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

Prefatory Note

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

            Several competing proposals have emerged that address 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. In 1995, the Family Law Section of the American Bar Association proposed a contrasting set of Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect Cases (“ABA Abuse and Neglect Standards”), taking a different approach to the question of children’s competence to direct representation. Under 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. The ABA Abuse and Neglect Standards take the position that a child’s disability as a result of immaturity is incremental and issue-specific. The National Association of Counsel for Children (“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. 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. 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.

            A conference on the representation of children was held at Fordham Law School in 1995 entitled Ethical Issues in the Legal Representation of Children. This conference examined the principles set out in the then-proposed standards promulgated by the ABA and recommended various refinements that derive from the contextual nature of the relationship between an attorney and a child client. The Fordham recommendations direct lawyers to ascertain the child’s perspective by understanding the child’s world. The American Law Institute added its views in 2002 with the publication of the Principles of the Law of Family Dissolution. The ALI recommends that courts be given broad discretion in private custody disputes to appoint either a guardian with investigatory or advocacy capacity or a lawyer for the child if the child is competent to direct the terms of the representation. 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). The ABA Custody Standards identify two distinct roles for attorneys who represent children: the “child’s attorney,” who is in a traditional attorney-client relationship, and the “best interests attorney,” who advocates a position that the attorney determines to be in the child’s best interests. The 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 conduct full investigations and base their assessments of the child’s interests on “objective criteria set forth in the law” relevant to the particular proceeding. 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.

            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. The UNLV Recommendations endorse a multi-disciplinary child-centered representation and direct children’s lawyers to respect the child’s connections with family and community. Under the UNLV approach, lawyers should seek to empower children by helping the child 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, but for children who lack that capacity, the Recommendations propose detailed guidelines to guide the lawyer’s exercise of substituted judgment.

            State laws vary dramatically on the appointment of representatives for children, with some states emphasizing the unique vulnerability of children and children’s need for adult protection and guardianship to determine their interests, while other states affirm a child’s right to have his or her wishes presented by a zealous advocate. In the abuse and neglect context, many states routinely appoint lawyers to function as guardians ad litem, without careful delineation of the distinctions between the ethical responsibilities of a lawyer to the client and the professional obligations of the lay guardian ad litem as a best interests witness for the court. In the context of a private custody dispute outside of child protective proceedings, states have even fewer guidelines about the appointment of representatives for children. Typically, state law simply authorizes the appointment of counsel or guardian ad litem as a matter of judicial discretion.

            In light of the 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.

            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” 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 to prosecute 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 in Sections 4-6, the qualifications of counsel and court-appointed advisors in Sections 7 and 8, the provisions governing orders of appointment in Sections 9 and 10, 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. When a court appoints counsel for a child, the assumption under the Act is that the child will be represented by only one lawyer. Although in special circumstances 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.

            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. 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 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 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 the child but is not bound by the child’s expressed wishes in determining what to advocate. 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 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.

            In presiding over abuse, neglect, and custody cases, judges must resolve the proceedings in the best interests of the child, 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 presentation of evidence that includes but is not limited to the child’s stated objectives. 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.” 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 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, whose role is to assist the court in determining the child’s best interests. The court-appointed advisor’s responsibilities include investigation of the case and, where appropriate, making a recommendation to the court. See Section 14. The Act makes clear that the court-appointed advisor may not perform acts that would be restricted to a licensed attorney, even if the person functioning as court-appointed advisor holds a license to practice law. The Act also endorses and in no way restricts the widespread use of Court Appointed Special Advocates (CASAs) to fulfill the role of court-appointed advisor.  

            An important premise underlying the Act is that an attorney should be appointed for every child who is the subject of an abuse or neglect proceeding. To that end, Section 4 requires the appointment of either a child’s attorney or a best interests attorney in such cases. In abuse or neglect cases, as defined in the Act, court orders may effectively determine a child’s future, including whether the child will remain in his or her home, the nature and duration of any placement outside the home, the child’s contact with parents and other relatives, and the child’s access to social services. The requirement of appointed counsel rests on the recognition that children’s interests in these proceedings are of fundamental importance. 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. 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. 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. Moreover, at least one federal district court has held that appointment of counsel for every child in the state foster care system is constitutionally required as a matter of procedural due process. Although the mandate of this Act may impose additional financial costs on those few states that do not currently provide for legal representation for children in abuse and neglect cases, the drafters of the Act believe that the 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. 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.” 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 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 is required unless the attorney appointed for the child is a best interests attorney. In contrast, under the second alternative, the appointment of a court-appointed advisor is discretionary when either a child’s attorney or a best interests attorney has been appointed for the child in an abuse or neglect proceeding.

