priorities for the placement of Indian children to promote the goal of maintaining Indian children within Indian families. See 25 U.S.C. § 1915. That federal goal would necessarily govern the attorney’s representation of an Indian child governed by the federal Act.
Similarly, this act does not diminish state laws that afford children standing or the right to broader participation in custody cases than provided under the act. In a few state, for example, 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). In most states that have considered the issue, however, courts have concluded that the child does not occupy formal party status in a custody proceeding. 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). This act establishes guidelines for the appointment of representatives for children, without regard to a state’s position on whether the child should be recognized as a separate party to a custody proceeding.
APPOINTMENT OF CHILD’S ATTORNEY, BEST INTERESTS ATTORNEY OR GUARDIAN AD LITEM.
SECTION 201. APPOINTMENT OF CHILD’S ATTORNEY OR BEST INTERESTS ATTORNEY IN ABUSE AND NEGLECT PROCEEDING. In an abuse and neglect proceeding, the court [may][shall] appoint a child’s attorney or best interests attorney immediately after the filing of the petition and before the full adversary hearing, to ensure adequate representation of the child.
Comment
[In support of a mandatory appointment:] The ABA has long advocated the mandatory appointment of attorneys for children in abuse and neglect proceedings in addition to the appointment of guardians ad litem, but federal law does not currently require appointment of attorneys. As a matter of practice, almost half of the states require the appointment of an attorney/guardian ad litem for a child in an abuse and neglect proceeding. This section endorses the ABA position and requires the appointment of counsel for children but leaves the choice between a best interests attorney or a child’s attorney to judicial discretion. The court should consider such factors as the age and emotional maturity of the child, the value of an independent advocate for the child’s best interests, the child’s expressed desire for an attorney, the child’s expressed objectives in the proceeding, and other circumstances relevant to the child’s case. The nature of the appointment–whether child’s attorney or best interests attorney--should reflect the court’s individualized assessment of the child’s interests and the court’s needs in the particular proceeding.
SECTION 202. MANDATORY APPOINTMENT OF GUARDIAN AD LITEM IN ABUSE AND NEGLECT PROCEEDING.
(a) Unless a best interests attorney has been appointed by the court, the court shall appoint a guardian ad litem to represent the best interests of the child in an abuse and neglect proceeding immediately after the filing of the petition and before the full adversary hearing.
(b) The court may appoint an attorney to serve as a guardian ad litem for a child if the attorney is appointed to serve solely in that role. An attorney appointed as a guardian ad litem:
(1) may take only those actions that may be taken by a non-attorney guardian ad litem; and
(2) may not:
(A) perform legal services in the case; or
(B) take any action that is restricted to a licensed attorney, including engaging in discovery other than as a witness, making opening and closing statements, and examining witnesses.
Comment
This section is consistent with requirements of current federal law regarding the
appointment of guardians ad litem. The Child Abuse Prevention and Treatment Act, 42 U.S.C. § 5106a(b)(2)(A)(xiii), requires that a guardian ad litem be appointed in every judicial proceeding involving an abused or neglected child. The only exception in this act to the requirement of the appointment of a guardian ad litem is where a best interests attorney has been appointed to assist the court in determining the child’s best interests. In that situation, the best interests attorney will satisfy the requirements of CAPTA.
This section requires that the terms of the appointment be precise and that it clearly delineate the powers and duties of the guardian ad litem. CAPTA expressly provides that the guardian ad litem may be an attorney or a court-appointed special advocate, or both. Although the federal law may permit an attorney guardian ad litem to serve as an attorney, under this act an attorney appointed as guardian ad litem is not appointed to serve as an attorney and should function only as a non-lawyer.
SECTION 203. DISCRETIONARY APPOINTMENTS IN CUSTODY PROCEEDINGS OTHER THAN ABUSE AND NEGLECT PROCEEDINGS.
(a) In custody proceedings other than abuse and neglect proceedings, the court may appoint one or more of the following :
(1) a best interests attorney;
(2) a child’s attorney; or
(3) a guardian ad litem.
(b) In determining whether to make an appointment under this section, the court:
(1) shall:
(A) give due consideration to the ability of the parties to pay reasonable fees to the appointee; and
(B) balance the child’s interests against the cost to the parties that would result from an appointment, taking into consideration the cost of available alternatives for resolving issues;
(2) may make an appointment only if the court finds that the appointment is necessary to ensure the determination of the best interests of the child; and
(3) may not require a person appointed under this section to serve without reasonable compensation for the services rendered by the person.
