attorneys for children · resume for john w. “jack” lundeen 4040 douglas way po box 1146 lake...
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Attorneys for Children
Deanne Darling 2123 Kaen Road
Oregon City, OR 97045 503-557-2841
1975 Bachelor of Social Work Colorado State University 1981 Juris Doctorate Lewis & Clark NW School of Law 1981-95 Private practice of Law; West Linn, Oregon General practice/w heavy emphasis On domestic relations law 1985-88 Pro-tem Judge State of Oregon 1987-95 Municipal Court Judge Lake Oswego, Oregon 1987-88 President Clackamas Co. Bar Assoc. 1995- Circuit Court Judge-Clackamas County State of Oregon First woman judge in county. First & only
Woman to serve as District Court Judge in this county
1999-2008 Chair-Juvenile & Family Law Comm. Oregon Judicial Conference 1999 Recipient of the Chief Justices Juvenile Court Champion Award 2009/10 President - Circuit Judges Association 2009 Recipient of the County Bar Assoc Lifetime Achievement award I have served on numerous bar committees: Legal Education; Lawyer Referral Services; Judicial Administration; Byers & Tongue Judicial Needs Committees: Local Professional Responsibility Committee and served on the Juvenile Law Subcommittee of the Oregon Law Commission and the OYA advisory board. For several years I have been a presenter for the National Council of Juvenile and Family Court Judges and for the Center for Effective Public Policy on the topic of managing juvenile sex offenders. I have been the lead judge in Teen Drug Court since its creation in 2000, and led the dependency drug court from inception in 2001 thru 2009. I operate a truancy court for several
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of my local school districts. I have presided over all the delinquency cases in Clackamas County since 1996. I have been married since 1973 to Bob. We have two adult children. We live on a farm and raise horses, cattle and hay.
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Resume for John W. “Jack” Lundeen
4040 Douglas WayPO Box 1146
Lake Oswego, Oregon 97035(503) 635 9393 [email protected]
Born in Concord, California in May of 1947, the Lundeen family moved toMidland, Michigan in 1962 where Jack’s dad followed the corporate call to DowChemical’s headquarters. Jack graduated from Midland High in June,1965
In the Fall of ‘65 Lundeen enrolled at Kalamazoo College, where he spent a yearand a half until he was drafted while taking a term off of college in the spring of 1967. Rather than risking service as a junior Army officer in Vietnam, Lundeen opted for fouryears in the Navy, from which he was honorably discharged in January, 1971. He wasprincipally responsible for managing radio shacks in Rhode Island and the PanamaCanal Zone
Lundeen completed college, obtaining a Bachelor in General Studies from theUniversity of Michigan in December, 1973. He also earned a teaching certificate, whichhe took to Australia where he taught Australian history and the Queen’s English to highschool students in the small mining town of Lithgow in New South Wales. Teaching wasfun and, after becoming an attorney, Jack has continued teaching evening classes inlocal colleges, currently teaching Family Law to paralegal students at PCC.
Jack took the LSAT’s and enrolled at Lewis and Clark Law School in 1976,graduating in the summer of 1979. He hung out his shingle on Boones Ferry Road, inthe Lake Grove district of Lake Oswego, where he has practiced for 30+ years, with apractice focusing principally on family law. Lundeen continues as a sole practitioner,sharing office space since 1982 with 14 other sole practitioners with a variety of practicefocii.
In addition to his legal practice, Jack Lundeen has co-convened the ClackamasCounty Family Law Group for 10+ years, and has been on the boards of the St AndrewLegal Clinic, Oregon Academy of Family Law Practitioners, the Clackamas County BarAssociation, and Family Stepping Stones. He continues to serve as president of theSenior Citizen Council of Clackamas County. Lundeen has coached mock trial,organized CLE’s and mentors young attorneys. He has been active in his businesscommunity, serving on the board of the Lake Grove Business Association, as well asserving on a number of citizen advisory committees over the years.
Jack and Jan Blakeslee consummated a long-term relationship with marriage inDecember 2010. Jack has two daughters. Erika is an accountant withPriceWaterhouse Cooper. Kirsten is an alumni and development officer at BostonUniversity.
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
Department of Domestic Relations
In the Matter of the Marriage ofCase No.
Petitioner. ) ORDER FOR APPOINTMENT
OF ATTORNEY FOR MINOR
CHILD(REN) OF THEPARTIES
Respondent.
THIS MATTER having come before the Court upon the Court's motion for the
Appointment of () as attorney for the minor children and the files and records herein,
and the Court being fully advised now, therefore,
IT IS HEREBY ORDERED THAT:
1. Under the provisions of ORS 107.425(6) and 2007 Multnomah County
Supplementary Local Rule 8.085, is appointed as attorney for the minor
child(ren) of the parties.
2. Both parties shall provide any and all information, including, but not
limited to, medical, dental, Department of Human Services, and
C.A.R.E.S. records pertaining to the minor child(ren) of the parties, and
each party shall sign any and all releases for obtaining any information
requested.
3. Both parties shall encourage mutual access and communication between
the attorney and the child(ren), and neither of the parties shall interfere in
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^^ any way with any communications between and the child(ren).
4. Both parties are absolutely enjoined from discussing with the child(ren)
the nature, extent or content of any communication between and the
child(ren).
5. Both parties and shall cooperate in the scheduling of the time and
location of appointments. However, in the unlikely event that such
cooperation proves difficult, shall have the sole discretion and authority
to determine the place, duration and circumstances of his/her interview
and interactions with the child(ren). In any event, unless otherwise agreed
to by the appropriate party, shall provide at least 48 hours notice to the
appropriate party of the time and place of such planned interviews with the
rlMl
children.
6. The fees and costs of services shall be paid as follows:
7. OTHER:
DATED this Day of , 2006.
CIRCUIT COURT JUDGE
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American Bar Association Section of Family LawStandards ofPractice for Lawyers Representing
Children in Custody Cases
Approved by the American Bar Association House ofDelegatesAugust 2003
I. INTRODUCTION
Children deserve to have custody proceedings conducted in the manner least harmful tothem and most likely to provide judges with the facts needed to decide the case. By adoptingthese Standards, the American Bar Association sets a standard for goodpractice andconsistency in the appointment and performance of lawyers for children in custody cases.
Unfortunately, few jurisdictions have clear standards to tell courts and lawyers when orwhy alawyerfor a childshould be appointed, orprecisely whatthe appointee should do. Toolittle has been done to make the public, litigants, domestic relations attorneys, the judiciary,or children's lawyers themselves understand children's lawyers' roles, duties and powers.Children's lawyers have had to struggle with the very real contradictions between therrperceived roles as lawyer, protector, investigator, and surrogate decision maker. Thisconfusion breeds dissatisfaction andundermines public confidence in the legal system. TheseStandards distinguish two distinct types of lawyers for children: (1) The Child's Attorney,who provides independent legal representation in a traditional attorney-client relationship,giving the child a strong voice in the proceedings; and (2) The Best Interests Attorney, whoindependently investigates, assesses and advocates the child's best interests as a lawyer.While some courts in the past have appointed a lawyer, often called a guardian ad litem, toreport or testify on the child's best interests and/or related information, this is not a lawyer'srole under these Standards.
These Standards seek to keep the best interests of children at the center of courts'attention, andto build public confidence in a just and fair court system that works to promotethe best interests of children. These Standards promote quality control, professionalism,clarity, uniformity and predictability. They require that: (1) all participants in a caseknow theduties, powers and limitations of the appointed role; and (2) lawyers have sufficient training,qualifications, compensation, time, and authority to do their jobs properly with the supportand cooperation of the courts and other institutions. The American Bar Associationcommends these Standards to all jurisdictions, and to individual lawyers, courts, and childrepresentation programs.
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II. SCOPE AND DEFINITIONS
A. Scope
These Standards apply to the appointment and performance of lawyers serving asadvocates for children or their interests in any case where temporary or permanent legalcustody, physical custody, parenting plans, parenting time, access, or visitation areadjudicated, including but not limited to divorce, parentage, domestic violence, contestedadoptions, and contested private guardianship cases. Lawyers representing children in abuseand neglect cases should follow the ABA Standards of Practice for Representing a Child inAbuse and Neglect Cases (1996).
B. Definitions
1. "Child's Attorney": A lawyer who provides independent legal counsel for a childand who owes the same duties of undivided loyalty, confidentiality, andcompetent representation as are due an adult client.
2. "Best Interests Attorney": A lawyer who provides independent legal services forthe purpose of protecting a child's best interests, without being bound by thechild's directives orobjectives. .^
Commentary
These Standards and these definitions apply to lawyers fitting these descriptionsregardless of the different titlesused in various states, and regardless ofwhetherthe lawyerisappointed by the court or retained by the child.
A lawyer should be either a Child's Attorney or a Best Interests Attomey. The dutiescommon to both roles are found in Part m oftheseStandards. The unique duties of each aredescribed separately in Parts TV and V. The essential distinction between the two lawyerroles is that the Best Interests Attorney investigates and advocates the best interests of thechild as a lawyer in the litigation, while the Child's Attorney is a lawyer who represents thechild as a client Neither land of lawyer is a witness. Form should follow function indeciding which kind of lawyer to appoint The role and duties of the lawyer should betailoredto the reasons for the appointment andthe needs ofthe child.
These Standards do not use the term "Guardian Ad Litem." The role of "guardian adlitem" has become too muddled through different usages in different states, with varyingconnotations. It is avenerable legalconceptthat has oftenbeen stretched beyondrecognitionto serve fundamentally new functions, such as parenting coordinator, referee, faciHtator,.arbitrator, evaluator, mediator and advocate. Asking one Guardian Ad Litem to performseveral roles at once, to be all things to all people, is a messy, ineffective expedient A courtseeking expert or lay opinion testimony, written reports, or other non-traditional servicesshould appoint an individual for that purpose, and make clear that that person is not serving "^%
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as alawyer, and is not aparty. This person can be either anon-lawyer, or alawyer whochooses to serve inavolunteer non-lawyer capacity.
HI. DUTIES OF ALL LAWYERS FOR CHILDREN
In addition to their general ethical duties as lawyers, and the specific duties set out inParts IVand V, Child's Attorneys and Best Interests Attorneys also have the duties outlinedin this section.
A. Accepting Appointment
The lawyer should accept an appointment only with afull understanding ofthe issues andthe functions to be performed. If the appointed lawyer considers parts of the appointmentorder confusing or incompatible with his or her ethical duties, the lawyer should (1) declinethe appointment, or.(2) inform the court ofthe conflict and ask the court to clarify or changethe terms ofthe order, or (3) both.
B. Lawyer's Roles
A lawyer appointed as aChild's Attorney or Best Interests Attorney should not play anyother role in the case, and should nottestify, file areport, or make recommendations.
Commentary
Neither kind of lawyer should be awitness, which means that the lawyer should not becross-examined, and more importantly should neither testify nor make awritten or oral reportor recommendation to the court, but instead should offer traditional evidence-based legalarguments such as other lawyers make. However, explaining what result a client wants, orproffering what one hopes to prove, isnot testifying; those are things all lawyers do.
If these Standards are properly applied, it will notbe possible for courts to make a dualappointment, but there may be cases in which such an appointment was made before theseStandards were adopted. The Child's Attorney role involves aconfidential relationship withprivileged communications. Because the child has aright to confidentiality and advocacy ofhis or her position, the Child's Attorney can never abandon this role while remaininginvolved in the case in any way. Once a lawyer has a lawyer-client relationship with aminor, he or she cannot and should not assume any other role for the child, especially as BestInterests Attorney oras awitness who investigates and makes arecommendation.
C. Independence
The lawyer should be independent from the court and.other participants inthe litigation;and unprejudiced and uncompromised in his or her independent action. The lawyer has theright and the responsibility to exercise independent professional judgment in carrying out theduties assigned bythe court, and to participate in the case as fully and freely as alawyer for aparty.
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Commentary
The lawyer should not prejudge the case. A lawyer may receive payment from a court, agovernment entity, or even from a parent, relative, or other adult so long as the lawyer retainsthe full authority for independent action.
D. Initial Tasks
Immediately after being appointed, the lawyer should review the file. The lawyer shouldinform other parties or counsel of the appointment, and that as counsel of record he or sheshould receive copies of pleadings and discovery exchanges, and reasonable notification ofhearings and ofmajor changes of circumstances affecting the child.
E. Meeting With the Child
The lawyer should meet with the child, adapting all communications to the child's age,level of education, cognitive development, cultural background and degree of languageacquisition, using an interpreter if necessary. The lawyer should inform the child about thecourt system, the proceedings, and the lawyer's responsibilities. The lawyer should elicit andassess the child's views.
Commentary
Establishing and maintaining a relationship with a child is the foundation ofrepresentation. Competent representation requires a child-centered approach anddevelopmentally appropriate communication. All appointed lawyers should meet with thechild and focus on the needs and circumstances of the individual child. Even nonverbal
children can reveal much about their needs and interests through their behaviors anddevelopmental levels. Meeting with the child also allows the lawyer to assess the child'scircumstances, often leading to a greater understanding of the case, which may lead tocreative solutions in the child's interest
The nature of the legal proceeding or issue should be explained to the child in adevelopmentally appropriate manner. The lawyer must speak clearly, precisely, and in termsthe child can understand. A child may not understand legal terminology. Also, because of aparticular child's developmental limitations, the lawyer may not completely understand whatthe child says. Therefore, the lawyer must learn how to ask developmentally appropriate,non-suggestive questions and how to interpret the child's responses. The lawyer may workwith social workers or other professionals to assess a child's developmental abilities and tofacilitate communication.
While the lawyer should always take the child's point of view into account, cautionshould be used because the child's stated views and desires may vary over time or may be theresult of fear, intimidation and manipulation. Lawyers may need to collaborate with other '*%professionals to gain a full understanding ofthe child's needs and wishes.
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F. Pretrial Responsibilities
The lawyer should:
1. Conduct thorough, continuing, and independent discovery and investigations.
2. Develop atheory and strategy ofthe case to implement at hearings, includingpresentation of factual and legal issues.
3. Stay apprised of other court proceedings affecting the child, the parties and otherhousehold members.
4. Attend meetings involving issues within the scope ofthe appointment.
5. Take any necessary and appropriate action to expedite the proceedings.
6. Participate in, and, when appropriate, initiate, negotiations and mediation. Thelawyer should clarify, when necessary, that she or he is not acting as amediator;and a lawyer who participates in a mediation should be bound by theconfidentiality andprivilege rules governing themediation.
7. Participate in depositions, pretrial conferences, and hearings.
8. File or make petitions, motions, responses or objections when necessary.
9. Where appropriate and not prohibited by law, request authority from the court topursue issues on behalfof the child, administratively or judicially, even if thoseissues donot specifically arise from the court appointment
Commentary
The lawyer should investigate the facts of the case to get a sense of the people involvedand the real issues in the case, just as any other lawyer would. This is necessary even for aChild's Attomey, whose ultimate task is to seek the client's objectives. Best InterestsAttorneys have additional investigation duties describedin StandardV-E.
By attending relevant meetings, the lawyer can present the child's perspective, gatherinformation, and sometimes help negotiate a full or partial settlement. The lawyer may notneed to. attend if another person involved in the case, such as a social worker, can obtaininformation or present the child's perspective, or when the meeting will not be materiallyrelevant to any issues in the case.
The lawyer is in apivotal position innegotiations. The lawyer should attempt to resolvethe case in the least adversarial manner possible, considering whether therapeuticintervention, parenting or co-parenting education, mediation, or other dispute resolutionmethods are appropriate. The lawyer may effectively assist negotiations of the parties andtheir lawyers by focusing onthe needs ofthe child, including where appropriate the impact of
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domestic violence. Settlement frequently obtains at least short-term relief for all partiesinvolved and is often the best way to resolve a case. The lawyer's role is to advocate thechild's interests and point of view in the negotiationprocess. If a party is legally represented,it is unethical for a lawyer to negotiate with the party directly without the consent of theparty's lawyer.
Unless state law explicitly precludes filing pleadings, the lawyer should file anyappropriate pleadings on behalf of the child, including responses to the pleadings of otherparties, to ensure that appropriate issues are properly before the court and expedite thecourt's consideration of issues important to the child's interests. Where available to litigantsunder state laws or court rules or by permission ofthe court, relief requested may include, butis not limited to: (1) A mental or physical examination of a party or the child; (2) Aparenting, custody or visitation evaluation; (3) An increase, decrease, or termination ofparenting time; (4) Services for the child or family; (5) Contempt for non-compliance with acourt order; (6) A protective order concerning the child's privileged communications;(7) Dismissal ofpetitions or motions.
The child's interests may be served through proceedings not connected with the case inwhich the lawyer is participating. For example, issues to be addressed may include:(1) Child support; (2) Delinquency or status offender matters; (3) SSI and other publicbenefits access; (4) Mental health proceedings; (5) Visitation, access or parenting time withparents, siblings; or third parties, (6) Paternity; (7) Personal injury actions;(8) School/education issues, especially for a child with.disabilities; (9) Guardianship; (10)Termination of parental rights; (11) Adoption; or (12) A protective order concerning thechild's tangible or intangible property.
G. Hearings
The lawyer should participate actively in all hearings and conferences with the court onissues within the scope of the appointment Specifically, the lawyer should:
1. Introduce herself or liimself to the court as the Child's Attorney or Best InterestsAttorney at the beginning of any hearing.
2. Make appropriate motions, including motions in limine and evidentiaryobjections, file briefs and preserve issues for appeal, as appropriate.
3. Present and cross-examine witnesses and offer exhibits as necessary.
4. If a child is to meet with the judge or testify, prepare the child, familiarizing thechild with the places, people, procedures, and questioning that the child will beexposed to; and seek to minimize any harm to the child from the process.
5. Seek to ensure that questions to the child are phrased in a syntactically and. linguistically appropriate manner and that testimony is presented in a manner that
is admissible.*^\
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I 6. Where appropriate, introduce evidence and make arguments on the child'scompetency to testify, or the reliability of the child's testimony or out-of-courtstatements. The lawyer should be familiar with the current law and empiricalknowledge about children's competency, memory, and suggestibility.
, 7. Make a closing argument, proposing specific findings of fact and conclusions oflaw.
8. Ensure that awritten order is made, and that it conforms to the court's oral rulingsand statutorily required findings and notices.