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

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

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

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

            SECTION 2. DEFINITIONS. In this [act]:

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

            (2) “Best interests attorney” means an attorney who provides legal representation for a child to protect the child’s best interests without being bound by the child’s directives or objectives.

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

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

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

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

Comment

            The definitions in the Act parallel the categories of attorneys for children that are set forth in the ABA Custody Standards: child’s attorney and best interests attorney. See American Bar Association, Standards of Practice for Lawyers Representing Children in Custody Cases, 37 FAM. L. Q. 131 (2003). The Act also includes appointment of a person sometimes described as “guardian ad litem,” but the Act uses the new term “court-appointed advisor” in order to avoid the widespread disagreement and confusion about the meaning of “guardian ad litem” and the duties of a person in that role. Under the Act, a “child’s attorney” is a client-directed lawyer in a traditional attorney-client relationship with the child. A “best interests attorney” also provides legal representation to a child and performs as a traditional attorney with one key difference: the best interests attorney is not bound by the child’s expressed wishes in determining what to advocate, although the attorney must consider the child’s preferences. The meaning of “child” may vary according to state law and will be defined by state law for purposes of this Act.

            The “court-appointed advisor” assists the court in determining the best interests of a child and will therefore perform many of the functions formerly attributable to guardians ad litem, but the Act makes clear that court-appointed advisors are not to function as attorneys. Instead, a court-appointed advisor will independently investigate the child’s circumstances and may sometimes testify in the case about the child’s best interests. See Section 14. Similarly, because the role of attorney, whether child’s attorney or best interests attorney, is functionally and ethically inconsistent with that of a guardian ad litem, the Act does not endorse the hybrid role of attorney/guardian ad litem employed in numerous states. At the same time, court-appointed advisors may have their own legal representation, and the Act has no impact on that practice.

            “Best interests attorney” is a term of art that was introduced by the ABA in developing the Custody Standards and signifies an independent representative for a child client who advocates positions in the proceeding that will serve the child’s interests even if those positions are not identical with the child’s expressed views. In other respects, however, the best interests attorney performs the same duties of representation that are performed by the child’s attorney, including the duty to provide advice and counsel to the child and the duty to inform the court of the child’s expressed objectives if the child so desires. See Sections 11 and 13. Some jurisdictions have authorized attorneys to function in the same capacity as best interest attorneys but have denominated them differently. See, e.g., Vernon’s Tex. Code Ann. Family Code § 107.021 (amicus attorney).

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

            Under the definitions of this Act, abuse or neglect proceedings include child protection proceedings ordinarily brought in juvenile court, such as dependency actions and foster care placements, as well as actions to terminate parental rights. A custody proceeding, in contrast, includes other court proceedings in which the child’s legal or physical custody is at issue, such as divorce or dissolution, separation, determination of parentage, contested adoptions, contested private guardianships, or protection from domestic violence or harassment. States may wish to specify that other actions that affect the child’s physical and legal custody, such as mental health civil commitment proceedings, also qualify as custody proceedings.

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

            SECTION 3. APPLICABILITY AND RELATIONSHIP TO OTHER LAW.

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

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

Comment

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

            The Act is not intended to affect children’s rights recognized under other state or federal laws. State law may impose specialized rules for particular proceedings, such as guardianships or adoptions. In many states, for example, a child of a certain age has a statutory right to veto a proposed adoption. See, e.g., Ariz. Rev. Stat. § 8-106 (2004) (consent of child twelve years of age or older required for adoption); West’s Ann. Cal. Fam. Code § 8602 (2004) (consent of child older than twelve required for adoption). Several states provide a right to counsel for children in contested adoption proceedings. See, e.g., Okla. Stat. Ann. § 7505-1.2 (2004). Where such specialized rules are in effect, they control the more general provisions of this Act.