(c) In deciding whether to appoint a best interests attorney or a child’s attorney, the court shall consider the nature and adequacy of the evidence to be presented by the parties and the court’s need for additional information relevant to the best interests of the child. Appointment may be most appropriate in cases that involve or one or more of the following:
(1) requests for extraordinary remedies, such as supervised visitation;
(2) the possibility of relocation that could substantially reduce the child’s time with a parent or sibling;
(3) the child’s expressed views or concerns, including the child’s request for appointment of a representative;
(4) past or present substance abuse by the child or a party;
(5) disputed paternity;
(6) past or present abduction of the child or risk of abduction;
(7) past or present family violence;
(8) past or present mental health problems of the child or a party;
(9) special physical, educational, or mental health needs of the child that require investigation or advocacy;
(10) high level of acrimony between the parties or the parties and the child;
(11) inappropriate adult influence on or manipulation of the child;
(12) interference with custody or parenting time;
(13) the need to minimized harm to the child from the processes of family separation and litigation;
(14) any other factor or circumstance suggesting that the appointment of a child’s attorney or best interests attorney is necessary to protect the child or to enable the court to determine the child’s best interests.
Comment
This section leaves the appointment of attorneys or guardians ad litem for children in custody cases to judicial discretion. In accordance with the ABA Custody Standards, the section enumerates a list of factors for courts to consider in deciding whether the appointment of a child’s attorney, best interests attorney, or guardian ad litem is warranted. The appointment of a lawyer or guardian ad litem for the child in a custody dispute may often be unnecessary and might introduce a potentially intrusive and expensive advocate. On the other hand, in some circumstances, such as where there are credible allegations of domestic violence, the appointment of a separate representative for the child may be essential for the court’s determination of the child’s best interests.
The goal of child representation is not only to advocate a particular outcome but also to protect children from collateral damage from litigation. A lawyer acting in either role may ensure that the court is made aware of any views the child wishes to express and that those views will be given the proper weight under the substantive law. Moreover, the lawyer should select a method of conveying the child’s views that is the least harmful to the child.
As noted in the comments to section 201, in deciding whether to appointment a child’s attorney, a best interests attorney, or a guardian ad litem, the court should consider the child’s interests and the court’s needs in the particular proceedings. This would include such factors as the age and emotional maturity of the child, the value of an independent advocate for the child’s best interests, the child’s expressed desire for an attorney, the child’s expressed objectives in the proceeding, and other circumstances relevant to the child’s case.
SECTION 204. CONTINUED REPRESENTATION. In abuse and neglect proceedings, an order appointing the [appropriate state agency] as the child’s [custodian, guardian, or conservator] may provide for continuation of the appointment of a child’s attorney, best interest attorney, or guardian ad litem for a period set by the court.
QUALIFICATIONS.
SECTION 301. QUALIFICATIONS OF CHILD’S ATTORNEY OR BEST INTERESTS ATTORNEY. A court-appointed child’s attorney or best interests attorney must be trained in child advocacy in a program determined by the court to meet [statewide] standards or have experience determined by the court to be equivalent to that training.
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 regulatory agency or otherwise. Such standards of practice should include a description of required training in applicable statutory codes, case law and court procedures, the dynamics of child abuse and neglect, child development and child psychology, treatment issues, communication with children, cultural awareness, and the impact of separation and long-term consequences to a child of being in temporary care. Before making an appointment, courts should require lawyers to document their relevant training and experience. All children’s attorneys and best interests attorneys should become familiar with the ABA Abuse and Neglect Standards, the suggested amendments to those standards adopted by the National Association of Counsel for Children, and the ABA Custody Standards.
SECTION 302. QUALIFICATIONS OF GUARDIAN AD LITEM; ATTORNEY AS GUARDIAN AD LITEM.
(a) In a custody proceeding other than an abuse and neglect proceeding the court may appoint as a guardian ad litem for a child:
(1) a non profit organization composed of volunteer advocates whose training includes the representation of children in private custody disputes; or
(2) an individual who has received the court’s approved training regarding the representation of children in private custody disputes and who has been certified by the court to appear at court hearings as a guardian ad litem for the child.
( b) In an abuse and neglect proceeding, the court may appoint as a guardian ad litem for the child:
(1) a non-profit organization composed of volunteer advocates whose training includes representation of abused and neglected children; or
(2) an individual who has received the court’s approved training regarding the representation of abused and neglected children and who has been certified by the court to appear at court hearings as a guardian ad litem for the child.