Commentary
Although the lawyer's position may overlap with the position of one or more parties, thelawyer should be prepared to participate fully in any proceedings and not merely defer to theother parties. The lawyer should address the child's interests, describe the issues from thechild's perspective, keep the case focused on the child's needs, discuss the effect of variousdispositions on the child, and, when appropriate, present creative alternative solutions to thecourt.
A brief formal introduction should not be omitted,because in order to make an informeddecision on the merits, the court must be rnindful ofthe lawyer's exact role, with its specific
r duties and constraints. Even though .the appointment order states the nature of theappointment, judges should bereminded, at each hearing, which role the lawyer is playing.If there is a jury, a brief explanation of the rolewill be needed.
The lawyer's preparation of the child should include attention to the child'sdevelopmental needs and abilities. The lawyer should also prepare the child for thepossibility that the judge may render a decision against the child's wishes, explaining thatsuch a result would not be the child's fault.
If the child does not wish to testify orwould be harmed by testifying, the lawyer shouldseek a stipulation of the parties not to call the child as a witness, or seek a protective orderfrom the court. The lawyer should seek to minimize the adverse consequences by seekingany appropriate accommodations permitted by law so that the child's views are presented tothe court in the manner least harmful to the child, such as having the testimony takeninformally, in chambers, without the parents present. The lawyer should seek anynecessaryassistance from the court, including location of the testimony, determination of who will bepresent, and restrictions on the manner and phrasing of questions posed to the child. Thechild should be told beforehand whether in-chambers testimony will be shared with others,such as parents who might be excluded from chambers.
Questions to the child should be phrased consistently with thelaw and research regardingchildren's testimony, memory, and suggestibility. The information a child gives is oftenmisleading, especially if adults have not understood how to ask children developmentallyappropriate questions and how to interpret their answers properly. The lawyer must become
^^ skilled at recognizing the child's developmental limitations. It may be appropriate to presentexpert testimony on the issue, or have an expert present when a young child is directly
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involved in the litigation, to point out any developmentally inappropriate phrasing of •'questions.
The competency issuemay arise in the unusual circumstance of the child being called asa live witness, as well as when the child's input is sought by other means such as in-chambers meetings, closed-circuit television testimony, etc. Many jurisdictions haveabolished presumptive ages of competency and replaced them with more flexible, case-by-case analyses. Competency to testify involves the abilities to perceive and relate. Ifnecessaryand appropriate, the lawyer should present expert testimony to establish competency orreliability or to rehabilitate any impeachment ofthe child on those bases.
H. Appeals
1. If appeals on behalf of the child are allowed by state law, and if it has beendecided pursuant to Standard IV-D or V-G that such an appeal is necessary, thelawyer should take all steps necessary to perfect the appeal and seek appropriatetemporary orders or extraordinary writs necessary to protect the interests of thechild during the pendency ofthe appeal.
2. The lawyer should participate in any appeal filed by another party, concerningissues relevant to the child and within the scope of the appointment, unlessdischarged.
3. When the appeals court's decision is received, the lawyer should explain it to the /child.
Commentary
The lawyer should take a position in any appeal filed by a party or agency. In somejurisdictions, the lawyer's appointment does not include representation on appeal, but if thechild's interests are affected by the issues raised in the appeal, the lawyer should seek anappointment on appeal or seek appointment ofappellate counsel.
As with other court decisions, the lawyer should explain in terms the child canunderstand the nature and consequences of the appeals court?s decision, whether there arefurther appellate remedies, and what more, if anything, will be done in the trial courtfollowing the decision.
I. Enforcement
The lawyer should monitor the implementation of the court's orders and address any noncompliance.
J. End ofRepresentation
When the representation ends, the lawyer should inform the child in a developmentallyappropriate manner. *j
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IV. CHILD'S ATTORNEYS
A. Ethics andConfidentiality
1. Child's Attorneys are bound by their states' ethics rules in all matters.
2. A Child's Attomey appointed to represent two or more children should remainalert to the possibility of a conflict that could require the lawyer to declinerepresentation orwithdraw from representing all of the children.
Commentary
The child is an individual with independent views. To ensure that the child's independentvoice is heard, the Child's Attorney should advocate the child's articulated position, andowes traditional duties to the child as client, subject to Rules 1.2(a) and 1.14 of the ModelRules ofProfessional Conduct (2002).
The Model Rules of Professional Conduct (2002) (which intheir amended form may notyethave been adopted inaparticular state) impose abroad duty of confidentiality concerningall "information relating to therepresentation of a client", butthey also modify the traditionalexceptions to confidentiality. Under Model Rule 1.6 (2002), a lawyer may reveal informationwithout the client's informed consent "to theextent the lawyer reasonably believes necessary... to prevent reasonably certain death or substantial bodilyharm", or "to comply with otherlaw ora court order", or when "the disclosure is impliedly authorized in order to carry out therepresentation". Also, according to Model Rule 1.14(c) (2002), "the lawyer is impliedlyauthorized under Rule 1.6(a) to reveal information about the client, but only to the"extentreasonably necessary to protect the client's interests" when acting under Rule 1.14 to protecta client with "(iiminished capacity" who"is atrisk of substantial physical, financial or otherharm."
Model Rule 1.7 (1)(1) (2002) provides that"a lawyershall not represent a client if... therepresentation of one client will be directly adverse to another client... ." Some diversitybetween siblings' views andpriorities does not posea direct conflict But when two siblingsaim to achieve fundamentally incompatible outcomes in the case as a whole, they are"directly adverse." Comment [8] to Model Rule 1.7 (2002) states: "... a conflict of interestexists if there is a significant risk that a lawyer's abilityto consider, recommendorcarry outan appropriate course of action for the client will be materially limited ... a lawyer asked torepresent several individuals ... is likely to be materially limited in the lawyer's abihty torecommend or advocate all possible positions that eachmight take because of the lawyer'sduty of loyalty to the others. ... The critical questions are the likelihood that a difference ininterests will eventuate and, if it does, whether it will materially interfere with the lawyer'sindependent professional judgment in considering alternatives or foreclose courses of actionthat reasonablyshould be pursued onbehalfofthe client"
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B. Informing and Counseling the Client
In a developmentally appropriate manner, the Child's Attomey should:
1. Meet with the child upon appointment, before court hearings, when apprised ofemergencies or significant events affecting the child, and at other times as needed.
2. Explain to the child what is expected to happen before, during and after eachhearing.
3. Advise the child and provide guidance, conimunicating in a way that maximizesthe child's ability to direct the representation.
4. Discuss each substantive order, and its consequences, with the child.
Commentary
Meeting with the child is important before court hearings and case reviews. Such in-personmeetings allow the lawyer to explain to the childwhat is happening,what alternativesmight be available, and what will happen next
The Child's Attomey has an obligation to explain clearly, precisely, and in terms theclientcanunderstand, themeaning and consequences ofthe client's choices. A child may notunderstand the implications of a particular course of action. The lawyerhas a duty to explainin a developmentally appropriate way such information as will assist the child in havingmaximum input in decision-making. The lawyer should inform the child of the relevant factsand applicable laws and the ramifications of taking various positions, whichmay include theimpact of such decisions onother family members oron future legal proceedings. The lawyermay express an opinion concerning the likelihood of the court or other parties acceptingparticular positions. The lawyer may inform the child of an expert's recommendationsgermane to the issue.
As in any other lawyer/client relationship, the lawyer may express his or her assessmentof the case, and of the best position for the child to take, and the reasons underlying suchrecommendation, and may counsel against the pursuit of particular goals sought by the client.However, a child may agree with thelawyer for inappropriate reasons. A lawyer mustremainaware of the power dynamics inherent in adult/child relationships, recognize that the childmay be more susceptible to mtimidationand manipulation than some adult clients, and striveto detect and neutralize those factors. The lawyer should carefully choose the best time toexpress his or her assessment of the case..The lawyer needs to understand what the childknows, and what factors are influencing the child's decision. The lawyer should attempt todetermine from the child's opinion and reasoning what factors have been most influential orhave been confusing or glided over by the child.
The lawyer for the child has dual fiduciary duties to the child which must be balanced.On the one hand, the lawyer has a duty to ensure that the client is given the informationnecessary to make an informed decision, including advice and guidance. On the Other hand,
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the lawyer has aduty not to overbear the will ofthe client While the lawyer may attempt topersuade the child to accept a particular position, the lawyer may not advocate apositioncontrary to the child's expressed position except as provided by the applicable ethicalstandards.
Consistent with the rules ofconfidentiality and with sensitivity to the child's privacy, thelawyer should consult with the child's therapist and other experts and obtain appropriaterecords. For example, achild's therapist may help the child to understand why an expressedposition is dangerous, foolish, or not in the child's best interests. The therapist might alsoassist the lawyer in understanding the child's perspective, priorities, and individual needs.Similarly, significant persons in the child's life may educate the lawyer about the child'sneeds, priorities, and previous experiences.
As developmentally appropriate, the Child's Attorney should consult the child prior toany settlement becoming binding.
The child is entitled to understand what the court has done and what that means to the.child, at least with respect to those portions of the order that directly affect the child.Children sometimes assume that orders are final and not subject to change. Therefore, thelawyershould explain whether the ordermay be modified at another hearing, orwhethertheactions ofthe parties may affect how the order is carriedout.
C. Client Decisions
The Child's Attorney should abide by the client's decisions about the objectives of therepresentation with respect to eachissue on whichthe childis competent to direct the lawyer,and does so. The Child's Attorney should pursue the child's expressed objectives, unless thechild requests otherwise, and follow the child's direction, throughout the case.
Commentary
The child is entitled to determine the overall objectives to be pursued. The Child'sAttorney may make certain decisions about the manner of achieving those objectives,particularly on procedural matters, as any adult's lawyer would. These Standards do notrequire the lawyer to consult with the child on matters which would not require consultationwith an adult client, nor to discuss wifh the child issues for which the child's developmental,limitations make it not feasible to obtain the child's direction, as with an infant or prevefbalchild.
1. The Child's Attorney should make a separate determination whether the child has"diminished capacity" pursuant to Model Rule 1.14 (2000) with respect to eachissuein which the child is calleduponto direct the representation.
Commentary
These Standards do not presume that children of certain ages are"impaired,""disabled,""incompetent," or lack capacity to determine their position in litigation. Disability is
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contextual, incremental, and may be intermittent The child's abihty to contribute to adetermination ofhis or her position is functional, depending upon the particular position andthe circumstances prevailing at the time the position must be determined. Therefore, a childmay be able to determine some positions in the case but not others. Similarly, a child may beable to direct the lawyer with respect to a particular issue at one time but not at another.
2. If the child does not express objectives of representation, the Child's Attorneyshould make a good faith effort to determine the child's wishes, and advocateaccording to those wishes if they are expressed. If a child does not or will notexpress objectives regarding a particular issue or issues, the Child's Attorneyshould determine and advocate the child's legal interests or request theappointment of a Best Interests Attorney.
Commentary
There are circumstances in which a childis unableto express any positions, as in the caseof a preverbal child. Under such circumstances, the Child's Attorney should represent thechild's legal interests or request appointment of a Best Interests Attorney. "Legal interests"are distinct from"best interests" and from the child's objectives. Legalinterests are interestsof the child that are specifically recognized in law and that can be protected through thecourts. A child's legal interests could include, for example, depending on the nature of thecase, a special needs child's right to appropriate educational, medical, or mental healthservices; helping assure that children needing residential placement are placed in the least *^restrictive setting consistent with their needs; a child's childsupport, governmental andother /financial benefits; visitation with siblings, family members, or others the child wishes tomaintain contact with; and achild's due process or other procedural rights.
The child's failure to express a position is different frombeing unable to do so, and fromdirecting the lawyer notto take a position on certain issues. The child may have no opinionwith respect to a particular issue, or may delegate the decision-making authority. The childmay not want to assume the responsibility of expressing a position because of loyaltyconflicts or the desire not tohurt one of the parties. In that case, the lawyer is free to pursuethe objective that appears tobe in the client's legal interests based oninformation the lawyerhas, and positions the child has already expressed. A position chosen by the lawyer shouldnot contradict or undermine other issues about which the child has expressed a viewpointHowever, before reaching that point the lawyer should clarify with the child whether thechild wants the lawyer to take a position, orto remain silent with respect to that issue, orwants the point of view expressed only if the party is out of the room. The lawyer is thenbound by the child's directive.
3. If the Child's Attorney determines that pursuing the child's expressed objectivewould put the child at risk of substantial physical, financial or other harm, and isnot merely contrary to the lawyer's opinion of the child's interests, the lawyermay request appointment of a separate Best Interests Attorney and continue torepresent the child's expressed position, unless the child's position is prohibitedby law or without any factual foundation. The Child's Attorney should not revealthe reason for the request for aBest Interests Attorney, which would compromise r^%
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TAB 15F - 12
the child's position, unless such disclosure is authorized by the ethics rule onconfidentiality that is in force in the state.
Commentary
One ofthe most difficult ethical issues for lawyers representing children occurs when thechild is able to express a position and does so, but the lawyer believes that the positionchosen is wholly inappropriate or could result in serious injury to the child. This isparticularly likely to happen with respect to an abused child whose home is unsafe, but whodesires toremain or return home. A child may desire to live inadangerous situation becauseit is all he or she knows, because of a feeling ofblame or ofresponsibility to take care of aparent, or because ofthreats or other reasons to fear the parent The child may choose todealwith a known situation rather than risk the unknown.
It should be remembered in this context that the lawyer is bound to pursue the client'sobjectives only through means permitted by law and ethical rules. The lawyer may besubject personally to sanctions for taking positions that are not well grounded in fact andwarranted by existing law or a good faith argument for the extension, modification, orreversal ofexisting law.
In most cases the ethical conflict involved in asserting a position which would seriouslyendanger the child, especially by disclosure of privileged information, can be resolvedthrough the lawyer's counseling function, ifthe lawyer has taken the time to establish rapportwith the child and gain that child's trust While the lawyer should be careful not to applyundue pressure to a child, the lawyer's advice and guidance can often persuade the child tochange a dangerous or imprudentposition or at least identify alternative choices in case thecourt denies the child's first choice.
If the child cannot be persuaded, the lawyer has a duty to safeguard the child's interestsby requesting appointment of a Best Interests Attorney. As a practical matter, this may notadequately protect the child if the danger to the child was revealed only in a confidentialdisclosure to the lawyer, becausethe Best Interests Attorneymay never learn ofthe discloseddanger.
Model Rule 1.14 (2002) provides that "when the lawyer reasonably believes that theclient has diminished capacity, is at risk of substantial physical, financial or other harmunless action is taken and cannot adequately act in the chent's own interest, the lawyermaytake reasonably necessary protective action ... the lawyer is impliedly authorizedunder Rule1.6(a) to reveal information about the client, but only to the extent reasonably necessary toprotect the chent's interests."
If there is a substantial danger of serious injury or death, the lawyer must take theminimum steps which would be necessary to ensure the child's safety, respecting andfollowing the child's direction to the greatest extent possible consistent with the child'ssafety and ethical rules. States that do not abrogate the lawyer-client privilege orconfidentiahty, or mandate reporting in cases of child abuse, may permit reportsnotwithstanding privilege.
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TAB 15F - 13
4. The Child's Attorney should discuss with the child whether to ask the judge tomeet with the child, and whether to call the child as a witness. The decisionshould include consideration of the child's needs and desires to do either of these,any potential repercussions of such a decisionor harm to the child from testifyingor being involved in case, the necessity of the child's direct testimony, theavailability of other evidence or hearsay exceptions which may substitute fordirect testimony by the child, and. the child's developmental abihty to providedirect testimony and withstand cross-examination. Ultimately, the Child'sAttorney is bound by the child's direction concerning testifying.
Commentary
Decisions about the child's testifying should be made individually, based on thecircumstances. If the child has a therapist, the attorney should consult the therapist about thedecision and for help in preparing the child. In the absence of compelling reasons, a childwho has a strong desire to testify should be called to do so.
D. Appeals
Where appeals on behalf of the child are permitted by state law, the Child's Attomeyshould consider and discuss with the child, as developmentally appropriate, thepossibility of an appeal. If the child, after consultation, wishes to appeal the order,and the appeal has merit, the Child's Attorney should appeal. If the Child's Attorneydetermines that an appeal would be frivolous or that he or she lacks the expertisenecessary to handle the appeal, he or she should notify the court and seek to bedischarged or replaced.
Commentary
The lawyer should explain not only any legal possibility of an appeal, but also theramifications of filing an appeal, including delaying conclusion of the case, and what willhappen pending a final decision.
E^ Obligations after Initial Disposition
The Child's Attorney should perform, or when discharged, seek to ensure, continuedrepresentation of the child at all further hearings, including at administrative or judicialactions that result in changes to the child's placement or services, so long as the courtmaintains its jurisdiction.
Commentary
Representing a child continually presents new tasks and challenges due to the passage oftime and the changing needs of the child. The bulk of the Child's Attorney's work often
14
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TAB 15F - 14
comes after the initial hearing. The Child's Attorney should stay in touch with the child,with the parties or their counsel, and any other caretakers, case workers, and serviceproviders throughout the term ofappointment to attempt to ensure that the child's needs aremet andthat thecase moves quickly to an appropriate resolution.
F. End ofRepresentation
The Child's Attomey should discuss the end of the legal representation with the child,what contacts, if any, the Child's Attorney and the child will continue to have, and howthechild can obtain assistance in the future, ifnecessary.
V. BEST INTERESTS ATTORNEYS
A. Ethics
BestInterests Attorneys are be bound by their states' ethics mles in all matters except asdictated by the absence of a traditional attorney-client relationship with the child and theparticular requirements of their appointed tasks. Even outside of an attomey-chentrelationship, all lawyers have certain ethical duties toward the court, parties in a case, thejustice system, and the public.
Commentary
Siblings with conflicting views do not pose a conflict of interest for a Best InterestsAttorney, because such a lawyer is not bound to advocate a chent's objective. A BestInterests Attomey in such a case should report the relevant views of all the children inaccordance with Standard V-F-3, and advocate the children's best interests in accordancewith Standard V-F-l.
B. Confidentiahty
A child's communications with the Best Interests Attorney are subject to state ethics ruleson lawyer-client confidentiahty, except that the lawyer may also use the child's confidencesfor the purposes ofthe representation without disclosing them.