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

            State law varies on children’s procedural status in abuse, neglect, and custody proceedings. In several states, children are viewed as parties to abuse or neglect proceedings and have the right to participate through their representatives in all stages of the proceedings. See, e.g., Minn. Stat. Ann § 260C.163(2) (child who is subject to petition for protection has right to participate in all proceedings); In re Williams, 805 N.E.2d 1110 (Ohio 2004) (child is party to parental rights termination action and has right to legal counsel). In other states, children are non-parties whose rights of participation are more limited. In the Matter of Comm’r of Soc. Serv’s on Behalf of R.S., 647 N.Y. Supp. 2d 361 (NY Fam. Ct. 1996) (child is not party to child protective proceeding and therefore cannot be deposed as party); In re Anthony S., Jr., 675 N.Y. Supp. 2d 759 (NY Fam. Ct. 1998) (child is not party to termination of parental rights proceeding and therefore cannot seek relief from judgment). In child custody disputes, children typically are not viewed as parties and are not permitted to become parties through intervention. See, e.g., Auclair v. Auclair, 730 A.2d 1260 (Md. App. 1999); J.A.R. v. Superior Court, 877 P.2d 1323 (Ariz. App. 1994); In re Marriage of Hartley, 886 P.2d 665 (Col. 1994). On the other hand, in at least one state, a child who is the subject of a custody dispute is viewed as an indispensable party to the proceeding. See, e.g., In re J.W.F. v. Schoolcraft, 763 P.2d 1217 (Utah App. 1988). Alternatively, some states may prefer to treat the issue as a matter of permissive joinder rather than mandatory joinder. See, e.g., Revised Code Wash. Ann. § 26.26.555 (2006) (child is permissible but not necessary party in parentage action). At the same time, even where children are not viewed as formal parties, they often have many of the rights of parties as a practical matter.

            In addition, this Act may supplement rights already provided by federal law. The Indian Child Welfare Act, for example, authorizes courts to appoint counsel for Indian children in proceedings governed by the ICWA when such appointment is in the best interests of the child. See 25 U.S.C. § 1912(b) (2000). While the ICWA gives courts discretion to appoint counsel in Indian child welfare proceedings, this Act requires appointment of a child’s attorney or best interests attorney if an Indian child is the subject of an abuse or neglect proceeding in state court.

            SECTION 4. MANDATORY APPOINTMENT IN ABUSE OR NEGLECT PROCEEDING.

            (a) In an abuse or neglect proceeding, the court shall appoint either a child’s attorney or a best interests attorney. The appointment must be made as soon as practicable to ensure adequate representation of the child and, in any event, before the first court hearing that may substantially affect the interests of the child.

            (b) In determining whether to appoint a child’s attorney or a best interests attorney, the court may consider such factors as the child’s age and developmental level, any desire for an attorney expressed by the child, whether the child has expressed objectives in the proceeding, and the value of an independent advocate for the child’s best interests.

            (c) The court may appoint one attorney to represent siblings if there is no conflict of interest, even if the attorney serves in different capacities with respect to two or more siblings.             (d) Neither the child nor a representative of the child, whether or not appointed by the court, may waive representation of the child under this section or Section 5.

Comment

            This section requires the appointment of an attorney for every child who is the subject of an abuse or neglect proceeding because of the fundamental importance of the interests at stake. Although the nature of the attorney’s role may vary from case to case, the child’s right to legal representation is a function of basic procedural justice. In abuse or neglect cases, court orders may effectively determine a child’s future life, including family contact and family identity, educational services, geographic location, and cultural affiliation. The appointment of an attorney for the child protects the dignity of the child and helps ensure that the court will make an informed and sensitive decision based on a full understanding of the child’s views and circumstances. Under subsection (d), the child’s right of representation is not subject to waiver by the child or anyone acting on behalf of the child.