(c) The court may appoint an attorney to serve as guardian ad litem for a child if the attorney meets the qualifications in this section and is specifically appointed to serve solely in the role of guardian ad litem. An attorney appointed as a guardian ad litem:
(1) may take only those actions that may be taken by a non-attorney guardian ad litem; and
(2) may not:
(A) perform legal services in the case; or
(B) take any action that is restricted to a licensed attorney, including engaging in discovery other than as a witness, making opening and closing statements, and examining witnesses.
Comment
In appointing a guardian ad litem for a child, the court may appoint an individual as guardian ad litem based on that person’s training, ability, and experience in child advocacy. This section makes clear that if the court appoints an attorney to function as guardian ad litem, that person is not to function as an attorney in the proceeding. Alternatively, the court may identify a nonprofit organization consisting of volunteer advocates, such as the Court Appointed Special Advocates (CASA), or a specific volunteer advocate from a list maintained by the court pursuant to other provisions of state law.
As with the training for attorneys for children, the guardian ad litem training should include instruction on the applicable state and federal law, the dynamics of child abuse and neglect, child development, treatment issues, communication with children, cultural awareness, and the impact of separation and long-term consequences to a child of being in temporary care.
POWERS, DUTIES, AND IMMUNITY
SECTION 401. DUTIES OF CHILD’S ATTORNEY AND BEST INTERESTS ATTORNEY.
(a) An attorney appointed as a child’s attorney or best interests attorney shall, within a reasonable time after entering an appearance:
(1) meet with the child and ascertain the child’s needs, circumstances, and views in a developmentally appropriate manner;
(2) investigate the facts of the case to the extent the attorney considers appropriate, including interviewing persons with significant knowledge of the child’s history and condition;
(3) obtain and review copies of relevant records relating to the child as provided in Section 405 to the extent the attorney considers appropriate;
(4) seek to elicit in a developmentally appropriate manner the child’s expressed objectives in the proceeding;
(5) present the child’s expressed objectives in the proceeding to the court if the child so desires, using a method that is appropriate in light of the needs of the child’s case and the impact on the child;
(6) take any action consistent with the child’s best interests that the attorney considers necessary to expedite the proceedings and the resolution of contested issues;
(7) encourage settlement and the use of alternative forms of dispute resolution when the attorney considers appropriate.
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 is in a pivotal position in negotiations and should attempt to resolve the case in the least adversarial manner possible.
In addition, courts must ensure that children’s attorneys receive notice and
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. For a detailed enumeration of the pretrial and trial responsibilities for children’s attorneys, attorneys should refer to Standards III (F) and (G) of the ABA Custody Standards. Although children’s attorneys and best interests attorneys should diligently investigate the facts, they also must observe all applicable ethical guidelines governing contacts with represented parties.
SECTION 402. ADDITIONAL DUTIES OF CHILD’S ATTORNEY; SUBSTITUTED JUDGMENT.
(a) A child’s attorney owes to the child the duties inherent in the attorney-client relationship under the laws of this state.
(b) A child’s attorney shall use the attorney’s best efforts to:
(1) provide information to the child about the legal proceedings;
(2) provide advice and counsel to the child; and
(3) explain the nature of the attorney-client relationship to the child, including the requirements of confidentiality.
(c) Subject to subsections (d) and (e), a child’s attorney shall follow the child’s expressed objectives of representation during the course of litigation if the child’s attorney determines that the child:
(1) is competent to understand the nature of an attorney-client relationship;
(2) has formed an attorney-client relationship with the attorney; and
(3) is competent to direct the attorney with respect to the particular issue involved.
(d) If a child’s attorney determines that the child cannot meaningfully formulate the child’s objectives of representation in the case or as to a particular issue because the child lacks sufficient maturity to understand and form an attorney-client relationship or for any other reason is incapable of making reasonable judgments and engaging in meaningful communications, the attorney may:
(1) request appointment of a guardian ad litem or best interests attorney; and
(2) present to the court a position that the attorney determines will serve the child’s legal interests.
(e) If a child’s attorney determines that, despite appropriate legal counseling, the child continues to express objectives of representation that would put the child at risk of substantial harm, the child’s attorney may:
(1) request appointment of a guardian ad litem or best interest attorney without revealing the reason for the request; and
(2) continue to represent the child’s expressed objectives unless the child’s position is prohibited by law or without factual foundation.
