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 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 116^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.

• ULC strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states.

• ULC statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government.

• ULC keeps state law up-to-date by addressing important and timely legal issues.

• ULC’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states.

• ULC’s work facilitates economic development and provides a legal platform for foreign entities to deal with U.S. citizens and businesses.

• Uniform Law Commissioners donate thousands of hours of their time and legal and drafting expertise every year as a public service, and receive no salary or compensation for their work.

• ULC’s deliberative and uniquely open drafting process draws on the expertise of commissioners, but also utilizes input from legal experts, and advisors and observers representing the views of other legal organizations or interests that will be subject to the proposed laws.

• ULC is a state-supported organization that represents true value for the states, providing services that most states could not otherwise afford or duplicate.

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 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 attorney conduct a full investigation and base 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 children’s connections with family and community. Under the UNLV approach, lawyers should seek to empower children by helping 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, 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 “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 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 best interests advocates in Sections 4-6, the qualifications of counsel and 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. Nevertheless, the Act permits a court to appoint a second attorney for a child at some point after the original appointment 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 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 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 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 contested custody cases, judges generally must resolve 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, 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 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 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 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. 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 best interests advocate, whose role is to assist the court in determining the child’s best interests. The 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 best interests advocate may not perform acts that would be restricted to a licensed attorney, even if the person functioning as 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 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 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 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 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 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 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. 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 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 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.