            As a condition of receiving federal funding for child abuse prevention and treatment programs, states must appoint a “guardian ad litem” in every judicial proceeding involving an abused or neglected child. See Child Abuse Prevention and Treatment Act, 42 U.S.C.A. §5106a(b)(2)(A)(xiii) (2003) (“CAPTA”). Prior to CAPTA’s enactment in 1974, few states provided children with independent representation in abuse and neglect proceedings. With its incentive of federal funding, CAPTA has led to almost universal appointment of guardians ad litem–either a lawyer or a non-attorney advocate–in juvenile court child protection proceedings. See generally Howard A. Davidson, Child Protection Policy and Practice at Century’s End, 33 Fam L.Q. 765 (1999). This Uniform Act goes a step further than CAPTA and requires the appointment of either a child’s attorney or a best interests attorney for every child involved in an abuse or neglect proceeding. For discussion of how the appointment of either a child’s attorney or best interests attorney may meet the requirements of CAPTA, see Comment to Section 5.

            The Act leaves the choice between a best interests attorney or a child’s attorney to judicial discretion. Because of the exigencies of many abuse and neglect proceedings, courts often must act quickly in appointing attorneys for children. For practical purposes, judges who lack detailed information about a child’s circumstances may need to use the child’s age as a rough measure for purposes of the initial designation of an attorney’s role. Ordinarily, a child’s attorney would be appropriate for an older child capable of exercising considered judgment, while a best interests attorney would be appropriate for a nonverbal or very young child incapable of expressing a considered choice about issues that are relevant to the proceeding. Nevertheless, an attorney appointed as a best interests attorney may ask the court to be redesignated as a child’s attorney after meeting with the child and concluding that the role of child’s attorney is more appropriate. See Section 9(c).

            A child’s capacity to direct counsel is contextual and incremental and is not simply a function of chronological age. In determining whether a child is capable of directing an attorney, the court should review the child’s file, reports from case workers, and any other sources of information about the child’s circumstances. To the extent feasible, the court should focus on the child’s decision-making process rather than the child’s choices themselves, and the court’s determination should be informed by insights drawn from child development science. If a child has voiced a desire for a lawyer, that would weigh on the side of appointing a child’s attorney to provide the child with a traditional advocate. A preschool-aged child who is allegedly the victim of sexual abuse by a parent, on the other hand, would most likely benefit from representation by a best interests lawyer. Moreover, because of the evolving nature of children’s competencies, a child for whom a best interests lawyer is appropriate at one hearing or proceeding may have matured sufficiently to warrant the appointment of a child’s attorney at a later hearing or proceeding. Section 9(c) addresses the authority of a court to change the nature of an attorney’s appointment from best interests attorney to child’s attorney based on new information not available at the time of the original appointment.

            The disjunctive in subsection (a) makes clear that the court may not appoint a child’s attorney and a best interests attorney for the same child in the original order of appointment. Dual representation by two lawyers functioning in different roles would likely be confusing to the child and could result in the lawyers taking different positions in court for the same child client. Although the court may appoint an attorney and a court-appointed advisor for the same child in the original order of appointment, that form of dual representation does not pose the same tensions as would representation by two competing lawyers. In very unusual circumstances, however, a court may determine after the original appointment that appointment of a second attorney for a child is warranted by the needs of the case. This Act permits such an appointment in the discretion of the court. See Sections 9(c) and 12(d) and (e).

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

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

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

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

Alternative A

            (a) In an abuse or neglect proceeding:

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

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

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

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

Alternative B

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

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

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

End of Alternatives

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

Comment

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

            The options within this section also may have implications for a state’s compliance with federal law. As a condition of receiving federal funding for child abuse prevention and treatment programs, states must appoint a “guardian ad litem” for every child who is the subject of an abuse or neglect proceeding. Child Abuse Prevention and Treatment Act, 42 U.S.C.A. § 5106a(b)(2)(A)(xiii) (2003) (“CAPTA”). See Comment to Section 4. The federal Act does not define the role of the guardian ad litem beyond stating that the guardian, who may be an attorney or court appointed special advocate, shall “(I) obtain first-hand, a clear understanding of the situation and needs of the child; and (II) make recommendations to the court concerning the best interests of the child.” Id. While some states view either a best interests attorney or a child’s attorney as fulfilling CAPTA’s guardian ad litem requirement, other states may interpret CAPTA more narrowly. For an analysis of the meaning of the CAPTA requirement, see In re Charles, 102 Cal. App. 4^th 869, 125 Cal. Rptr. 2d 868 (Cal. App. 2002) (holding that either guardian ad litem or legal counsel satisfies CAPTA). For those states that interpret CAPTA to always mandate a best interests advocate, Alternative A requires a court-appointed advisor unless the court has already appointed a best interests attorney. Alternative B, on the other hand, would be appropriate for those states that view CAPTA’s requirement as fully satisfied by the appointment of either a child’s attorney or a best interests attorney.