Commentary
ABA Model Rule 1.6(a) bars any release of information "except for disclosures that areimpliedly authorized in order to carry out the representation." Under DR 4-101(C)(2), alawyer may reveal confidences when "required by law or court order". As forcommunications that are hot subject to disclosure under these or other applicable ethics rules,a Best Interests Attomey may use them to further the child's best interests, without disclosingthem. The distinction between use and disclosure means, for example, that if a child tells thelawyer that a parent takes drugs; the lawyer may seek and present other evidence of the draguse, but may not reveal that the initial information came from the child. For more discussionofexceptions to confidentiahty, see the Commentary to Standard IV-A.
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TAB 15F - 15
C. Limited Appointments
If the court appoints the Best Interests Attorney to handle only a specific issue, the BestInterests Attorney's tasks may be reduced as the court may direct.
D. Explaining Role to the Child
In a developmentally appropriate manner, the Best Interests Attorney should explain tothe child that the Best Interests Attorney will (1) investigate and advocate the child's bestinterests, (2) will investigate the child's views relating to the case and will report them to thecourt unless the child requests that they not be reported, and (3) will use information from thechild for those purposes, but (4) will not necessarily advocate what the child wants as alawyer for a client would.
E. Investigations
The Best Interests Attorney should conduct thorough, continuing, and independentinvestigations, including:
1. Reviewing any court files of the child, and of siblings who are minors or are stillin the home, potentially relevant court files of parties and other householdmembers, and case-related records of any social service agency and other service ^^ \providers; J J
2. Reviewing child's social services records, ifany,mental health records (except asotherwise provided in Standard VT-A-4), drug and alcohol-related records,medical records, law enforcement records, school records, and other recordsrelevant to the case;
3. Contacting lawyers for the parties, and nonlawyer representatives or court-appointed special advocates (CASAs);
4. Contacting and meeting with the parties, with permission oftheir lawyers;
5. Interviewing individuals significantly involved with the child, who may in thelawyer's discretion include, if appropriate, case workers, caretakers, neighbors,relatives, school personnel, coaches, clergy, mental health professionals,physicians, law enforcement officers, and other potential witnesses;
6. Reviewing the relevant evidence personally, rather than relying on other parties•or counsel's descriptions and characterizations of it
7. Staying apprised of other court proceedings affecting the child, the parties andother household members.
Commentary ^^
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TAB 15F - 16
t Relevant files to review include those concerning child protective servicesdevelopmental disabilities, juvenile delinquency, mental health, and educational agencies'These records can provide amore complete context for the current problems ofthe child andfamily. Information in the files may suggest additional professionals and lay witnesses whoshould be contacted.
Though courts should order automatic access to records, the lawyer may still need to usesubpoenas or other discovery or motion procedures to obtain the relevant records, especiallythose which pertain to the parties.
Meetings with the children and all parties are among the most important elements of a•v competent investigation. However, there may bea few cases where aparty's lawyer will not
allow the Best-Interests Attorney to communicate with the party. Model Rule 4.2 prohibitssuch contact without consent of the party's lawyer. In some such cases, the Best-InterestsAttorney may be able to obtain permission for a meeting with the party's lawyer present.When the party has no lawyer, Model Rule 4.3 allows contact but requires reasonable effortsto correct any apparent misunderstanding ofthe Best-Interests Attorney's role.
The parties' lawyers may have information not included in any of the available records.They can provideinformation on their clients' perspectives.
Volunteer CASAs can often provide a great deal of information. The CASA is typically^^ charged with performing an independent factual investigation, getting to know the child, and^^ reporting on the child's best interests. Where there appears to be role conflict or confusion
over the involvement of both a lawyer and a CASA in the same case, there should be joint'efforts to clarify and define the responsibihties ofboth.
F. Advocating the Child's Best Interests
1. Any assessment of, or argument on, the child's "best interests should be based onobjectivecriteria asset forth in the law related to the purposes ofthe proceedings.
2. Best Interests Attorneys should bring to the attentionof the court any facts which,when considered in context, seriously call into question the advisability of anyagreed settlement.
3. At hearings on custody or parenting time, Best Interests Attorneys should presentthe child's expressed desires (if any) to the court, except for those that the childexpressly does not want presented.
Commentary
Determining a child's best interests is a matter of gathering and weighing evidence,reaching factual conclusions and then applying legal standards to them. Factors indetermining a child's interests will generally be stated in a state's statutes and case law, andBest Interests Attorneys must be familiar with them and how courts apply them. A child's
•desires are usually one ofmany factors in deciding custodyandparenting time cases, and theweight given them varies with age and circumstances.
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TAB 15F - 17
A Best Interests Attorney is functioning in a nontraditional role by determining theposition to be advocated independently ofthe chent The Best Interests Attorney should basethis determination, however, on objective criteria concerning the child's needs and interests,and not merely on the lawyer's personal values, philosophies, and experiences. A best-interests case should be based on the state's governing statutes and case law, or a good faithargument for modification of case law. The lawyer should not use any other theory, doctrine,model, technique, ideology, or personal rule of thumb without explicitly arguing for it interms of governing law on the best interests of the child. The trier of fact needs to understandany such theory in order to make an informed decisionin the case.
The lawyer must consider the child's individual needs. The child's various needs andinterests may be in conflict and must be weighed against each other. The child'sdevelopmental level, including his or her sense of time, is relevant to an assessment ofneeds.The lawyer may seek the advice and consultation of experts and other knowledgeable peoplein determining and weighing such needs and interests.
As a general rule Best Interests Attorneys should encourage, not undermine, settlements.However, in exceptional cases where the Best Interests Attorney reasonably believes that thesettlement would endanger the child and that the court would not approve the settlement wereit aware of certain facts, the Best Interests Attorney should bring those facts to the court'sattention. This should not be done by ex parte communication. The Best Interests Attorneyshould ordinarily discuss her or his concerns with the parties and counsel in an attempt tochange thesettlement, before involving thejudge. '*%
G. Appeals
Where appeals on behalf of the child are permitted by state law, the Best InterestsAttorney should appeal when he or she believes that (1) the trial court's decision issignificantly detrimental to the child's welfare, (2) an appeal could be successful consideringthe law, the standard of review, and the evidencethat can be presented to the appellate court,and (3) the probability and degree of benefit to the child outweighs the probability anddegree of detriment to the child from extending the litigation and expense that the parties willundergo.
VI. COURTS
A. Appointment ofLawyers
A court should appoint a lawyer as a Child's Attorney or Best Interests Attorney as soonas practicable if such an appointment is necessary in order for the court to decide the case.
1. Mandatory Appointment
A court should appoint a lawyer whenever such an appointment is mandated bystate law. A court should also appoint a lawyer in accordance with the A.B A.Standards ofPractice for Representing a Child in Abuse and Neglect Cases (1996) ^\
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TAB 15F - 18
when considering allegations of child abuse or neglect that warrant stateintervention.
Commentary
Whether in adivorce, custody or child protection case, issues such as abuse, neglect orother dangers to the child create an especially compelling need for lawyers to protect theinterests ofchildren. Lawyers in these cases must take appropriate steps to ensure that harmto the child is nriniinized while the custody case is being litigated. Appointing alawyer is nosubstitute for achild protective services investigation or other law enforcement investigation,where appropriate. The situation may call for referrals to or joinder of child protectionofficials, transfer ofthe case to the juvenile dependency court, or steps to coordinate the casewith arelated ongoing child protection proceeding, which may be in adifferent court. Anyquestion ofchild maltreatment should be acritical factor in the court's resolution ofcustodyand parenting time proceedings, and should be factually resolved before permanent custodyand parenting time are addressed. A serious forensic investigation to find out what happenedshould come before, and not bediluted by, amore general investigation into the best interestsof the child.
2. Discretionary Appointment
In deciding whether to appoint a lawyer, the court should consider the nature andadequacy of the evidence to be presented by the parties; other available methodsof obtaining information, including social service investigations, and evaluationsby mental health professionals; and available resources for payment Appointmentmay be most appropriate in cases involving the following factors, allegations orconcerns:
a. Consideration of extraordinary remedies such as supervisedvisitation, terminating or suspending parenting time, or awardingcustody or visitation to a non-parent
b. Relocation that could substantially reduce the child's time with aparent or sibling;
c. The child's concerns or views;d. Harm to the child from illegal or excessive drug or alcohol abuseby
a child or a party;e. Disputed paternity;f. Past or present child abduction or risk of future abduction;g. Past or present family violence;h. Past orpresent mentalhealth problems ofthe childor a party;i. Special physical, educational, or mental health needs of a child that
require investigation or advocacy;j. A high level ofacrimony;k. Inappropriate adult influenceormanipulation;1. Interferencewith custody or parenting time;m. A need for more evidence relevant to the best interests ofthe child;n. A need to minimize the harm to the child from the processes of
family separation and litigation; or
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TAB 15F - 19
Commentary
Specific issues that would best be addressed by a lawyer appointedto address only those issues, which the court should specify in itsappointment order.
In some cases the court's capacityto decide the case properlywill be jeopardized withouta more child-focused framing of the issues, or without the opportunity for providingadditional information concerning the child's best interests. Often, because of a lack ofeffective counsel for some or all parties, or insufficient investigation, courts are deprived ofimportant information, to the detriment of the children. A lawyer building and arguing thechild's case, or a case for the child's best interests, places additional perspectives, concerns,and relevant, material information before the court so it can make a more informed decision.
An important reason to appoint a lawyer is to ensure that the court is made aware of anyviews the child wishes to express concerning various aspects of the case, and that those viewswill be given the proper weight that substantive law attaches to them. This must be done inthe least harmful manner — that which is least likely to make the child think that he or she isdeciding the case and passing judgment on the parents. Courts and lawyers should strive toimplement procedures that give children opportunities to be meaningfully heard when theyhave something they want to say, rather than simply giving the parents another vehicle withwhich to make their case.
The purpose of child representation is not only to advocate a particular outcome, but alsoto protect children from collateral damage from litigation. While the case is pending,conditions that deny the children a minimum level of security and stability may need to beremedied or prevented.
Appointment of a lawyer is a tool to protect the child and provide information to helpassist courts in deciding a case in accordance with the child's best interests. A decision not toappoint should not be regarded as actionably denying a child's procedural or substantiverights under these Standards, except as provided by state law. Likewise, these Standards arenot intended to diminish state laws or practices whichafford children standing or the right tomore broad representation than provided by these Standards. Similarly, these Standards donot limit any right or opportunity ofa child to engage a lawyer or to initiate an action, wheresuch actions or rights are recognized by law or practice.
3. Appointment Orders
Courts should make written appointment orders on standardized forms, in plainlanguage understandable to non-lawyers, and send copies to the parties as well asto counsel. Orders should specify the lawyer's role as either Child's Attorney orBest Interests Attorney, and the reasons for and duration of the appointment.
Commentary
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TAB 15F - 20
Appointment orders should articulate as precisely as possible the reasons for theappointment and the tasks to be performed. Clarity is needed to inform all parties of the roleand authority of the lawyer; to help the court make an informed decision and exerciseeffective oversight; and to facilitate understanding, acceptance and compliance. AModelAppointment Order is at the end of these Standards.
When the lawyer is appointed for a narrow, specific purpose with reduced duties underStandard VI-A-2(o), the lawyer may need to ask the court to clarify or change the role ortasks as needed to serve the child's interests at any time during the course ofthe case. Thisshould be done with notice to the parties, who should also receive copies ofany new order.
4. Information Access Orders
An accompanying, separate order should authorize the lawyer's reasonable accessto the child, and to all otherwise privileged or confidential information about thechild, without the necessity of any further order or release, including, but notlimited to, social services, drug and alcohol treatment, medical, evaluation, lawenforcement, school, probate and court records, records of trusts andaccounts ofwhich the child is abeneficiary, and other records relevant to the case; except thathealth and mental health records that would otherwise be privileged orconfidential under state or federal laws should be released to the lawyer only inaccordance with those laws.
Commentary
A model Order for Access to Confidential Information appears at the end of theseStandards. It is separate from the appointment order so that the facts or allegations cited asreasons for the appointment are not revealed to everyone from whom information is soughtUse of the term "privileged" in this Standard does not include the attorney-client privilege,which is not affected by it.
5. Independence
The court must assure that the lawyer is independent of the court, court services,the parties, and the state.
6. Duration ofAppointments
Appointments should last, and require active representation, as long as the issuesforwhichthe lawyerwasappointed arepending.
Commentary
The Child's Attorney or BestInterests Attorney may be the only source of continuity inthe court system for the family, providing a stable point of contact for the child and
21
TAB 15F - 21
institutional memory for the court and agencies. Courts should maintain continuity of '^representation whenever possible, re-appointing the lawyer when one is needed again, unlessinconsistent with the child's needs. The lawyer should ordinarily accept reappointment Ifreplaced, thelawyer should inform and cooperate with the successor.
7. Whom to Appoint
Courts should appoint only lawyers who have agreed to serve in child custodycases in the assigned role, and have been trained as provided in Standard VI-B orare qualified by appropriate experience in custody cases.
Commentary
Courts should appoint from the ranks of qualified lawyers. Appointments should not bemade without regard to prior training or practice. Competence requires relevant training andexperience. Lawyers should be allowed to specify if they are only willing to serve as Child'sAttorney, or only as Best Interests Attorney.
8. Privately-Retained Attorneys
An attorney privately retained by or for a child, whether paid or not, (a) is subjectto these Standards, (b) should have all the rights and responsibihties of a lawyerappointed by a court pursuant to these Standards, (c) should be expressly retainedas either a Child's Attorney or a Best Interests Attorney, and (d) should vigilantly ^\guard the client-lawyer relationship from interference as provided in Model Rule. '1.8(f).
B. Training
Training for lawyers representing children in custody cases should coven
1. Relevant state and federal laws, agency regulations, court decisions and courtrules;
2. The legal standards applicable in each kind of case in which the lawyer may beappointed, including child custody and visitation law;
3. Applicable representation guidelines and standards;
4. The court process and key personnel in child-related litigation, including custodyevaluations and mediation;
5. Children's development, needs and abilities at different ages;
6. Communicating with children;
7. Preparing and presenting a child's viewpoints, including child testimony andalternatives to direct testimony;
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TAB 15F - 22
8. Recognizing, evaluating and understanding evidence of child abuse and neglect
9. Family dynamics and dysfunction, domestic violence and substance abuse;
10. The multidisciplinary input required in child-related cases, including informationonlocal experts who can provide evaluation, consultation and testimony;
11. Available services for child welfare, family preservation, medical, mental health,educational, and special needs, including placement, evaluation/diagnostic, andtreatment services, and provisions and constraints related to agency payment forservices;
12. Basic information about state and federal laws and treaties on child custodyjurisdiction, enforcement, and child abduction.
Commentary
Courts, bar associations, and other organizations should sponsor, fund and participate intraining. They should also offer advanced and new-developments training, and providementors for lawyers who are new to child representation. Training in custody law isespecially important because not everyone seeking to represent children will have a family
-^ law background. Lawyers must be trained to distinguish between the differentkinds of cases\ in which they may be appointed, and the different legal standards to be applied.
Training should address the impact of spousal or domestic partner violence on custodyand parenting time, and any statutes or case law regarding how allegations or findings ofdomestic violence should affect custody or parenting time determinations. Training shouldalso sensitize lawyers to the dangers that domestic violence victims and their children face inattempting to flee abusive situations, and how that may affect custody awards to victims.
C. Compensation
Lawyers for children are entitled to and should receive adequate and predictablecompensation that is based on legal standards generally used for determining thereasonableness ofprivately-retained lawyers' hourly fees in family law cases.
1. Compensation Aspects ofAppointment Orders
The court should make clear to all parties, orally and in writing, how fees will bedetermined, including the hourly rate or other computation system used, and thefact that both in-court and out-of-court work will be paid for; and how and bywhom the fees and expenses are to be paid, in what shares. If the parties are topay for the lawyer's services, then at the time of appointment the court shouldorder the parties to deposit specific amounts ofmoney for fees and costs.
(f^ 2. Sources ofPayment
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TAB 15F - 23
Courts should look to the following sources, in the following order, to pay for the Jlawyer's services: (a) The incomes and assets of the parties; (b) Targeted filingfees assessed against litigants in similar cases, and reserved in a fund for childrepresentation; (c) Government funding; (d). Voluntary pro bono service. Statesand localities should provide sufficient funding to reimburse private attorneys, tocontract with lawyers or firms specializing in children's law, and to support probono and legal aid programs. Courts should eliminate involuntary "pro bono"appointments, and should not expect all or most representation to be pro bono.
3. Timeliness ofClaims and Payment
Lawyers should regularly bill for their time and receive adequate and timelycompensation. Periodically and after certain events, such as hearings or orders,they should be allowed to request payment States should set a maximum numberof days for any required court review of these bills, and for any governmentalpayment process to be completed.
4. Costs
Attorneys should have reasonable and necessary access to, or reimbursement for,experts, investigative services, paralegals, research, and other services, such ascopying medical records, long distance phone calls, service of process, andtranscripts ofhearings. '"^
5. Enforcement
Courts should vigorously enforce orders for payment by all available means.
Commentary
These Standards call for paying lawyers in accordance with prevailing legal standards ofreasonableness for lawyers' fees in general. Currently, state-set uniform rates tend to belower than what competent, experienced lawyers should be paid, creating an impression thatthis is second-class work. In some places it has become customary for the work of childrepresentation to be minimal and pro forma, or for it to be performed by lawyers whoseservices are not in much demand.
Lawyers and parties need to understand how the lawyer will be paid. The requirement tostate the lawyer's hourly rate in the appointment order will help make litigants aware of thecosts being incurred. It is not meant to set a uniform rate, nor to pre-empt a court'sdetermination of the overall reasonableness of fees. The court should keep information oneligible lawyers' hourly rates and pro bono availability on file,.or ascertain it when makingthe appointment order. Judges should not arbitrarily reduce properly requestedcompensation, except in accordance with legal standards ofreasonableness.
Many children go unrepresented because of a lack of resources. A three-fold solution is '*%appropriate: hold more parents responsible for the costs of representation, increase public
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TAB 15F - 24
funding, and increase the number of qualified pro bono and legal service attorneys. All" ofthese steps will increase the professionalism ofchildren's lawyers generally.