Comment
The child’s attorney is in a traditional lawyer/client relationship with the child and, as
such, 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. The lawyer may not advocate a position
contrary to the child’s expressed position except as permitted by applicable ethical standards.
This section reflects the approach of the ABA Abuse and Neglect Standards and the ABA Custody Standards. A child’s attorney is bound by the child’s expressed wishes unless pursuing those wishes would put the child at risk of substantial physical, financial 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 permits the child’s attorney to request the appointment of a guardian ad litem or a best interests attorney. A child’s attorney should not reveal the reason for the request unless such disclosure is authorized by the state’s ethics rules on confidentiality A child’s attorney may continue to advocate the child’s expressed wishes unless the child’s position is prohibited by law or lacks any factual foundation. Under ordinary ethical standards, a lawyer may not advocate positions that are not well grounded in fact and warranted by existing law or a good faith revision of existing law.
Under this section, the child’s attorney may advocate the legal interests of a child who is incapable of formulating objectives of representation because of immaturity or other reasons. “Legal interests,” as used here refers to interests that are specifically recognized in law and can be protected through the courts. These would include, for example, the right of a special needs child to appropriate educational and medical services, or the right of a child to child support or governmental benefits. This section does not authorize a lawyer who has been appointed as the child’s attorney to more generally advocate the child’s best interests, since that is the province of the best interests attorney.
SECTION 403. ADDITIONAL 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 of the case and according to criteria established by law related to the purposes of the proceeding.
(b) A best interests attorney is not bound by the child’s expressed objectives but shall, in a developmentally appropriate manner:
(1) explain the role of the best interests attorney to the child;
(2) inform the child that, in providing assistance to the court, the attorney may use information that the child gives; and
(3) if the child does not also have a child’s attorney:
(A) provide information to the child about the legal proceedings; and
(B) provide advice and counsel to the child.
(c) A child’s confidential communications with a best interests attorney are subject to this state’s attorney ethics rules as if the child were the client of the best interests attorney, except that the attorney may use the child’s confidences for the purpose of the representation without disclosing them.
Comment
The best interests attorney is governed by the state’s ethical rules except as dictated by
the absence of a traditional attorney/client relationship with the child and the particular
requirements of the appointment. Under this section, a child’s communications with a best interests attorney are confidential except that use of the communications is permitted if necessary to protect a child’s interests. Although some states have permitted the hybrid lawyer/guardian ad litem to reveal the child’s confidential communications to the court where necessary to promote the child’s best interests, see Clark v. Alexander, 953 P.2d 145 (Wyo. 1998), this section provides a more limited exception to the principle of client confidentiality. Thus, a best interests attorney may use a child’s confidential communications for the purpose of the representation without disclosing them. The distinction between use and disclosure means, for example, that if a child tells the attorney that a parent uses illegal drugs, the attorney may use that information to find and present separate evidence of the drug use 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 may be used by the attorney in order to achieve the best resolution for the child in the proceeding.
SECTION 404. DUTIES OF GUARDIAN AD LITEM FOR CHILD. A guardian ad litem appointed for a child shall:
(a) within a reasonable time after the appointment:
(1) meet with the child and ascertain the child’s needs, circumstances, and views in a developmentally appropriate manner;
(2) investigate the facts of the case to the extent the guardian ad litem considers appropriate, including interviewing persons with significant knowledge of the child’s history and condition;
(3) obtain and review copies of the child’s relevant medical, psychological, and school records as provided by Section 405 to the extent the guardian ad litem considers appropriate;
(b) seek to elicit in a developmentally appropriate manner the child’s expressed objectives in the proceeding;
(c) consider the child’s expressed objectives in the proceeding without being bound by them;
(d) encourage settlement and the use of alternative forms of dispute when the guardian ad litem considers appropriate; and
(e) perform any specific task directed by the court.
Comment
This section describes the traditional function of the guardian ad litem and makes clear that the guardian ad litem has a duty to conduct an independent investigation in order to ascertain the facts of the case. That investigation ordinarily would include review of relevant records and interviews with the people with relevant knowledge of the child. The guardian ad litem also should advise the child in terms the child can understand about the nature of the proceedings and the role of the guardian ad litem. Many states have developed more detailed standards governing the duties of guardians 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., Office of Juvenile Justice and Delinquency Prevention, Court Appointed Special Advocates: A Voice for Abused and Neglected Children in Court (1997).
SECTION 405. ACCESS TO CHILD AND INFORMATION RELATING TO CHILD.