            CAPTA’s language on its face requires the appointed representative “to make recommendations to the court concerning the best interests of the child.” See 42 U.S.C.A. § 5106a(b)(2)(A)(xiii) (2003). A best interests attorney by definition should satisfy CAPTA, since that attorney’s role is to provide legal representation for a child to protect the child’s best interests. Although the best interests attorney cannot submit a recommendation to the court as a witness, see Section 17, the attorney ordinarily will take a position in the proceeding regarding the child’s interests and advocate that position through legal argument based on admissible evidence. Even apart from CAPTA, courts may want an independent assessment of best interests to ensure a complete presentation of evidence. See, e.g., Debra H. Lehrmann, Who Are We protecting?, 63 Tex. B.J. 122 (2000).

            The child’s attorney also may satisfy CAPTA, and states that have required appointment of legal “counsel” for children in child protection proceedings have never been held to be out of compliance with CAPTA. See, e.g., Mass. Gen. Laws Ann.119 §29 (2006)(requiring appointment of “counsel” for child in child protection proceedings); West’s Ann. Code of Md. §3-813 (2006)(same). Even a client-directed lawyer functioning in the role of a child’s attorney will ultimately facilitate the court’s resolution in the child’s best interests and will need to address the child’s interests while still following the child’s directives. Moreover, a child’s attorney will perform myriad services on the child’s behalf to ensure protection of the child’s legal rights and interests. Also, when the child cannot or does not direct the attorney as to a particular issue–a frequent occurrence with any client–the child’s attorney may advocate a position the lawyer believes is in the child’s best interests so long as it is not inconsistent with the child’s expressed objectives. See Section 12(d)(1). Finally, the attorney must take remedial action if the child’s expressed objectives will subject the child to a risk of substantial harm. See Section 12(e). For these reasons, the second bracketed option in this section treats the appointment of a court-appointed advisor as discretionary when either a child’s attorney or best interests attorney has been appointed. In support of this more flexible interpretation of the CAPTA guardian ad litem requirement, see U.S. Department of HHS Children’s Bureau, Adoption 2002: The President’s Initiative on Adoption and Permanence for Children, Commentary to Guideline 15A.

            SECTION 6. DISCRETIONARY APPOINTMENT IN CUSTODY PROCEEDING.

            (a) In a custody proceeding, the court, on its own or on motion, may appoint either a child’s attorney or a best interests attorney. Whether or not the court appoints an attorney, the court may appoint a court-appointed advisor. An appointment may be made at any stage of the proceeding and the order of appointment must designate the role of the appointee.

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

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

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

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

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

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

                        (6) the likelihood of a geographic relocation of the child that could substantially reduce the child’s time with:

                                    (A) a parent;

                                    (B) a sibling; or

                                    (C) another individual with whom the child has a close relationship;

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

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

                        (9) any dispute as to paternity of the child.

            (c) If the court determines to make an appointment under subsection (a), in determining whether a child’s attorney, best interests attorney, or court-appointed advisor is appropriate, the court shall consider such factors as the child’s age and developmental level, any desire for an attorney expressed by the child, whether the child has expressed objectives in the proceeding, the value of an independent advocate for the child’s best interests, and the value of a court-appointed advisor’s expertise.

Comment

            This section leaves the appointment of an attorney or court-appointed advisor for children in custody cases to judicial discretion, but courts should recognize the significant benefit in having a representative for a child under certain circumstances. If a court anticipates that the evidentiary presentation by the parties will be incomplete, distorted, or otherwise inadequate, the appointment of a representative for the child can be particularly helpful. Moreover, one of the key values of a child’s representative is to