As much as possible, those whose decisions impose .costs on others and on society shouldbear such costs at the time that they make the decisions, so that the decisions will be morefully informed and socially conscious. Thus direct payment oflawyer's fees by litigants isbest, where possible. Nonetheless, states and localities ultimately have the obligation toprotect children in their courtsystems whoseneeds cannototherwise bemet
Courts are encouraged to seek high-quality child representation through contracting withspecial children's law offices, law firms, and other programs. However, the motive shouldnot be a lower level of compensation. Courts should assure that payment is commensuratewith the fees paid to equivalently experienced individual lawyers who have similarqualifications and responsibilities.
Courts and bar associations should establish orcooperate with voluntary pro bono and/orlegal services programs to adequately train and support pro bono and legal services lawyersin representing children in custody cases.
In jurisdictions where more than one court system deals with child custody, theavailability, continuity and payment of lawyers should not vary depending onwhich court isused, nor on the type ofappointment.
D. Caseloads
Courts should control the size of court-appointed caseloads, so that lawyers do not haveso many cases that they are unable to meet these Standards. If caseloads of individuallawyers approach or exceed acceptable limits, courts should take one or more of thefollowing steps: (1) work with bar and children's advocacy groups toincrease the availabilityof lawyers; (2) make formal arrangements for child representation with law firms orprograms providing representation; (3) renegotiate existing court contracts for childrepresentation; (4) alert agency administrators that their lawyers have excessive caseloadsandorder them to establish procedures or a plan to solve theproblem; (5) alertstate judicial,executive, and legislative branch leaders that excessive caseloads jeopardize the ability oflawyers to competently represent children; and(6)seekadditional funding.
E. Physical accommodations
Courts should provide lawyers representing children with seating and work spacecomparable to that of other lawyers, sufficient to facilitate the work of in-courtrepresentation, and consistent with the dignity, importance, independence, and impartialitythat they ought to have.
F. Immunity
Courts should take steps to protect all lawyers representing children from frivolouslawsuits and harassment by adult litigants. Best Interests Attorneys should have qualified,quasi-judicial immunity for civil damages when performing actions consistent with their
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TAB 15F - 25
appointed roles, except for actions that are: (1) willfully wrongful; (2) done with consciousindifference or reckless disregard to the safety of another; (3) done in bad faith or withmalice; or (4) grossly negligent. Only the child should have any right of action against aChild's Attorney or Best Interests Attorney.
Commentary
Lawyers and Guardians Ad Litem for children are too often sued by custody litigants.Courts, legislatures, bar organizations and insurers should help protect all children's lawyersfrom frivolous lawsuits. Immunity should be extended to protect lawyers' abihty to fullyinvestigate and advocate, without harassment or mtimidation. In determining immunity, theproper inquiry is into the duties at issue and not the title of the appointment. Othermechanisms still exist to prevent or address lawyer misconduct: (1) attorneys are bound bytheir state bars' rales of professional conduct; (2) the court oversees their conduct and canremove or admonish them for obvious misconduct; (3) the court is the ultimate custodydecision-maker and should not give deference to a best-interests argument based on aninadequate or biased investigation.
26
j^%.
TAB 15F - 26
APPENDIX A
IN THE COURT OF
Petitioner,
v. Case No.
Respondent
In Re: , D.O.B.
CHILD REPRESENTATION APPOINTMENT ORDER
I. REASONS FOR APPOINTMENT
This case came on this , 20 , and it appearing to the Court thatappointing a Child's Attomey or Best Interests Attorney is necessary to help the Courtdecidethe case properly,because of the following factors or allegations:
A. Mandatory appointment grounds:
(_) The Court is considering child abuse or neglect allegations that warrant state intervention.(_) Appointment is mandated by state law.
B. Discretionary grounds warranting appointment:
(_) Consideration ofextraordinary remedies suchas supervised visitation, terrninating orsuspendingvisitation with a parent, or awarding custody orvisitation to a non-parent(_) Relocationthat could substantially reduceofthe child's time with a parentor sibling(_) The child's concerns or views(_) Harm to the child from illegal or excessive drug or alcohol abuse by a child or.a party(_) Disputed paternity(_) Past or present child abduction, or risk of future abduction(_) Past or present family violence(_) Past or presentmental health problems ofthe child or a party(_) Specialphysical, educational, ormental health needs requiring investigation or advocacy(__) A high level ofacrimony(J Inappropriate adult influence or manipulation(_) Interference with custody or parenting time(_) A need for more evidence relevant to the best interests of the child(_) A need to minimize the harm to the child from family separation and litigation(_) Specific issue(s) to be addressed:
27
TAB 15F - 27
n. NATURE OF APPOINTMENT
, a lawyer who has been trained inchild representation in custody cases and is willing to serve in such cases in this Court, ishereby appointed as (_) Child's Attorney (_) Best Interests Attomey, for the (J the child orchildren named above (J the children) ; ,to represent the children) in accordance with the Standards of Practice for LawyersRepresenting Children in Custody Cases, a copy of which (__) is attached (J has beenfurnished to the appointee. A Child's Attomey represents the child in a normal attorney-client relationship. A Best Interests Attorney investigates and advocates the child's bestinterests as a lawyer. Neither kind of lawyer testifies or submits a report. Both have duties ofconfidentiality as lawyers, but the Best Interests Attorney mayuse information fromthe childfor the purposes of the representation.
HI. FEES AND COSTS
The hourly rate of the lawyer appointed is $ , for both in-court and out-of-courtwork.
(J The parties shall be responsible for paying the fees and costs. The parties shall deposit$ with (_) the Court, (_) the appointed lawyer. shall deposit$ , and shall deposit $ . The parties' individual sharesof the responsibility for the fees and costs as between the parties (J are to be determined **%.later (J areas follows: to pay %; to pay %. '
(_) The State shallbe responsible for paying the fees and costs.
(J The lawyer has agreed to serve without payment. However, the lawyer's expenses will bereimbursed by (__) the parties (_) the state.
IV. ACCESS TO CONFIDENTIAL INFORMATION
The lawyer appointed shall have access to confidential information about the child asprovided in the Standards of Practice for Lawyers Representing Children in Custody Casesand in an Order for Access to Confidential Information that will be signed at the same timeas this Order.
THE CLERK IS HEREBY ORDERED TO MAIL COPIES OF THIS ORDER TO ALLPARTIES AND COUNSEL.
DATE: , 20JUDGE
28
TAB 15F - 28
APPENDIX B
IN THE COURT OF
Petitioner,
Case No.
Respondent
In Re: ; , D.O.B.
ORDER FOR ACCESS TO CONFIDENTIAL INFORMATIONhas been appointed as (_) Best
Interests Attomey (J Child's Attorney for (J the child or children namedabove (_) the child , and so shall have immediateaccess to such child or children, and to all otherwise privileged orconfidential information regarding such child or children, without thenecessity of any further order or release. Such information includes but isnot limited to social services, drug and alcohol treatment, medical,,evaluation, law enforcement, school, probate and court records, records oftrusts and accounts of which the child is a beneficiary, and other recordsrelevantto the case, including court records ofparties to this case or theirhousehold members.
Mental health records that are privileged or confidential understate or federal laws shall be released to the Child's Attorney or BestInterests Attomey only in accordance with such laws.
THE CLERK IS HEREBY ORDERED TO MAIL COPIES OF THISORDER TO ALL PARTIES AND COUNSEL.
DATE: ,20
JUDGE
29
TAB 15F - 29
O 7°o n
*< 2.2. =>
<* 3> F
VW. 73, Summer 1995 Representing Children
Representing Children: Standards forAttorneys and Guardians ad Litem inCustody or Visitation Proceedings(With Commentary)
>
S. Preamblea
3
T"^ Standards set forth guidelines for the appointment^ and role of counsel and guardians ad litem representing children1B ln custody and visitation proceedings.* TTie Standards address1' when lawyers and guardians ad litem should be appointed and§ . their obligations and responsibilities.£ Tn^ Standards apply to three distinct categories: counsel£• for children who are empowered to direct the role of counselI (counsel representing "unimpaired" clients); counsel for children3 lacking the capacity to direct the role of counsel (counsel repre
senting "impaired" clients); and guardians ad litem (regardless ofthe child's capacity and regardless ofwhether the guardian is anattorney).
Standards 1.1 to 1.3 address the appointments of counseland guardians ad litem for children. They address when such appointments should be made, the training persons eligible for appointments should have, and the first steps both courts makingthe appointments and the persons who are appointed shouldtake. Standards 1.1 to 1.3 apply to all appointments for childrenincluding counsel '.and guardian ad litem appointments. Stan-
1 In these Standards, "counsel" refers to an attorney acting as alawyerfor achild. A guardian ad litem may or may not be an attorney.
2 There are many other proceedings in which representatives are routinely assigned to represent children, including abuse and neglect proceedingstermination ofparental rights proceedings, and juvenile delinquency proceedings. These Standards do not reach any of those types ofcases. These Standards only apply to private custody or visitation proceedings, including thosebetween parents and non-parents in which the state is not aparty and the standard by which the case is to be decided is the best interests ofthe child Moreover, the Standards only apply to the visitation and custody issues in thosecases. Other issues that commonly arise in those cases, such as child supportand other financial matters, are beyond the scope of these Standards.
2 Journal of the American Academy of Matrimonial Lawyers
dards 21 to 2.13 address the behavior of attorneys assigned torepresent children as counsel. Standards 2.3 to 2.6 and Standards27to 213 differentiate the role of counsel depending on the age,maturity, and intelligence of the child. Standards 3.1 to 3.8 address the role of guardians ad litem. Those Standards apply to allguardian ad litem appointments, whether or not the guardian isan attorney or acourt combines the role of guardian ad litem andcounsel, the attorney should represent the client in accordancewith Standards 2.1 to 2.13.
These Standards are not intended to contravene state law.Rather they are designed to fill gaps where they exist. In addition to the extent the Standards actually conflict with current lawin a'particular jurisdiction, it is hoped the law will be reevaluatedin light of these Standards. The Standards are most likely to beparticularly useful, however, in those jurisdictions that currentlyprovide little guidance either to judges or lawyers as to when andwhy children should be represented.
1 Standards Relating to the Appointment of Counsel andGuardians ad Litem for Children in Custody or VisitationProceedings
The following standards are applicable to all appointmentsof representatives for children, including appointments of counsel and guardians ad litem.
11 Courts should not routinely assign counsel or guardians adlitem for children in custody or visitation proceedings. Appointment of counsel or guardians should be preserved forthose cases in which both parties request the appointment orthe court finds after a hearing that appointment is necessaryin light of the particular circumstances ofthe case.
Comment
These Standards reject the general call for children to berepresented in all matrimonial cases. Representatives for children, whether counsel or guardians ad litem, may be appropriatein particular cases. Other than in those cases, however, childrenare not necessarily better served by being given arepresentative,and the other parties to the action may be adversely affected bythe appointment. In the absence of a particular reason for as-
J
Vol. 13, Summer 1995 Representing Children
signing representation for a child, the representative frequentlywill merely duplicate the efforts of counsel already appearing inthe case.
Matrimonial and related custody proceedings should continue to be viewed as private disputes brought to the court forresolution because the parties are unable to resolve the disputeby other means. The mere fact that parents have decided to resolve their dispute in a contested manner is insufficient reason torequire a separate legal representative for children in most cases.
.Furthermore, the routine addition of representatives forchildren may delay the proceedings and tax the resources both ofthe parties and the courts. Adding a lawyer orguardian ad litemcannot only increase the fees; overall costs may become geometrically greater if the child's representative wishes to retain paidexperts whose contributions may, in turn, encourage the partiesto retain additional experts. These greater expenses may ultimately be detrimental to the child's interests, since less moneywill be available after the divorce (and during its pendency) tospend on the child. If the child's representative is paid by thecounty, taxpayers will besubsidizing private parties engaged in aprivate legal dispute; in the absence ofallegations that the childhas suffered serious risk of harm that rises to the level of abuseor neglect, this would appear to be a misuse of public money. Ifrepresentatives for children are unpaid, there will be an insufficient number of qualified professionals routinely available torepresent children.3
A review of the laws in the different jurisdictions in theUnited States reveals that very few states provide meaningfulguidance about any aspect of the use ofrepresentatives for children in custody or visitation cases. Relatively few states providecourts with any meaningful guidelines regarding when to makeappointments. In the vast majority of jurisdictions, the relevantstatute or caselaw merely recognizes the court's discretion tomake an appointment when, for example, "the court determines
3 See America's Children at Risk: A National Aoenda forLegal Action 3-8 (Report of the American Bar Association Working Groupon the Unmet Needs of Children and Their Families 1993).
4Jo
urna
lJ?t
heAm
erica
nAc
adem
yof
Matr
imon
ialLa
wyer
s
that
repr
esen
tatio
nof
the
inte
rest
wou
ldot
herw
isebe
inad
equa
te.'"
'U
nder
this
Stan
dard
,rep
rese
ntat
ives
forc
hild
ren
shou
ldbe
assig
ned
when
both
parti
eswa
ntth
ech
ildto
bere
pres
ented
orw
hen
thec
ourt
finds
that
ther
esh
ould
bean
appo
intm
ent.
Whe
nbo
thpa
rties
want
the
child
tobe
repr
esen
ted,
ther
ear
efew
rea
sons
todi
sallo
wth
eap
poin
tmen
t.Th
eim
pact
onth
epa
rent
s'pri
vacy
and
pock
etboo
kare
not
theex
clusiv
eco
stsas
socia
tedwi
thth
ene
edles
sco
mpl
icatio
nof
legal
disp
ute
reso
lutio
n(ju
dicia
lre
sour
ces,
ason
epr
omin
ente
xam
ple,
can
bese
vere
lyta
xed
whe
nca
ses
are
not
reso
ived
expe
ditio
usly
).N
ever
thel
ess,
whe
nbo
thpa
rties
are
willi
ngto
abso
rbth
ese
costs
,the
appo
intm
ents
shou
ldgo
forw
ard.
Ifei
ther
one
orbo
thpa
rties
dono
twan
tthe
child
tobe
rep
rese
nted
,th
isSt
anda
rdre
quire
sth
atth
eco
urt
first
cond
uct
ahe
aring
and
mak
esp
ecifi
cfin
dings
that
are
pres
entat
ive
shou
ldbe
assig
ned
befo
rean
appo
intm
ent
may
beor
dere
d.Su
cha
heati
ngma
ybe
held
upon
motio
nof
eithe
rpart
y,on
appli
catio
nof
Ihe
child
ora
repr
esen
tativ
epu
rpor
ting
tore
pres
entt
hech
ild,
oron
the
cour
t'sow
nm
otio
n.U
nder
this
Stan
dard
,bef
ore
per
mitt
ing
are
pres
entat
ive
toap
pear
ona
child
'sbe
half
the
cour
tsh
ould
find
that
sepa
rate
repr
esen
tatio
nis
appr
opria
te.
This
Stan
dard
does
note
xpre
ssly
setf
orth
fact
ors
tobe
con
sider
edat
the
hear
ing.
Som
esta
tes
have
esta
blish
edus
eful
crite
riapr
ovidi
nggu
idanc
ewh
ereco
urts
have
thedis
cretio
nto
mak
ean
appo
intm
ent.
Arka
nsas
,for
exam
ple,a
utho
rizes
anap
poin
tm
ent"
whe
reth
eev
iden
ceis
eith
erno
nexi
sten
tor
inad
equa
teto
«A
la.C
ode
§26
-2A
-52
(199
2).
Som
esta
tes
man
date
the
appo
intm
ent
ofco
unse
lwh
ence
rtain
crite
riaar
em
et.
Flor
ida.
Loui
siana
,M
inne
sota
,M
isso
uri.
Sout
hD
akot
a,an
dTe
nnes
see,
forex
ampl
e,re
quire
the
appo
intm
ento
fagu
ardia
nad
litem
oran
atto
rney
ifall
egati
onso
fabu
seor
negle
ctar
einv
olve
d.Se
eFl
a.St
at.
Ann.
§61.4
01(W
est
1992
);L
a.R
ev.S
tat.
Ann.
§345
(B)
(West
Supp
l199
5);M
inn.S
tat.
§518
.165(
1990
);M
o.An
n.St
at.§
452.4
23(1)
(Ver
non
Supp
.19
93);
S.D.C
odifi
edLa
wsAn
n.§2
5-4-
45.4
(1992
&Su
pp.
1993
);Te
nn.R
.Juv
.P.3
7(c).
Oreg
onre
quire
sthe
appo
intm
ento
fcou
nsel
"ifre
ques
tedlo
doso
byon
eor
mor
eof
the
child
ren.
"O
r.Re
v.St
at.
§10
7.425
(3)(
1993
).Ve
rmon
tre
quire
sth
eap
poin
tmen
tofc
ouns
elw
hene
ver
ach
ildis
calle
das
aw
itnes
sin
acu
stody
,visi
tatio
nor
child
supp
ort
proc
eedi
ng.
VT.
Stat
.A
nn.l
it.15
.§
594(
b)(1
989
&Su
pp.
1991
).Fi
nally
.Wisc
onsin
requ
ires
coun
sel
forch
ildre
nin
allco
ntes
tedcu
stody
proc
eedin
gs.
Wis.
Stat
.§
767.
045(
1)(1
989-
1990
).
Vol
.13,
Su
mm
er19
95R
epre
sent
ing
Chi
ldre
n
deter
min
eth
eco
mpa
rativ
efit
ness
ofth
epa
rent
san
dto
dete
rm
ine
whe
reth
ebe
stin
tere
stsof
the
child
lie,o
rin
case
sw
here
itis
appa
rent
thatt
hedis
pute
isce
ntered
onthe
desir
esof
thepa
ren
tsra
ther
than
the
best
inte
rests
ofth
ech
ild."*
Loui
siana
has
deve
loped
aset
ofgu
idelin
estha
tthis
Comm
entar
yrec
omme
nds
thatc
ourts
cons
iderw
hen
decid
ingwh
ether
toap
point
arep
rese
ntat
ive.