(a) Except as otherwise proved in subsection (c), in conjunction with an appointment under this [act], the court shall issue an order authorizing the child’s attorney, guardian ad litem, or best interests attorney to have immediate access to:
(1) the child; and
(2) any otherwise privileged or confidential information relating the child.
(b) Without requiring a further order or release, the custodian of any relevant record relating to the child, including records regarding social services, drug and alcohol treatment, and medical or mental health evaluation or treatment of the child, law enforcement records, school records, records of a probate or court proceeding, and records of any trust or account for which the child is a beneficiary, shall provide access to a person authorized pursuant to subsection (a) to access the records.
( c) A mental health record of a child at least [ ] years of age which is privileged or confidential under law other than this [act] may be released to a person appointed under this act only in accordance with that law.
Comment
State law must enable attorneys for children, whether appointed as child’s attorney or best
interests attorney, and guardians ad litem to have sufficient information to competently perform
their assigned roles. Relevant files include those concerning child protective services,
developmental disabilities, juvenile delinquency, mental health, and educational agencies. A
lawyer may still need to use subpoenas or other discovery tools to obtain relevant records.
SECTION 406. PARTICIPATION BY CHILD’S ATTORNEY, BEST INTERESTS ATTORNEY, OR GUARDIAN AD LITEM IN PROCEEDING.
(a) A child’s attorney, best interests attorney, and guardian ad litem for a child are entitled to:
(1) receive a copy of each pleading or other record filed with the court in the proceeding;
(2) receive notice of and attend each hearing in the proceeding; and
(3) participate in any case staffing concerning the child conducted by an authorized agency.
(4) review and accept or decline to accept a stipulation for a proposed order affecting the child and explain to the court the basis for any opposition.
(b) A guardian ad litem appointed for a child may not call or question a witness or otherwise act as an attorney.
(c) The court may compel the guardian ad litem for a child to attend a trial or hearing relating to that child and to testify as necessary for the proper disposition of the proceeding.
(d) The court shall ensure in a hearing or in a trial on the merits regarding a child’s custody that any guardian ad litem for the child has an opportunity to testify or submit a report regarding the guardian ad litem’s recommendations regarding:
(1) the best interests of the child; and
(2) the bases for the guardian ad litem’s recommendations.
(e) In a non-jury trial regarding custody of a child, a party may call the guardian ad litem for the child as a witness for the purpose of cross-examination regarding the guardian’s report without the guardian’s being listed as a witness by a party. If the guardian is not called as a witness, the court shall permit the guardian to testify in the narrative.
(f) In a contested case regarding a child, a guardian ad litem for the child shall provide copies of any report by the guardian to the attorneys for the parties as directed by the court, not later than the earlier of:
(1) the date required by any scheduling order; or
(2) [10] days before commencement of the trial.
(g) Disclosure to the jury of the contents of a guardian ad litem’s report to the court is subject to this state’s rules of evidence.
Comment
This section makes clear that a child’s attorney, a best interests attorney, and a guardian ad litem are each entitled to receive notice of all hearings and to receive copies of all documents filed in the case. The right to participate in case staffings will arise in abuse and neglect proceedings where periodic conferences among court personnel and children’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 guardian ad litem may also testify or submit a report to the court containing a recommendation as to the child’s best interests.
SECTION 407. ATTORNEY WORK PRODUCT AND TESTIMONY.
(a) Except as otherwise provided in subsection (b) and sections 402 and 403, a child’s attorney or a best interests attorney may not:
(1) be compelled to produce attorney work product developed during the appointment as the child’s attorney or best interests attorney;
(2) be required to disclose the source of any information;
(3) submit a report into evidence; or
(4) testify in court, except as authorized by [applicable rules of professional conduct].
(b) Subsection (a) does not apply to the duty of an attorney to report child abuse or neglect under [applicable law].
(a) A best interests attorney or a guardian ad litem appointed pursuant to this [act] is not liable for civil damages from an action taken or recommendation or opinion given in the capacity of best interests attorney or guardian ad litem unless the action, recommendation, or opinion:
(1) was taken or given with conscious indifference or reckless disregard to the safety of another;
(2) was taken or given in bad faith or with malice; or
(3) was grossly negligent or wilfully wrongful.
(b) Only the child has a right of action in civil damages against the child’s attorney, or the child’s best interest attorney, or the child’s guardian ad litem.
Comment
This section provides qualified immunity for persons appointed to assist the court as
best interest attorneys or guardians ad litem. The provision of qualified immunity is based on the recognition that such individuals need protection from civil actions for damages when performing functions consistent with their appointed roles. Immunity is necessary to ensure that best attorneys and guardians ad litem can fully investigate and formulate recommendations without fear of retaliation by the parties. The act does not provide immunity for persons appointed as a child’s attorney, since such lawyers are in a traditional lawyer/client role and should be held to ordinary standards of care. The act does recognize that only the child has standing to sue for malpractice or other breach of professional responsibility.
FEES AND EXPENSES.
SECTION 501. FEES AND EXPENSES IN ABUSE AND NEGLECT PROCEEDINGS.
(a) In an abuse and neglect proceeding, a child’s attorney, best interests attorney, and guardian ad litem appointed pursuant to this [act], other than a volunteer advocate, are entitled to reasonable fees and expenses in an amount set by the court.
(b) If the court determines that one or more of the parties is able to defray the fees and expenses set pursuant to subsection (a), the court may:
(1) order one or more of those parties to pay the fees and expenses;
(2) order one or more of those parties, before final hearing, to deposit the amount necessary to pay the fees and expenses into the registry of the court or into an account authorized by the court for the use and benefit of the payee on order of the court; or
(3) tax as costs the amount necessary to pay the fees and expenses against one or more of those parties.
(c) If the parents of the child for whom a child’s attorney, best interests attorney, or guardian ad litem is appointed in an abuse or neglect proceeding are found to be indigent, the fees and expenses set pursuant to subsection (a) must be paid from [designated public funds]. The court may not award fees under this [act] against the state, a state agency, or a political subdivision of the state except as provided by this subsection.
(d) In order to receive payment of fees and expenses under this section, a person appointed as a child’s attorney, best interests attorney, or guardian ad litem must complete and submit to the court a voucher or claim for payment that lists the fees charged and hours worked.
Comment
Adequate and timely compensation of attorneys and guardians ad litem is essential
throughout the terms of appointment. The child’s attorney, best interests attorney, and guardian ad litem should also have access, where necessary, to reimbursement for experts, investigative services, research costs, and other activities undertaken to fulfill the obligations of the appointment. Under the act, state funds should be appropriated and made available to compensate children’s representatives in abuse and neglect proceedings. 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). This act supplements the federal requirement by requiring that indigent children receive publicly funded representation, whether in the form of a child’s attorney, best interests attorney, or guardian ad litem.
SECTION 502. FEES AND EXPENSES IN CUSTODY PROCEEDINGS OTHER THAN ABUSE AND NEGLECT PROCEEDINGS.
(a) In a custody proceeding other than an abuse and neglect proceeding, a child’s attorney, best interests attorney, and guardian ad litem appointed pursuant to this [act], other than a volunteer advocate, are entitled to reasonable fees and expenses in an amount set by the court.
(b) The court shall:
(1) determine the fees and expenses of a child’s attorney, best interests attorney, or guardian ad litem by reference to the reasonable and customary fees for similar services in the county of jurisdiction; and
(2) order a reasonable cost deposit to be made at the time the court makes the appointment.
(c) The court may:
(1) allocate the fees and expenses between the parties in proportion to their demonstrated ability to pay;
(2) before the final hearing, order an additional amount to be paid to the credit of a trust account for the use and benefit of the person or persons appointed under this act as child’s child’s attorney, best interests attorney, or child’s attorney.
(d) Except as otherwise authorized by [state law], a court may not award costs, fees, or expenses under this section to a child’s attorney, best interests attorney, or guardian ad litem 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 should be paid in accordance with prevailing legal standards of reasonableness. This section recognizes that most states do not have public funds available to compensate children’s representatives in custody disputes other than abuse and neglect proceedings. The ordinary approach will be for the court to assess fees against the parties, taking into account significant disparities in ability to pay and awarding fees in proportion to ability to pay. This section recognizes, however, that in some cases public funds will be available under other provisions of state law for fees and expenses in private custody disputes.
The award of fees and expenses in all cases should include reasonable expenses for expert witnesses where the attorney or guardian ad litem demonstrates to the court that such expenses are necessary to accomplish the objective of the proceeding.
MISCELLANEOUS
SECTION 601. TRANSITIONAL PROVISION. This [act] applies to custody proceedings filed on or after the effective date of this [act]. A proceeding filed before the effective date of this [act] is governed by the law in effect when the proceeding was filed, and the former law is continued in effect for that purpose.
SECTION 602. EFFECTIVE DATE. This [act] takes effect on _______________.