Loui
siana
lawin
struc
tsju
dges
toco
nsid
erth
efo
llow
ingfiv
eiss
ues
when
exerc
ising
discre
tion
toap
poin
tcou
nsel
for
ch
ild
ren
:
(1)W
hethe
rthe
proc
eedin
gis
exce
ption
ally
inten
seor
pro
trac
ted
;
(2)W
hethe
rthe
attorn
eyco
uldpro
vide
theco
urtwi
thsig
nifi
cant
info
rmati
onno
tot
herw
iseav
ailab
leor
likely
tobe
pres
ente
d;.
(3)W
hethe
ritis
possi
blene
ither
paren
tisc
apab
leof
provid
ingan
adeq
uate
and
stabl
een
viro
nmen
tfor
the
child
;(4
)W
heth
erthe
inter
ests
ofthe
child
and
those
ofeit
herp
aren
tco
nfli
ct;
(5)
Any
othe
rfac
torre
levan
tin
deter
min
ing
best
inter
ests.
6Fi
nally
,in
thos
eca
ses
inwh
ichap
poin
tmen
tof
coun
sel
orgu
ardian
adlite
mfo
ra
child
isap
prop
riate,
such
appo
intm
ent
shou
ldtak
eplac
eatt
heea
rlies
tpos
sible
stage
ofthe
proc
eedin
g.
1.2To
beeli
gible
for
appo
intm
enta
scou
nsel
orgu
ardia
nad
litem
forac
hildi
nacu
stody
orvis
itatio
npro
ceed
ing,a
perso
nsh
ould
betra
ined
inre
pres
enta
tion
ofch
ildre
n.
Co
mm
en
t
Tobe
effec
tive,
child
ren's
repres
entat
ives,
wheth
erthe
yare
lawye
rsap
poin
tedas
coun
selo
rgua
rdian
sad
litem
orno
n-law
yers
appo
inted
asgu
ardian
sad
litem,
shou
ldbe
spec
ifica
llytra
ined
asch
ildre
n'sad
voca
tes.
Ata
mini
mum
,rep
rese
ntati
ves
mus
tkno
who
wto
com
mun
icat
eef
fect
ivel
yw
ithch
ildre
n.N
on-
lawye
rsap
point
edas
guard
ians
shou
ldrec
eive
traini
ngin
thelaw
sand
proc
edur
esin
custo
dyan
dvis
itatio
npr
ocee
dings
.Th
isSt
anda
rdan
ticip
ates
that
bara
ssoc
iatio
nsor
loca
lcou
rtpe
rson
neli
nea
chju
risdi
ctio
nwi
llde
velo
pco
urse
san
dm
ater
ials
desig
ned
tofam
iliariz
epers
onsw
howi
shto
beeli
gible
forass
ign-
5Ki
mmon
sv.
Kimm
ons,
613
S.W.2d
110.
113
(198
1)*
La.R
ev.S
tat.
Ann.
§345
(Wes
tSup
p.19
95).
«Jou
rnalof
,HeAf
rica*
Anton
yofM
amma
lLase
rs...
:„„
Thes
eco
urse
san
dma
teria
lsme
ntas
childr
en's«
P»
ttX
'20
11
anda
lterna
tivest
osho
uldinc
ludem
ethods
'V°^
"Dt,
offam
iUalb
reakup
onadv
ersaria
ldispu
te^"^
•^^"
part
ies
tode-
escala
tech
ildre
n,an
dtec
hniqu
esfor
helP>
ng">
J"ter
ials
incud
edan
conflic
t.Itw
ouldb
e«PP
WP«»
***S
^aliz
edtra
iningw
iUinte
r-disci
plinary
focus^
*^
ire,t0
protec
tpre
pare
repres
entat
ives,
asth
«et~
*"lit
i_at
iona
ndtof
acUi
tate
childre
nfrom
thehar
msa«
enda
n^1«g
aion^
^^
expe
ditiou
sres
olutio
nof
thedis
pute
inch
ild's
best
inte
rest
s.
achU
d,the
com
shou
ldsp
ecify
mw
sof,H
e^^
J^
^l^
the
represen
,a,iVe-s
&15
XZ
I*Z*
clario
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e.asks
«-pe
cted
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r.
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yspec.e
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J^S
^S
^chi
ldist
oappo
inted.
*^
™£
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&*
°<bot
h'"fW
ment
ofeit
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*B^d
ian,
^7a
nsta
tesreq
uiret
hatt
heap
point
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eagu
,^.,
attor
ney.'
agu
ardia
nad
litem
who
m•_
•61
3SW
2d11
0,11
3—
Tl^T
Ato
nsas
(B»«
''JJ
*,,
.MaiM
(Gerbe
r».Fe
-(19
811VH
onda
(Fla.
Stat.
Ann
8«-40
1<^i
,1'.
£m
(Me.
1981))
;Mas-
S?*
AM605
.607(
Me.19
90);C
yrv_Cy
r«2A
M7
^
1M11
VDela
ware
(Del.
Code
Ann.
m.13
,5TO
WI'»
»•AN
[),3
452?
i»1*
«(We
st^P
/'^fC
^Law
S*('
"»W
eslS
upp.
I'M));
Maryl
and(
MdCo
deAn
nRe
vs
^.Ka
oaTM
oNT.
Code
*~•«
£E$2
?CPa
.6r^
P.1915
.l(aV
.51
07.425
(3)(19
91&
Supp.
19'2»
-f^,12
5-4-
45.4
(1989
&Sup
p.19
93).
Loth
Dako.
.(S.D.
Codih
edLa
w^An
n.S
&19
90*«
**»*
Verm
ont(V
t.W^S
^198
6&Sup
p.199
3).
l0I,(
Wash
.Rev
.Cod
eAnn
.5̂j"
"/^
§40.4
.8(A)
(N&l
ue198
9&\
See.,S
New^"
^^^'
^.26
6(0)
(Michie
1988&
Supp.
Supp.
1992));
^%a/
s*Af
SD7E67
A045(1)
.(3)(1
989-19
90)).
1993
));W
iscon
sin(W
is.st
ai.
s
KM I
Vol
.13
,S
um
mer
19V
5K
epre
sen
iin
gx^
nu
urc
n
frien
dof
the
cour
t."10
Itis
even
rare
rw
hen
juris
dict
ions
spec
ifywh
atdu
ties
the
repr
esen
tativ
esh
ould
unde
rtake
.O
nly
abou
ta
doze
njur
isdict
ions
even
attem
ptto
prov
ideme
anin
gful
guid
ance
."It
ises
sent
ial,
how
ever
,th
atth
ere
pres
enta
tive's
role
becle
arto
ever
yone
befo
rehe
orsh
eun
derta
kes
any
signi
fican
tta
sks.
Thes
eSt
anda
rds
setf
orth
rule
sof
cond
uctf
orco
unse
land
guar
dians
adlit
emre
pres
entin
gch
ildre
n,en
umer
atin
gbo
thac
tions
that
repr
esen
tativ
esar
eex
pecte
dto
unde
rtake
and
thos
ethe
yar
epro
hibite
dfro
mun
derta
king.
Idea
lly,t
heba
rwill
adop
tth
ese
Stan
dard
sin
indi
vidu
alju
risdi
ctio
ns.
Unt
ilth
eyar
efo
rma
llyad
opted
,the
rewi
llco
ntinu
eto
beun
certa
inty
conc
ernin
gthe
purp
ose
and
role
ofth
eas
signm
ent.
Tomi
nimi
zethi
sunc
ertai
nty,t
hisCo
mmen
trec
omme
nds
that,
atthe
time
they
make
theap
point
ment,
cour
tssp
ecify
inwr
iting:
(a)the
purp
oses
ofthe
assig
nmen
t;(b
)the
role
ofthe
child
'sre
pres
entat
ive;(
c)the
parti
cular
tasks
expe
cted
tobe
perfo
rmed
bythe
repr
esen
tative
;(d
)the
time
frame
s,if
any,
withi
nwh
ichto
comp
lete
thetas
ks;(e)
thefee
arra
ngem
entf
orthe
repr
esen
tative
'sse
rvice
s,inc
luding
the
rate,
paym
ents
ched
ule,a
ndwh
ois
resp
onsib
lefor
pay
ing-
and
(f)wh
ether
theap
point
ment
ison
lyfor
trial-
level
mat
ters
orin
clud
esre
spon
sibili
ties
thro
ugh
any
appe
alth
atm
aybe
pros
ecut
ed.
Alth
ough
this
Stan
dard
does
not
requ
ireth
atth
eco
urt
sche
dule
afo
rmal
appe
aran
cewi
thall
parti
esto
disc
uss
the
role
ofthe
repr
esen
tative
,suc
han
appe
aran
cema
yse
rve
ever
yone
'sin
tere
stsan
dac
tual
lysa
vetim
ein
the
long
run.
Inan
yev
ent,
ifth
eco
urtf
ails
tosp
ecify
the
repr
esen
tativ
e'sro
le,th
ene
wly
ap-
10Se
e,e.g
.,Ken
tucky
(Ky.
Rev.
Stat
.Ann
.§40
3.090
(1)(M
ichie/
Bobb
s-M
errill
1984
&Su
pp.1
992))
;Mich
igan
(Mich
.Sta
t.An
n.§2
5.121
)(Ca
llagh
an19
91))
.11
Thes
esta
tesin
clude
Colo
rado
(Inre
Mar
riage
ofBa
rath
ouse
,765
P.2d
610
(Colo
.CI.
App.
1988
),cer
Lde
nied,
490
U.S.
1021
(1989
));Fl
orida
(Fla
.St
atAn
n.§
61.40
3(W
est
1992
));Lo
uisia
na(L
a.Re
v.St
at.
Ann
.§34
5(W
estS
upp.
1995
));M
aine
(Ger
ber
v.Pe
ters,
584
A.2d
605,
606
(Me.
1990
));M
assa
chus
etts
(Mas
s.G
en.L
aws
Ann.
ch.2
15,§
56A
(Wes
t199
3));
Miss
ouri
(Mo.
Ann.
Stat
.§4
52.42
3(2)(
Vern
onSu
pp.1
993))
;New
Hamp
shire
(N.H
.Re
v.St
at.A
nn.§
458:
17-a
(I)(1
992)
);Ne
wM
exico
(Col
lins
v.Ta
bet.
806
P.2d
40(N
M.1
991)
);Ne
wJe
rsey(
NJ.C
r.R.
5:8A
&5:
8B));
Sout
hCa
rolin
a(S
hain-
wald
v.Sh
alnw
ald,
395
S.E.
2d44
1(S
.C.C
t.Ap
p.19
90));
Virg
inia
(Va.
R.A
nn.
86)-
and
Wisc
onsin
(Wis.
Stat
.Ann
.§76
7.045
(4)(W
estS
upp.
1992
)).
I
o
8 . "l|' °ftne American Academy ofMatrimonial Lawyers
pointed representative should take the necessary steps to ensureclarification. Ideally, the representative should arrange for ameeting with all counsel and the judge shortly after the assignment to request specific guidance as to his or her role, the tasksto be performed, and the reasons for this assignment.
When judges are explicit about the purpose of the assignment, the representative should feel free to react. If a lawyerappointed as counsel to represent a child is given instructions bythe court that conflict with the ethical obligations of counsel'srole, counsel should inform the court as promptly as possible thatcounsel's higher duty is to the professional rules. Once counselhas determined that the child is impaired or unimpaired for purposes of the representation pursuant to Standard 2.2, infra, it isappropriate for counsel to inform both court and the parties ofthai determination.
2. Standards Relating to Counsel for Children
a. Determination of "impaired" or "unimpaired" children
The following standards are applicable to all appointmentsof counsel for children. These standards control the behavior of
lawyers acting in the capacity of counsel for children. When lawyers are acting in such.a capacity, of course, they are fully boundby the controlling rules of professional conduct in theirjurisdiction.
2.1 In order to define the appropriate nature of his or her roleand responsibilities as counsel for a child, counsel shoulddetermine whether the child client is "impaired" or"unimpaired."
Comment
Rule 1.14 of the American Bar Association's Model Rules ofProfessional Conduct makes clear that a lawyer's role and responsibilities vary sharply, depending upon whether the client is"impaired" or "unimpaired."12 As the Rule recognizes, childrenare among the populations of clients who may suffer from an
12 Although Model Rules are not binding on counsel unless adopted in aparticular jurisdiction, they refect the most current thinking of the AmericanBar Association and usefully serve as guidelines for these Standards.
Vol. 13, Summer 1995 Representing Children
^impairment" that affects the client's ability to participate mean-hs8Smenat" "T'̂ re,ationshiP'V- the' Rule andte Commentary also recognize, the age of achild is not the central cri.tenon for assessing "impairment." Children can bimpaired" or "unimpaired," depending upon their age demie ofmaturity, ntelligence, level of compr^nsion bil fy \0 c«nicate, and other similar factors. TT.us, in every casein wffinattorney ,s appointed to represent achild client thHuornevmust make athreshold judgment about whether the hen Spaired or "unimpaired." TTiat determination will guide he atorney's responsibilities throughout the course of therepresentation. Standards 2.3 to 2.6, infra, set forth gu'delinesfor representation of "unimpaired" children; Standards 27to2.13, infra, apply to the representation of "impaired" children
2.2 There is arebuttable presumption that children age twelveand above are unimpaired. There is arebuttable presumption that children below the age of welve are impaTedUnder this Standard, the child's counsel, rather 7antijudge, is to make the judgment whether the child is impaired.
Comment
The Model Rules of Professional Conduct provide little guidance to lawyers representing child clients who may be "im-paired" by virtue.of their age and/or level of maturity ^eModel Rules recognize that "a client's ability to make adequate yconsidered decisions" may be "impaired" by reason of "mm^r tvmental disabihty, or for some other reason."" However he'Rules say (a) nothing about how lawyers are to determ net?an^rotn^rtiCUHlar ^ "*"**« ^impaired and (b) "tually nothing about what lawyers may or must do when thevrepresent impaired clients." Rule 1.14(b) merely states: "A law
Any mental or physical condition of aclient that renders him incapable of making aconsidered judgment on his own behalf ^addiUonal responsibilities upon his lawyer. Where an mTompe" em tacting through aguardian or other legal representative Zye1
en
I0Jou
rnalof
,heAf
rican
Academ
yofM
a^on
iolU
*«
Jiveact
ionwit
h»P
«f»
^f^n
nota
dequat
elyact
inthe
reason
ablyb
elieves
thatth
e^g
^-m
\eCo
mment
tocli
ent's
own
intere
st.•»
^S
Uie
Mode
lRule
smak
eclea
rSta
ndard
2.1.p
erhap
stheo
nlyAi
nMhe
M^
^^
^
impair
ed.TO
sCo
mnaen
tary
art.cu
latesi
n^
pr£.
should
conside
rwhen
^de'erm
imngw
^eher
^^
^sum
ptions
asreb
utted
in^"^
l0tow
yeBtod
e-
<X
^^
^^
^a
reacco
rdedtheir
rightf
ulpr
erog
ative
s.im
paire
don
lywh
enhe
orU
nder
the
Mod
elRu
lesac
lient
Fin
teres
t.".6
For
she"ca
nnota
dequat
e^-«*
»"J
^SEq
ualiti
esdis
tinguis
hing
purpo
sesof
thisS
tanda
rd,the
essen
tiaq
wL
'unimp
airedc
lient^
"7
inthe
litigatio
n,to
speak
SS
Kab
l^r/n
'dt
client'sin
terestat
stake,an
d'•
^Tih
ose
decis
ionsw
hich
areno
rmall
ythe
,ookt
osuch
repres
entau
vefor
thos:
deaw
^^
^nQ
nrerog
ralive
ofthe
clien
ttoma
ke.If
a<*en
l.
court
pr0Ce
eding
s,
Repr
esen
tativ
e,hi
.^^^
Cc«
entis
'capable
ofl0B
maked
ecision
son^
**
^o
,con
tributin
gtot
head-
unders
tandin
gthe
matter
n^e^
whe
ther
heisl
egaUy
disqua
h-van
cement
ofhis
intere
sts,e
gardle
ss^otw
n^^
from
hfied
fromper
formin
gcer
tam^
theJaw
yes
^^
fl^
.aU
possi
bleaid
.If
ihedis
abilit
yofa
cuen>
^^
^rep
resent
ative
compel
thelaw
yertom
ak^»
^^
aclwit
haw
yersho
uldcon
sider
allcir
cumsta
ncest
henPre
8^
caTto
safegua
rdand
advanc
e^r^
J^d
edto
i^^
ouslya
lawyer
cannot
V«<
^£Z
Z^
m**
fo<^
,Siu
«opP
assion
alCohp
uctRule
U4(b)(
1*94).
16Id
.
Vol
.13
,S
um
mer
1995
Rep
rese
ntin
gC
hild
ren
li
toap
prec
iate
theco
nseq
uenc
esof
theav
ailab
leal
terna
tives
.Cl
ien
tsw
hoha
veth
ese
qual
ities
shou
ldor
dina
rily
bede
emed
"uni
mpa
ired"
with
inth
em
eani
ngof
the
Mod
elRu
les
ofPr
ofes
sion
alC
ondu
ctan
dth
ese
Stan
dard
s.It
iswo
rthpo
intin
gou
ttha
tthe
Stan
dard
isdi
rect
edso
lely
toth
ena
ture
ofth
erel
atio
nshi
pbe
twee
nco
unse
land
clie
ntw
hen
the
cour
tha
sse
enfit
toap
poin
tco
unse
lfo
ra
child
.Th
eSt
anda
rddo
esno
treq
uire
appo
intm
ento
fan
atto
rney
toev
ery
child
who
isa
party
inlit
igat
ion.
Inde
ed,a
sexp
lain
edin
Stan
dard
1.1,
thes
eSt
anda
rds
assu
me
that
child
ren
will
notb
ere
pres
ente
dby
coun
sel
exce
ptwh
enth
ere
isa
spec
ific
reas
onor
need
forre
pres
enta
tion.
Mor
eove
r,th
eSt
anda
rd's
use
ofag
etw
elve
asa
divi
ding
line
foras
sess
ing
capa
city
ofch
ildre
nis
noti
nten
ded
toap
ply,
eith
erdi
rectl
yor
byan
alogy
,to
the
ques
tion
ofwh
ether
(and
,if
so,
when
)a
judg
esh
ould
acco
rdde
fere
nce
toth
esta
tedpr
efere
nces
ofa
child
.Th
isSt
anda
rdis
conc
erne
dso
lely
with
the
type
ofre
latio
nshi
pan
atto
rney
shou
ldha
vewi
thhis
orhe
rch
ildcli
ent.
(a)
The
Use
ofAg
e1\v
elve
asa
Divid
ing
Line
for
theRe
butta
ble
Pre
sum
ptio
n
The
stand
ard
delib
erat
ely
uses
anob
ject
ive
chro
nolo
gica
lcr
iterio
nto
disti
ngui
shbe
twee
nch
ildre
n.U
nder
this
Stan
dard
,la
wyer
sre
pres
entin
gch
ildre
nag
edtw
elve
orol
der
are
topr
esu
me
thei
rcl
ient
sto
beca
pabl
eof
dire
ctin
gth
ela
wye
r'sac
tions
.Th
eag
eof
twelv
ewa
sca
refu
llyse
lect
ed.
Alth
ough
any
chro
nolo
gica
lage
isne
cess
arily
arbi
trary
,anu
mbe
rof
facto
rssu
gges
tth
atag
etw
elve
isan
appr
opria
tediv
iding
poin
twith
rega
rdto
child
ren's
capa
city
toun
ders
tand
the
circu
msta
nces
ofth
eirca
sean
dto
artic
ulat
ea
cons
ider
edpo
sitio
nab
outt
heir
futu
re.
Firs
t,th
elit
erat
ure
onco
gniti
vede
velo
pmen
tsu
gges
tsth
atch
ildre
nre
ach
the
high
ests
tage
ofco
gniti
vede
velo
pmen
tbe
twee
nth
eag
esof
eleve
nan
dfou
rteen
,17an
dma
nych
ildre
nha
vealr
eady
reac
hed
the
high
ests
tage
ofco
gniti
vede
velo
pmen
tby
the
time
they
are
twelv
e.As
alea
ding
auth
or,w
ritin
gon
the
subj
ecto
f
»Se
eLo
isA
.Wei
thor
n&
Susa
nA
.Cam
pbel
l,Th
eC
ompe
tenc
yof
Chil
dren
and
Adol
esce
nts
toM
ake
Info
rmed
Trea
tmen
tD
ecisi
ons,
53C
hild
Dev
.15
89,1
589-
91(1
982)
;B
arbe
lInh
elde
r&
Jean
Piao
et,T
heG
row
thof
Lo
gic
al
Th
inki
ng
(195
8).
L/ii
•—•
to
12 ml of the American Academy of Matrimonial Lawyers
when children should have the power to consent to health-related treatment, has written:
Many authors have reexamined the presumption thatminors are incompetent to make decisions regardingtheir own health or research participation. The conclusions drawn by these authors are strikingly similar. Onthe basis of cognitive-developmental theory and research, all authors suggest that children age. 14 andolder possess the requisite cognitive and intellectual capacities to render them comparable to adults, as agroup, relative to competency. And, most of these authors recognize that many children attain this highestlevel of cognitive functioning by age 12."18This research was conducted to support the conclusion that
almost all children above the age of twelve are competent tomake informed medical decisions about their own treatment.Surely if children over the age of twelve are able to make suchdecisions, they are mature and intelligent enough to perform thelesser task of instructing their lawyer as to their wishes in a custody or visitation proceeding.
Second, children as young as twelve years ofage already enjoy many rights recognized under the law. These rights includethe First Amendment right to free speech19 and the FourteenthAmendment privacy and autonomy rights to choose to terminatean abortion over the objection of their parents.20
Indeed, as the empirical data suggests, many judges alreadytreat children age twelve as a dividing line with regard to thedegree to which judges are interested in the views of the child. Inthe only known survey of its kind, juvenile court and circuit courtjudges in Virginia who together decide all custody cases in thatstate were surveyed to determine whether and to what extentIhey are interested in the views of the children who are the sub-
is- Lois A. Weithorn, Involving Children in Decisions Affecting Their OwnWelfare, in Children's Competence to Consent 235 (Gary B. Melton et al.1983). See also, Gary B. Melton, Children's Competence to Consent, in Chil-drens Competence to Consent 1, 14 (Gary B. Mellon el al. eds., 1983).
19 See, e.g., Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S.503(1969).
20 See, e.g., Ohio v. Akron Reproductive Health Ctr., 497 U.S. 502 (1990);BeUotti v. Baird, 443 U.S. 622 (1979). See also Carey v. Population Serv. Int'l,431 U.S. 678 (1977).
Vol. 13, Summer 1995 Representing Children lj
ject of the custody dispute.21 Virtually all judges reported thatthe preference ofchildren aged fourteen and older was extemelyimportant (89 percent of the judges surveyed described the preference of children fourteen years or older as dispositive or extremely important).22 Moreover, virtually all of the judges ratedthe preferences of children aged ten and thirteen as extremelyimportant (54 percent).23 In sharp contrast, 92 percent of thejudges rated the preferences of children between the ages of sixto nineas only somewhat important or as not important.24 Mostjudgesconsidered the views of childrenbelow the age of six to beirrelevant.25
This study might suggest that the presumption of unimpair-mentbe made at age ten. Unfortunately, because the study useda broad category (ages ten to thirteen) foi children immediatelybelow fourteen years of age, the study does not indicate howmany judges would give even greater weight to children agedtwelve and thirteen, as opposed to those aged ten and elevem.At the very least, however, this study clearly shows that judgesgive significant weight to the expressed views of a twelve-year-old.
(b) Exercising Discretion As to Each Client
It is, of course, neither possible nor desirable to eliminate alldiscretionfor lawyers! This portion of the Commentarydiscusseshow a lawyer ought to determine whether a child is of sufficientpreference. It is essential that lawyers be given meaningful guidance when making this crucial determination or else a centralpurpose of these Standards would be defeated—the avoidance ofdramatically disparate behavior byprofessionals in similarly situated cases.
For purposes of determining impairment, counsel's inquiryshould focus on the process by which a client reaches a position,not on the position itself. A lawyer who has reason to believe achild over the age of twelve is impaired should evaluate the
21 Elizabeth S. Scott et al., Children's Preference in Adjudicated CustodyDecisions, 22 Ga. L. Rev. 1035 (1988).
22 Id. at 1050.
23 Id.24 id.
25 Id. at 1046.
I
14Jou
rnalo
ftheA
meric
anAc
adem
yofM
atrim
onial
Lawy
ers
child
'sab
ilityt
oeng
agei
naco
heren
tcon
versat
ionan
dtoc
ompre
hend
thenat
ureof
thepro
ceedin
gs.In
«^
»™
»sho
uldloo
ktot
heclie
nt's"ba
sicv*
*"
^*
^?
^no
ssibil
itiesd
escr
ibed."
"So
long
asa
twelv
e-yea
r-old
orold
erchU
diab
e(a)
toun
derst
and
thena
turea
ndcU
cumsta
nceso
fhe
case
(b)to
appre
ciate
theco
nsequ
ences
ofeac
halte
rnativ
eour
seof^c
tion;^)
toW\V
^.«
T^
thelaw
yerab
outth
emeri
tsof
theliti
gatio
nan
d(d)
toexp
ressa
prefer
encet
hatsi
milarl
ysitu
atedp
ersons
migh
tchoo
eorth
atde
rived
from
ratio
nalo
rlog
icalr
easo
ning,"
thelaw
yer
must
treat
the
clien
tasu
nim
paire
d.„,
.„„,
„,It
isim
porta
ntto
note
the
testd
oes
nota
llow
anat
torn
eywh
obe.e
v^hU
orher
client
hasse.
ected
anop
tiont
hat,sn
otin
.heclie
nt'sbes
tintere
ststo
declar
ethe
client"
"J""
**^'
ifthe
clien
t'sch
oiceh
asso
mera
tiona
land
reason
able
bast
oit
wheth
eror
notc
ouns
elbe
lieve
sitt
obe
inthe
clien
tsbe
stnte
r-Tst
sU
isthe
respo
nsibil
ityof
theatt
orney
tofol
lowthe
clien
tsin
mctfo
nsUn
derthe
Model
Rules
ofPro
fessio
nalRe
spons.
-bi
UycH
entsa
refre
etod
ecide
forthe
mselv
eswh
atou
tcome
they
urete
ran
d,ex
cept
inthe
rarec
ircum
stanc
eswh
encli
ents
area
cC
lyimp
aired,
lawyer
smust
respec
tthew
ishes
and^
frucuo
ngiv
ento°
hemby
theirc
lients.
Under
these
P"*
^*^
mavn
ot"re
ason
ably
belie
ve"a
clien
tisim
paire
dsim
plybe
caus
ehe
clien
tseek
sa
differ
ento
utcom
etha
nthe
awyer
would
choo
seTt
helaw
yerwe
refre
etom
aket
hatd
eterm
inatio
nfor
thecli
en
t. (c)La
wyers
,Not
Court
,Are
toDe
termi
neIm
pairm
ent
The
lasts
enten
cein
theSta
ndar
dis
notm
eant
toch
ange
currem
law^e
terms
ofthe
relatio
nship
betwe
enan
attorn
eyan
dad
ienia
realw
aysa
matte
rfor
theatt
orne
yto
deter
mine
.
'!6
Wei
thor
n.su
pra
note
17,a
t248
.«
The
Comm
entlo
theJuv
enile
Justice
Slanda
rds'̂n
unen
dlha
ZTsV
andar
d3.1(b
)cut.
(Instit
uteof
Judicia
lAdm
inistr
ation
/Amenc
anBa
rA
ssoc
iati
on19
82).
Vol
.1
3,
Su
mm
er
LW
5K
epre
sen
iin
gL
.nu
are
nu
Un
der
bo
thth
eM
odel
Rul
esof
Pro
fess
iona
lC
ondu
ct28
and
the
Cod
eof
Pro
fess
iona
lR
espo
nsib
ility
,29
atto
rney
sar
eob
liged
tom
aket
heca
se-b
y-ca
sede
term
inat
ion
rega
rdin
ga
clie
nt's
capa
city
tose
tth
ego
als
ofth
ere
pres
enta
tion.
Thi
sis
anim
poss
ible
task
for
judg
esto
perf
orm
since
itre
quire
ssp
endi
ngm
any
hour
sw
itha
clie
nt.
Mor
eove
r,co
unse
l'sde
term
inat
ion
isno
tpr
oper
lysu
bje
ctto
revi
ewby
aco
urtb
ecau
sean
yju
dici
alin
quiry
wou
ldne
ces
sari
lyin
trud
ein
toth
eco
nfid
entia
lco
mm
unic
atio
nbe
twee
nco
un
sel
an
dth
ecl
ien
t.
b.R
epre
sent
ing
"Uni
mpa
ired"
Chi
ldre
n
2.3
Unl
ess
cont
rolli
ngla
wex
pres
sly
indi
cate
sot
herw
ise,
coun
sel's
role
inre
pres
entin
gan
unim
paire
dch
ildcl
ient
isth
esa
me
aswh
enre
pres
entin
gan
unim
paire
dad
ultc
lient
.
Co
mm
en
t
As
stat
edin
the
Com
men
tto
Stan
dard
2.1,
the
cruc
ial
dis
tinct
ion
betw
een
cate
gori
esof
clie
nts
isim
pair
men
tve
rsus
unim
-pa
irmen
t,no
tag
eby
itsel
f.O
nce
child
ren
are
foun
dto
beun
impa
ired
,th
eyar
eto
betr
eate
dsu
bsta
ntia
llylik
eal
lot
her
unim
pair
edcl
ient
sre
gard
less
ofth
eir
age.
This
mea
ns,
amon
got
her
thin
gs,
that
allc
omm
unic
atio
nsbe
twee
nat
torn
eyan
dcli
ent
are
priv
ilege
dan
dsu
bjec
tto
the
prof
essio
n's
ordi
nary
rule
sof
conf
iden
tialit
y.Th
eon
lydi
ffere
nce
thes
eSt
anda
rds
reco
gniz
ebe
twee
nre
pres
entin
gun
impa
ired
child
ren
and
all
othe
run
impa
ired
clie
nts
isse
tfo
rthin
Stan
dard
2.6.
Repr
esen
tatio
nof
mul
tiple
clie
nts
inth
esa
me
proc
eedi
ngpr
esen
tssp
ecia
lcon
cern
sre
gard
ing
conf
licts
ofin
tere
st.Co
unse
lsh
ould
rem
ain
sens
itive
toth
epo
ssib
ility
that
sibl
ings
may
requ
irese
para
teco
unse
land
that
repr
esen
ting
both
anun
impa
ired
and
anim
paire
dch
ildin
the
sam
epr
ocee
ding
may
resu
ltin
aco
nfl
ict
of
inte
rest
.30
28M
od
elR
ule
so
fP
rofe
ssio
na
lC
on
du
ctR
ule
1.14
(199
4).
29M
od
elC
od
eo
fP
rofe
ssio
na
lR
espo
nsib
ilit
yE
C7-
12(1
982)
.30
See
Mo
del
Ru
les
of
Pro
fess
ion
al
Co
nd
uct
Rul
e1.
7(1
994)
.
L/»•
4^
16 Ju p/ of the American Academy of Matrimonial Lawyers
2.4 Unimpaired clients, regardless ofage, have theright to set thegoals of representation. Counsel for an unimpaired clientshould discuss the case with the child and counsel him or her
with regard to the objectives of representation. Counsel isobliged to seek to attain the objectives ofrepresentation set bythe client.
Comment
The ethical rules of professional conduct emphasize the cli-enl-centered focus of lawyers. The American Bar Association'sModel Code of Professional Responsibility provides that "the authority to make decisions is exclusively that of the client and, ifmade within the framework of the law, such decisions are binding on his lawyer."31 Similarly, the Model Rules of ProfessionalConduct require that lawyers representing unimpaired clients"abide by a client's decisions concerning the objectives of representation."32 This requirement "is based on the assumption thatthe client, when properly advised and assisted, is capable of making decisions about important matters."33 Lawyers representingchildren must accord them the same ultimate authority to determine the objectives of the litigation, unless the child's ability tomake decisions is impaired.
The attorney-client relationship is, of course, richly textured.34 A central component of lawyering involves assisting clients to reach the position that makes the most sense for them.Lawyers are expected to counsel clients, to provide them withfeedback, and to help them sort out the advantages and disadvantages of the choices before them. This important counselingrole is especially vital when lawyers represent young people.However, the basic principle remains that the final choice ofwhat position to take in the litigation is the client's.35
31 Model Code of Professional Responsibility EC 7-7 (1982).32 Model Rules of Professional Conduct Rule 1.2(a) (1994).33 hi. Rule 1.14 cmt.
34 Id. Rule 2.1 (1994).35 See also Bounds of Advocacy Standard 2.17 (American Academy of
Matrimonial Lawyers 1991). reprinted in 9 J. Am. Acad. Matrim. Law. 1, 24(1992): "An attorney should not allow personal, moral or religiousbeliefs to diminish loyalty to the client or usurp the client's right
to make decisions concerning the objectives of representation."
rol. 13, Summer 1995 Representing Children 17
Difficult ethical issues remain when, counsel believes thechild spreference is the result of parental manipulation or whencounse has evidence that awarding custody in accordance withthe child s preference will put the child at risk of severe harmAt a minimum, counsel's role as counselor, and advisor shouldinclude confronting the client with these concerns and having afull and frank conversation about the implications of the child'sstated preferences. But counsel should not be free to second-guess the client or to work against the legitimate ends the clientseeks If counsel is-unsuccessful in persuading the unimpairedclient to seek adifferent outcome, counsel is obliged to zealouslyseek to effect the result sought by the client even when counseldisagrees with the wisdom of the client's preferences.3' The onlvmeasure of escape provided by the ethical rules is when the "client insists upon pursuing an objective that the lawyer considersrepugnant or imprudent."" Counsel may then ask the court topermit withdrawal, provided that "withdrawal can be accomplished without material adverse effect on the interests of theclient. 3S
2.5 Counselfor an unimpaired child should be treated by all parties and the court as acounsel ofrecord unless the court expressly specifies otherwise.
Coinriient
,,™s *a"dard "kV'y cIarifies that counsel for an unimpairedchild should be treated as all other counsel of record in alawsuitexcept to the extent limited by court order. The emphasis of thisStandard is on process. When notices are sent to counsel forexample, the child's counsel should be included. When pleadingsare filed, all counsel of record should routinely receive themSimilarly, attorneys for other parties may not communicate withhe chi dor have the child evaluated without the permission of
the child s counsel.
36 See, e.g., Robert M. Horowitz &Howard A. Davidson, Tough Deci-sionsfor the Tender Years, Fam. Advoc, Winter 1988, at 8,11. See also Juvenile Justice Standards, supra note 27, at Standard 3.1(b)(1).
37 Model Rules of Professional Conduct Rule 116 fl99<n38 Id. Rule 1.16(b). " l '"
LA
18Jo
urna
loft
heAm
erica
nAc
adem
yof
Matr
imon
ialLa
wyers
Howe
ver,
thiss
tanda
rdis
notm
eant
to.ex
pand
thepu
rpos
eof
theini
tiala
ssign
ment.
Whe
n,as
may
beex
pecte
din
theva
stma
ority
ofca
sesthe
court
hasl
imite
dcou
nsel'
sinv
olvem
entt
oS
sof
custod
yorv
isitatio
n-exc
luding
counse
lfrom
taking
prt
nothe
rmatt
erssuc
hasp
ropert
ydivi
siono
rfina
ncial
issues
-iti
sapp
ropria
teto
treat
thech
ild's
lawyer
asco
unsel
ofrec
ordon
lywi
threg
ardto
issue
sofc
ustod
yor
visita
tion.
26Wh
enrep
resen
tinga
nunim
paire
dchil
d,cou
nsels
hould
take
appro
priate
measu
resto
protec
tthe
child
from
harm
that
mayb
einc
urred
asar
esult
ofthe
litiga
tion
bystr
iving
toex
pedit
ethe
procee
dings
ande
ncou
raging
settle
ment,
inord
erto
redu
cetra
uma
that
can
beca
used
byth
elit
igatio
n.
Co
mm
en
t
Litig
ation
involv
ingdis
soluti
onof
thefam
ilycan
bepa
rticu
larly
acrim
oniou
s.Al
lpers
onsi
nvolv
edcan
suffer
greaU
)>u;
aesu
ltof
thish
ostili
tyan
dco
nflict
.Ch
ildren
areesp
ecial
lyvu
lne
rable
tothe
harm
scom
monly
assoc
iated
with
custo
dyan
dvis
i-la
lion
liti
gati
on.
,.
.Th
eSt
anda
rds
forM
atrim
onial
Lawy
ersen
dorse
dby
heAm
erica
nAc
adem
yof
Matr
imon
ialLa
wyers
alrea
dygo
furth
erto
heM
odel
Rules
ofPr
ofes
siona
lCo
nduc
tby
requ
iring
coun
selto
"enc
ourag
ethe
settle
ment
ofma
rital
dispu
teshro
ugh
negoU
aton
.med
iation
,ora
rbitr
ation
.-'Th
atSta
ndard
,like
this
one?
eogni
zestha
tinma
trimon
ialcas
estra
dition
alno
tions
ofva
nning
andl
osing
areles
sapp
ropria
tetha
nino
thera
reaso
fhe
Taw.K
gthe
interes
tsof
allfam
ilyme
mbers
intoacc
ount,s
just
ifie
din
these
case
s.^A
lthou
ghthe
seSta
ndard
sreq
uirec
ounse
ltoc
edeu
ltimate
autho
rityto
theun
impa
iredc
hildt
odire
ctco
unsel
scon
duct
itiap
propri
atefor
counse
ltoadv
ancet
heint
erests
ofthe
child
bypro
tectin
ghim
orher
from
unnece
ssary
conflic
t.Co
unsel
should
beev
ermi
ndful
thatth
epros
ecutio
nofth
elitig
ation
often
anbe
harm
fulto
child
renof
anyag
e.Fo
rsam
ple
coun
selsh
ould
tryto
minim
izethe
numb
erof
interv
iews
towh
icha
child
may
beex
posed
asar
esult
ofinv
estiga
tions
orex
pert
evalu
ation
s.
39B
ound
sof
Adv
ocac
y,su
pra
nole
35St
anda
rd2.1
5.
Vol
.13
,S
um
mer
1995
Rep
rese
nti
ng
Ch
ild
ren
iy
This
Stan
dard
requ
ires
coun
sel
tota
keap
prop
riate
step
sto
de-e
scal
ate
all
conf
lict
inth
elit
igat
ion.
40C
ouns
elsh
ould
try,
cons
iste
ntw
ithth
ecl
ient
'sin
stru
ctio
nson
the
goal
s:(a
)to
reso
lve
the
disp
ute
inth
ele
astc
onte
ntio
usm
anne
r;(b
)to
reso
lve
the
disp
ute
inth
em
oste
xped
itiou
sm
anne
r;an
d(c
)to
expo
seth
ech
ildto
aslit
tleof
the
cont
rove
rsy
aspo
ssib
le.
To
acco
mpl
ish
this,
coun
sels
houl
dat
tem
ptto
nego
tiate
disp
utes
that
have
the
pote
ntia
lto
esca
late
into
harm
fulc
onfli
ct.Co
unse
lsho
uld
also
urge
the
parti
esan
dth
eirl
awye
rsto
keep
the
inte
rest
ofth
ech
ildpa
ram
ount
,rem
indi
ngth
emat
vario
ussta
geso
fthe
proc
eedi
ngs
how
parti
cula
rac
tions
may
affe
ctth
ech
ildan
dre
com
men
ding
alte
rnat
ive
actio
nsth
atw
ould
bette
rse
rve
the
child
'sin
tere
sts.
c.R
epre
sent
ing
"Im
paire
d"Ch
ildre
n
2.7
Whe
na
child
clie
nt,
byvi
rtue
ofhi
sor
her
impa
irmen
t,is
unab
leto
sett
hego
als
ofre
pres
enta
tion,
the
child
'sla
wyer
shal
lnot
advo
cate
apo
sitio
nwi
thre
gard
toth
eou
tcom
eof
the
proc
eedi
ngor
issue
sco
ntes
teddu
ring
the
litig
atio
n.
Co
mm
en
t
The
mos
tser
ious
thre
atto
the
rule
ofla
wpo
sed
byth
eas
signm
ento
fcou
nsel
forc
hildr
enis
thein
trodu
ction
ofan
adult
who
isfre
eto
advo
cate
his
orhe
row
npr
efer
red
outc
ome
inth
ena
me
ofth
ech
ild's
best
inte
rests
.Th
eda
nger
isth
atth
isad
ditio
nal
adul
twill
mak
ea
diff
eren
cein
the
outc
ome
ofth
epr
oce
edin
gwi
thou
tany
assu
ranc
eth
atth
eou
tcom
eis
"bet
ter"
(that
is,w
ithou
tan
assu
ranc
eth
atth
eou
tcom
ebe
stse
rves
the
child
'sin
teres
ts).
This
Stan
dard
rejec
tsas
fund
amen
tally
flawe
da
rule
that
gives
attor
neys
theau
thor
ityto
advo
cate
the
resu
ltthe
yth
emse
lves
pref
er,i
nth
ecl
ient
'sna
me.4
1
40Th
ese
Stan
dard
sim
pose
this
oblig
ation
onre
pres
entat
ives
ofall
chil
dren
,whe
ther
they
areco
unse
lfor
impa
ired
clien
tsor
guar
dian
sad
litem
.Se
eS
tand
ards
2.10
and
3.5,
infr
a.4»
As
the
com
men
tto
Stan
dard
2.3sta
tes,
Mod
elRu
les
ofPr
ofes
siona
lCo
nduc
tRul
e1.1
4(b)
appe
ars
toall
owa
lawye
rwho
reas
onab
lybe
lieve
sth
aith
ecli
ent
isim
paire
dto
"see
kth
eap
poin
tmen
tof
agu
ardi
anor
take
othe
rpr
otecti
veac
tionw
ithres
pect
toac
lienl.
"Th
ecom
ments
totha
iRule
add,
"li]f
the
perso
nha
sno
guar
dian
orleg
alre
pres
entat
ive,
the
lawye
rofte
nm
usta
ctas
defac
togu
ardi
an."
Inor
dina
rygu
ardi
an-w
ard
relat
ions
hips
,gua
rdian
sare
free
toad
voca
tea
posi
tion
cont
rary
tow
hat
the
war
dw
ants.
LA
l
t—»
ON
20
mal
ofth
eA
mer
ican
Aca
dem
yo
fMat
rim
onia
lL
awye
rs
Whe
nla
wye
rsre
pres
ent
unim
paire
dcl
ient
s,th
ein
divi
dual
law
yer's
pers
onal
view
sar
evi
rtual
lyirr
elev
ant.
Bec
ause
law
yers
mus
t"a
bide
byth
ecl
ient
'sde
cisio
ns"4
2W
hen
repr
esen
ting
ordi
nary
clie
nts,
all
are
oblig
edto
perf
orm
the
sam
ero
le.
Onc
eth
eun
impa
ired
clie
ntha
sde
term
ined
his
orhe
rgoa
ls,co
unse
l'sco
ndu
ctde
pend
sin
now
ayon
his
orhe
rper
sona
lva
lues
.Si
mila
rlysi
tuat
edcl
ient
sw
illbe
sim
ilarl
yre
pres
ente
d.A
lthou
ghca
ses
may
bede
cide
ddi
ffere
ntly
beca
use
ofth
equ
ality
ofco
unse
l'ssk
ill,s
uch
diff
eren
csar
eun
avoi
dabl
e.O
urle
gals
yste
mca
ndo
nom
ore
—bu
tsh
ould
dono
less
—th
ande
fine
anob
ject
ive,
unifo
rmro
lefo
rpr
ofes
sion
als.
Whe
ncl
ient
sar
eim
paire
d,it
iseq
ually
impo
rtant
tode
velo
pst
anda
rds
that
seek
toac
hiev
esu
chun
iform
ity.
Acc
ordi
ngly
,th
ese
Sta
ndar
dsde
fine
aun
ifor
mro
leof
coun
sel
for
law
yers
rep
rese
ntin
gim
paire
dch
ildre
nth
atdo
esno
tdep
end
onth
eop
inio
nsor
valu
esof
the
law
yer.
Whe
nco
unse
lis
free
tode
term
ine
wha
tis
the
best
outc
ome
for
the
clie
ntan
dth
ento
deve
lop
alit
igat
ion
stra
tegy
toob
tain
that
outc
ome,
disc
repa
ntre
sults
will
beso
ught
byth
ech
ild's
coun
seld
epen
ding
onth
eva
lues
and
belie
fsof
the
atto
rney
fulf
illin
gth
atro
le.
Inot
her
wor
ds,
unde
rsu
chan
arra
ngem
ent
sim
ilarl
ysi
tuat
edch
ildre
nw
ould
besu
bjec
tto
dram
atic
ally
dive
rgen
tre
pre
sent
atio
nde
pend
ing
onth
evi
ews
ofth
epa
rticu
lar
law
yer
assig
ned
the
task
.Th
isar
bitra
rines
sis
the
antit
hesis
ofth
eru
leof
law.
Itis
diffi
cult
toju
stify
asy
stem
that
treat
ssim
ilarly
situ
ated
pers
onss
odi
ffer
ently
.
Even
ifet
hica
lru
les
argu
ably
allo
wla
wye
rsac
ting
as"d
efa
cto
guar
dian
s"to
advo
cate
apos
ition
base
don
the
lawye
r'spe
rsona
lopi
nion
ofwh
atis
best
for
the
child
,th
eydo
nol
requ
irelaw
yers
todo
so;
this
Stan
dard
proh
ibits
such
actio
n.T
heM
odel
Rul
esin
sist
the
law
yers
only
unde
rtake
assi
gnm
ents
that
they
are
com
pete
ntto
hand
le.M
odel
Rul
esof
Prof
essi
onal
.C
ondu
ctRu
leI.I
(199
4).
Sinc
elaw
yers
are
untra
ined
tode
term
ine
wha
tisb
estf
orch
ildr
en,i
tisc
onsi
sten
twith
thos
eru
les
fora
nat
torn
eyac
ting
asa
"de
fact
ogu
ard
ian"
toes
chew
taki
ngan
ypo
sitio
non
the
ultim
ate
outc
ome
ofth
eca
se.
Ther
efor
e,un
der
this
Stan
dard
,law
yers
who
are
assig
ned
tore
pres
enti
mpa
ired
child
ren
shou
ldre
fuse
the
assi
gnm
ent
asbe
yond
thei
rcom
pete
nce
ifth
eco
urt
dire
cts
Ihem
tom
ake
are
com
men
dati
onon
the
outc
ome
ofth
eca
se.
«M
od
elR
ule
so
fP
rofe
ssio
nal
Co
nd
uct
Rul
e1.
2(a)
(199
4).
Vol
.13
,S
um
mer
1995
Rep
rese
ntin
gC
hild
ren
2,
2.8To
thegr
eates
texte
ntfea
sible,
coun
self
oran
impa
ired
child
shou
ldma
intain
ano
rmal
attor
ney-c
lient
relat
ionsh
ip,Th
issh
ould
includ
e,wh
enev
erpo
ssibl
e,,ad
vising
thecli
ent
ofco
unse
l'sro
lean
din
form
ing
thecli
ento
fall
signi
fican
tde
velop
men
tsin
theca
se.W
hen
com
mun
icatin
gwi
ththe
child
clien
t,co
unsel
shou
ldus
eterm
sand
conc
epts
com
preh
ensib
leto
ach
ildo
fthe
clie
nt's
age
and
inte
llect
.
Co
mm
en
t
Perh
aps
themo
stim
porta
ntfun
ction
coun
selca
npe
rform
when
repres
entin
gan
impa
ired
child
isto
deve
lopas
trong
rela
tions
hipwi
ththe
child
.Un
der
this
Stan
dard
,law
yers
areex
pect
edto
keep
inre
gula
rco
ntac
twi
thth
eir
clie
nts
and
are
enco
urag
edto
mai
ntai
nan
ongo
ing
dial
ogue
with
them
.Th
isis
cons
isten
twith
the
Mod
elRu
lesof
Prof
essio
nalC
ondu
ct.Ru
le1.1
4(a)s
tates
thate
ven
when
clien
tsare
impa
ired,
lawye
rsare
oblig
edto
try,"
asfa
rasr
easo
nabl
ypo
ssib
le,[to
]main
tain
ano
rm
alcli
ent-l
awye
rre
latio
nshi
p."43
Even
when
the
clien
tis
impa
ired,
itis
impo
rtant
for
the
child
tokn
owth
atth
ere
isan
atto
rney
inth
epr
ocee
ding
who
will
keep
the
child
info
rmed
ofal
lre
leva
ntin
form
atio
ndu
ring
the
cour
seof
the
case
.44
2.9Co
unsel
fora
nim
paire
dchil
dsho
uldbe
treate
dbya
llpar
ties
and
the
cour
tas
aco
unse
lof
reco
rdun
less
the
cour
tex
pres
sly
spec
ifie
sot
herw
ise.
Co
mm
en
t
This
Stan
dard
,lik
eSt
anda
rd2.5
,rem
inds
allpa
rties
that
once
assig
ned
tore
pres
enta
child
,cou
nsel
isan
othe
rcou
nsel
ofrec
ord
inthe
case
and
shou
ldbe
treate
dac
cord
ingly.
This
mea
ns,a
mon
got
hert
hing
s,an
dsu
bjec
tto
cour
tord
erin
apar
ticula
rcase
,tha
tthe
child
'sco
unsel
shou
ld:(a)
beser
ved
with
cop
iesof
allpa
pers;
(b)b
egiv
enno
tice
ofall
cour
tapp
eara
nces
orco
nfere
nces
;and
(c)ap
pear
atev
eryco
nfere
nce
and
every
cour
tap
pear
ance
unle
ssex
cuse
dby
the
cour
t.In
addi
tion,
coun
self
or
43Id
.R
ule
1.14
(a).
44Th
isis
beca
use,
asth
eco
mm
entt
oM
odel
Rul
esof
Prof
essi
onal
Con
duct
Rule
1.14
states
,"a
clien
tlac
king
legal
com
peten
ceof
tenha
sthe
abili
tyto
unde
rsta
nd,d
elib
erat
eup
on,a
ndre
ach
conc
lusio
nsab
outm
atte
rsaf
fect
ing
the
clie
nt's
own
wel
l-bei
ng."
22 Journal of the American Academy of Matrimonial Lawyers
an impaired child, as all other counsel of record, may file anymotions or other pleadings seeking relief on the child sbehalf.
However, the admonition in the Commentary to Standard25should be kept in mind. This standard is not meant to expandthe purpose of the initial assignment. When the court has limitedcounsel's involvement to issues of custody or visitation - excluding counsel from taking part in other matters such as property division or financial issues - it is appropriate to treat thechild's lawyer as counsel of record only with regard to those issues for which counsel has been assigned.
210 When representing an impaired child, counsel should takeappropriate measures to protect the child from harm thatmay be incurred as a result of the litigation by striving toexpedite the proceedings and encouraging settlement in order to reduce trauma that can be caused by the litigation.
Comment
As set forth in the Commentary to Standard 2.6, children areparticularly vulnerable to the harms commonly associated withcustody and visitation litigation. The Commentary to Standard26is generally applicable to this Standard. However, nothing inthis Standard is intended to put counsel for the impaired child inthe awkward position of being asked to propose aparticular outcome that appears to be based on the preference of the child scounsel. If either of the parties were to ask counsel to state suchaposition, consistent with Standard 2.7 counsel must decline todo so.45
45 Experienced counsel who have represented very young children in custody proceedings consider the roles of investigator and protector to be of enormous benefit to children. Stephen Wizner &Miriam Berkman. Being "Lawyerfor aChild Too Young to be aClient: AClinical Study, 68 Neb. L. Rev. J3U(1989).
Vol. 13, Summer 1995 Representing Children 23
2.11 As a general rule, counsel for an impaired child should encourage settlement and should not undermine settlement efforts by the parties. In exceptional cases, where counselreasonably believes that the court would not approve thesettlement if it were aware of certain facts, counsel shouldbring those facts to the court's attention.
Comment
As Standard 2.10 indicates, ordinarily counsel serves thechild's interests by encouraging settlement. However, whencounsel believes a proposed settlement may endanger the child,counsel's duty to protect the child may require interposing anobjection to the proposed settlement at least to the extent ofbringing the matter to the court's attention. This duty appliesunless counsel is: prohibited from disclosing information by reason of the attorney-client privilege. This standard requires thatcounsel reasonably believe the court would not approve the settlement if it possessed the facts known to counsel. In those exceptional cases, counsel should alert the court before allowingthe settlement to be completed. The manner of alerting the courtmay vary. However, ex parte communication is inappropriate.Ordinarily, counsel should file a formal pleading with notice toall parties. '
2.12 During the pretrialstage of a case, counsel for an impairedchild should use all appropriate procedures to develop factswhich the decisionmaker should consider in deciding thecase and which otherwise would not be brought to the decisionmaker's attention.
Comment
Counsel for'impaired children can play a very productiverole in custody proceedings by becoming an aggressive factfinder seeking to uncover information that the decisionmakershould consider relevant. This Standard addresses counsel's role
in the pretrial stage. Standard 2.13 focuses on counsel's role atan evidentiary hearing. These two Standards are closely connected and are both founded oh a certain model of the role of a
lawyer for an impaired client. This objectively defined role issimilar to that of amicus curiae: counsel should become familiar
^urnal of the American Academy of Matrimonial Lawyers
with the factors that properly may be taken into account in determining the child's best interests, then satisfy himself or herselfthat the court has the necessary facts to decide the case.
The precise steps counsel should take to accomplish this willvary depending on the procedures in the jurisdiction. In manyjurisdictions, for example, an independent investigation, will beconducted by an agency connected with the court. In other jurisdictions, no investigation of any kind will be ordered. Counselshould set into motion the process by which relevant facts will beuncovered. If an independent investigation has been conducted,it may be sufficient for counsel to speak with the principal investigator and read the final report. If counsel is satisfied that athorough investigation has been conducted, there may be no further investigative work necessary.
Among the procedures to develop facts that counsel shouldconsiderare all types of discovery, including interrogatories, depositions, interviews of witnesses, requests for production of documents, and so forth. Ordinarily, counsel should plan to intervieweach of the adults seeking custody or visitation (after receivingpermission from their counsel) and to ascertain whether thereare other witnesses who counsel should interview, such ascaregivers, healthcare providers, and teachers. In addition, inpreparing for trial, counsel should consider interviewing all witnesses who may be called, including experts who have filed a report with the court or who have been retained or assigned toinvestigate the case.
Some might object that reducing counsel's role to a fact-gatherer who may present facts to the court that would otherwisenot be disclosed deprives the child of his or her own lawyerwithin the ordinary use of the term.46 Although this iscorrect, itis not possible to provide an impaired child with an advocate inthe traditional sense of the word. It is for this reason, amongothers, that these Standards prohibit counsel representing impaired children from undertaking a traditional advocate's role.Having eschewed such a role, this Standard strives to define anobjective alternative role.
46 Shannan L. Wilber, Independent Counsel for Children, 27 Fam. L. Q.349, 355-56 (1993).
Vol. 13, Summer 1995 Representing Children z„
2.13 ^ atrial or hearing to determine custody or visitation theprimary function of counsel for an impaired child is tomake the decisionmaker aware ofall facts which the decisionmaker should consider.
Comment
This Standard addresses the role of counsel for an impaireddar9 9n HVt!ary hearing' ll iS d0Se,y connected *ithPS andard 2.12 which addresses the role of counsel in the pretrial stateof acustody or visitation case. TTiis Standard applies to als rua-10ns where evidence is presented to afact-finder to persuade the
fact-finder to decide acontroversy between the parties T^Standard sets out anon-partisan role of counsel for an impaired .
a. Counsel should use all appropriate procedures, includingcross-examination and presentation of witnesses, to adduce facts which the decision-maker should consider andwhich otherwise would not be adduced.
Comment
Counsel should not routinely cross-examine witnesses calledby other parties nor should counsel routinely present witnessesRather counsel should consider asking questions of7Scalled by another party only if counsel believes there are relevanfacts that have not already been elicited. Counsel can therebvserve as an important check against the danger that relevant information will be hidden from the court's attention. Howevercounsel is not a partisan seeking to elicit facts in order to persuade the court to reach aparticular outcome. Trie purpose ofcounse s cross-examination of presenting evidence is simply toplace the court in the best possible position to decide the case onthe basis of the child's best interests.
LA
i
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ansas
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l§40-4-2
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ie1994
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wMe
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Stat
.Ann
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1*UV
^
Vb/
.i3
,S
um
mer
1995
Rep
rese
nti
ng
un
ua
ren
how
muc
hwe
ight
togi
veth
ech
ildre
n's
pref
eren
ces,
base
don
such
facto
rsas
age,
mat
urity
,and
the
appe
aran
ceof
undu
epa
rent
alin
fluen
ce.
How
ever
,-un
der
curr
ent
subs
tant
ive
law,
impa
ired
child
ren
have
thesa
merig
htas
alloth
erch
ildre
nto
make
thei
rvi
ews
know
nto
the
judg
e.
c.A
tthe
conc
lusio
nof
atri
alor
hear
ing,
coun
self
oran
impa
ired
child
shall
notm
akea
closin
gar
gume
ntor
subm
ita
mem
oran
dum
toth
eco
urt.
Co
mm
en
t
Stan
dard
2.7pr
ohib
itsco
unse
lfor
anim
paire
dch
ildfro
mad
voca
ting
orre
comm
endi
nga
parti
cular
resu
lt.U
nder
thes
eSt
anda
rds,
coun
sel's
role
attri
alis
tom
onito
rth
ein
form
atio
nbe
ingma
deav
ailab
leto
theco
urts
otha
tcou
nsel
issa
tisfie
dtha
tth
eco
urth
ashe
ard
allr
elev
anti
nfor
mat
ion
that
coun
selr
easo
nab
lybe
lieve
sthe
cour
tsho
uldkn
ow.
Once
thatr
oleha
sbe
enfu
lfille
d,co
unse
lfor
anim
paire
dch
ildsh
ould
notb
efu
rther
invo
lved
inth
etri
alph
ase
ofth
epr
ocee
ding
and
shal
lno
tco
mm
en
to
nth
eev
iden
ce.
3.St
anda
rds
Rel
atin
gto
Gua
rdia
nsad
Lite
mTh
efol
lowing
Stand
ards
apply
when
the
guar
dian
adlit
emis
theon
lyre
pres
enta
tive
forth
ech
ild.
Thes
eSta
ndar
dsar
eina
ppli
cable
when
thegu
ardian
adlite
mis
separ
ately
repr
esen
tedby
coun
sel.
Inth
eev
enta
guar
dian
isso
repr
esen
ted,t
hegu
ardi
anis
the
clie
ntan
dco
unse
lis
oblig
edby
ordi
nary
rules
ofpr
ofes
-
York
(Jone
sv.P
ayne
,493
N.Y.
S.2d
650(
N.Y.
App.
Div.
1985
));Ly
onsv
.Lyo
ns.
490
NY
S2d
871
(N.Y
.App
.Div.
1985
));No
rthCa
rolin
a(H
inkle
v.Hi
nkle,
146
SE2
d73
(N.C
.196
6);Ca
mpbe
llv.
Camp
bell,
304
S.E.2d
262,
revie
wde
nied
307
S.E.2d
362
(N.C
.198
3);In
reCu
stody
ofPe
al,29
0S.E
.2d66
4(N
.C.
1982
)VNo
rthDa
kota
(Nov
akv.
Nova
k,44
1N.
W.2d
656
(N.D
.19
89));
Ohio
(Ohi
oRe
v.Co
deAn
n.§3
109.0
4(B)
(1)
(Bald
win
Supp
.19
92));
Okla
homa
(Okl
aSt
at.t
it.10
,§21
.1(C)
(Sup
p.19
96));
Penn
sylva
nia(A
ltus-B
aum
hor
v.Ba
umho
r,59
5A.
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47(P
a.Su
per.
Ct.
1991
));Rh
ode
Islan
d(K
enne
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Hick
ey,4
86A.
2d10
79(R
.1.19
85));
South
Caro
lina
(Smi
thv.
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,198
S.E.2d
271
(SC.
1973
));So
uthDa
kota
(Jasp
erv.
Jasp
er.35
1N.
W.2d
114
(S.D
.198
4));
Tenn
esse
e(H
arris
v.Ha
rris,
832
S.W\2d
352(
Tenn
.Ct.
App.
1992
),ap
peal
denie
d(M
ay4,1
992)
);Te
xas(
Benn
ettv.
North
cutt.
544
S.W.2d
703
(Tx.
Ct.A
pp.
1976
));W
yomi
ng(D
ougla
sv.
Sheff
ner,
331
P.2d
840
(Wyo
.195
8);Cu
rless
v.C
urle
ss,7
08P.
2d42
6(W
yo.
1985
)).
too
)urnal of the American Academy of Matrimonial Lawyers
sional conduct to represent an unimpaired client (the guardian).These Standards are applicable to all guardian ad litem appointments when the guardian is not separately represented, whetheror not the guardian is an attorney.48 However, when attorneysassigned as a guardian ad litem intend to represent a child ascounsel, Standards 2.1 through 2.13 are controlling under thesestandards.
3.1 A guardian ad litem who is also an attorney should not combine the roles of counsel and guardian except in accordancewith the provisions of Standards 2.1 through 2.13.
Comment
This Standard rejects the hybrid arrangement by which attorneys who are appointed as guardians ad litem in effect retainthemselves as counsel for the guardian and, in their role as"counsel," take their instructions from the "guardian." Such anarrangement is inconsistent with these Standards. It is inconsistent because the assigned adult, wearing the title "guardian,"would be permitted to make decisions on behalf of the child (inviolation of Standard 3.2) and would then be able to engagecounsel who would effect the goals sought by the guardian.
Under this Standard, when an attorney assigned as a guardian for a child acts as counsel, the provisions in Standard 2 arecontrolling. When acting as a guardian, whether or not a member of the bar, the provisions in Standard 3 are controlling.
4» When attorneys are assigned as guardians ad litem, they are not performing a role as an attorney. As a result, they are not bound by the ethicalrules constraining the performance ofattorneys as attorneys. Inaddition, whenattorneys are performing guardian ad litem functions, they may not be coveredby their ordinary malpractice insurance policy. As these Standards further develop, in many jurisdictions, guardians may be called as witnesses in theproceeding.
Vol. 13, Summer 1995 Representing Children
3.2 The guardian ad litem shall not make a recommendation onthe outcome of the proceeding or on contested issues duringthe litigation.
Comment
Commonly, guardians ad litem are appointed for the purpose of making a recommendation concerning the best interestsof the child. This Standard rejects the two implicit assumptionsunderlying that traditional purpose. First, that there are adultswith special abilities to determine a child's best interests and thatwhen such adults are assigned to find them they will succeed.Second, that children are better off when an adult — other thanthe judge — whom they do not know is assigned the task of determining their best interests and seeking to effect a result consistent with the adult's perception of them.
Guardians ad litem can be useful in these proceedings butthey should not be encouraged to permit their own ideas aboutchild rearing or children's best interests to make a difference inhow the case is decided. To avoid this, guardians should shifttheir focus from what is the best outcome for the child to what isthe best process by which the case should be decided.
Standard 2.7 prohibits lawyers in the role of counsel fromadvocating a position based on the lawyer's personal beliefs as tothe child's best interests. This prohibition is not based on anyprofessional rules of attorney behavior; to the contrary, as theCommentary to Standard 2.7 discusses, those rules actually appear to permit counsel, acting as "de facto" guardian, to advocatesuch positions. Rather, the prohibition is based on. the sameprinciples that lead to this Standard.
This prohibition avoids a common pitfall in these proceedings when guardians are permitted to take sides: cases often result in a form of double teaming with the guardian and attorneyfor one of the parties joining in concert to thwart the interests ofthe other party. It also avoids the serious danger of abdication ofjudicial responsibility. By prohibiting the guardian from advocating an outcome, the democratic process by which duly electedor appointed judges become the true arbiters of controversiesbrought to courts is reaffirmed.
These Standards reject empowering adults — whether theyare labeled counselor, guardians ad litem, or anything else — to
30Jo
urna
loft
heAm
erica
nAc
adem
yof
Matr
imon
ialLa
wyer
s
decid
ewh
atou
tcom
eis
best
forth
ech
ildre
nth
eyar
ere
pres
ent
ingba
sedon
their
own
value
s,be
liefs
and
ideas
.If
anyo
neis
ever
allow
edto
state
such
anop
inio
n,it
shou
ldon
lybe
anex
pert
witn
ess
subj
ectt
oful
lcro
ss-e
xam
inat
ion.
Anou
trigh
tpro
hibitio
naga
instg
uardi
ansr
ecom
mend
ingan
outco
meca
nbe
stbe
expl
aine
dby
placin
gall
case
sint
otw
oca
tego
ries:
easy
and
hard
case
s.In
thefirs
tcate
gory,
itis
clear
what
outco
meis
best
forch
ildre
nIn
easy
cases
,itm
aybe
assu
med
thatv
irtua
llyall
guar
dian
swou
ldad
voca
teth
esa
meou
tcom
e.In
thes
eca
sest
heris
kof
arbit
rary
beha
viori
sati
tslow
estw
hen
guar
dians
area
ppoin
tedSin
cethe
princ
ipalc
once
rnin
these
Stand
ards
isthe
avoid
ance
ofar
bitra
rybe
havio
r,it
would
appe
artha
tper
mittin
ggu
ardia
nsto
advo
cate
the
resu
ltth
eywa
ntin
easy
case
sisc
onsis
tentw
ithth
ispr
inci
ple.
Howe
ver,
two
prob
lems
rema
in.Fi
rst,i
tis
notp
ossib
leto
deve
lopsta
ndar
dsfor
deter
minin
gwh
ichare
theea
syca
ses.
Allow
inggu
ardia
nsto
decid
ewh
atre
sult
they
want
forthe
child
when
ever
the
guar
dian
belie
ves
the
case
tobe
easy
isan
open
invita
tion
togu
ardia
nsto
cons
train
their
own
freed
omon
lywh
enc*
they
choo
seto
doso
.W
ithou
tmea
ningfu
lbou
ndar
ies,i
twou
ldi^>
notb
elon
gbe
fore
guar
dians
were
makin
gth
ese
decis
ions
even
^in
the
hard
erca
ses.
Seco
nd,w
hen
case
sar
eob
vious
lyea
sy,a
ques
tion
natur
ally
arise
s:wh
yis
itso
impo
rtant
thatt
here
bea
guard
ianto
seek
theob
vious
lyco
rrect
result
?In
easy
cases
,the
need
forgu
ardian
sisa
tits
lowest
since
theco
urta
lmos
talw
ays
will
find
the"c
orre
ct"re
sult
onits
own.
Inde
ed,
pres
umab
lygu
ardia
nswi
llra
rely
beap
point
edin
such
cases
.In
these
cond
categ
ory,
byde
finiti
on,d
ecidi
ngwh
atis
best
forthe
child
isdif
ficult
.Pa
rado
xicall
y,alt
houg
hit
would
appe
artha
tchil
dren
parti
cular
lyde
serv
ead
voca
tesin
diffic
ultca
sespr
e-cis
elvto
ensu
reth
atth
e"rig
ht"
outco
mei
srea
ched
,the
sear
ethe
case
sin
which
the
risk
ofag
uard
ian's
arbit
rary
beha
viori
sgre
ates
t-in
-thes
eca
ses,
diffe
rent
guar
dian
sar
em
ostl
ikel
yto
reco
mm
end
diffe
rent
outco
mes
.M
oreo
ver,
the
dang
eris
com
poun
ded.
Noto
nlyis
itlik
elytha
tdiffe
rent
guar
dians
will
advo
cate
differ
entr
esul
tsin
close
case
s,bu
tit
isto
beex
pect
edth
atin
close
cases
judge
swi
llbe
grate
fulto
have
the
opini
onof
thech
ilds
guard
ianto
help
decid
ethe
case.
Itis
there
fore
quite
possi
bletha
tthe
decid
ing
factor
inth
eco
urt's
decis
ion
will
beth
egu
ard-
Vol
.1
3,
Su
mm
er1W
Dn
ep
reseru
trig
x^
nu
uic
u
ian's
advo
cacy
.Th
isis
inco
nsist
ent
with
the
rule
ofla
w.Fo
rth
ese
reas
ons,
thes
eSt
anda
rds
proh
ibit
repr
esen
tativ
esfro
mpr
ovid
ing
their
opin
ion
orfro
mse
ekin
gto
obta
ina
parti
cula
ro
utc
om
e.
3.3W
hene
ver
poss
ible,
thegu
ardia
nad
litem
shou
ldad
vise
thech
ildof
thegu
ardia
n'sr
olean
din
form
thech
ildof
allsig
nifi
cant
deve
lopm
ents
inth
eca
se.
Whe
nco
mm
unica
ting
with
the
child
,th
egu
ardi
ansh
ould
use
term
san
dco
ncep
tsco
mpr
ehen
sible
toa
child
ofcli
ent's
age
and
intel
lect.
Co
mm
en
t
This
Stan
dard
para
llels
the
expe
ctat
ions
ofco
unse
lre
pre
sent
ing
anim
paire
dch
ild.
The
Comm
enta
ryto
Stan
dard
2.8is
appli
cable
tothi
sStan
dard
exce
ptfor
thedis
cussi
onof
theeth
ica
lrol
esco
ncer
ning
the
cond
ucto
fcou
nsel
.Am
ong
the
impo
rta
ntdi
ffere
nces
betw
een
atto
rney
-clie
ntan
dgu
ardi
an-c
hild
conv
ersa
tions
isth
atth
ela
tter
are
notp
rote
cted
byth
eat
torn
ey-
clie
ntpr
ivil
ege.
3.4Th
egu
ardia
nad
litem
shou
ldbe
notif
iedto
appe
arat
allco
urta
ppea
ranc
esan
dco
nfer
ence
swith
thej
udge
and
shou
ldap
pear
unle
ssex
cuse
dby
the
cour
t.
Co
mm
en
t
Once
agu
ardia
nad
litem
isap
poin
ted,t
hegu
ardia
nsh
ould
beno
tifie
dof
allco
urt
appe
aran
ces
and,
unle
ssex
cuse
dby
the
cour
t,th
egu
ardia
nsh
ould
beex
pecte
dto
appe
arat
them
.Th
isSt
anda
rddo
esno
texp
and
the
purp
ose
ofth
egu
ardi
anap
poin
tm
enta
ndwo
uld
notr
equi
reno
tice
toth
egu
ardi
anor
guar
dian
'sin
volv
emen
tin
finan
cial
mat
ters
that
are
nota
part
ofth
ecu
sto
dyor
visita
tion
issue
sfor
which
the
guar
dian
was
appo
inted
.T
heSt
anda
rdis
not
mea
ntto
take
upth
egu
ardi
an's,
the
parti
es',
orth
eco
urt's
time
unne
cess
arily
.It
ison
lym
eant
tore
min
dal
linv
olve
dth
aton
cea
cour
ttak
esth
eex
trao
rdin
ary
step
ofap
poin
ting
agu
ardi
anfor
ach
ild,
the
guar
dian
shou
ldro
utin
elybe
inclu
ded
inall
notif
icatio
nof
cour
tpr
ocee
ding
s,an
da
spec
ific
decis
ionre
gard
ingthe
nece
ssity
ofth
egu
ardi
an's
invo
lvem
ent
shou
ldbe
mad
e.B
efor
eth
epa
rties
orth
egu
ardi
an
32 il of the American Academy of Matrimonial Lawyers
may assume the guardian's presence is unnecessary, this Standard requires the court to excuse the guardian.
3.5 The guardian ad litem should take appropriate measures toprotect the child from harm that may be incurred as a resultof the litigation by striving to expedite the proceedings andencouraging settlement in order to reduce trauma that can becaused by the litigation.
Comment
This Standard parallels the obligations of counsel representing an unimpaired or an impaired child. The Commentary toStandard 2.10 is fully applicable to this Standard.
3.6 As a general rule, the guardian ad litem should encouragesettlementand should not undermine settlementefforts by theparties. In exceptional cases, where the guardian reasonablybelieves that the court would not approve the settlement if itwere aware of certain facts, the guardian should bring thosefacts to the court's attention.
Comment
The Commentary to Standard 2.12 is applicable to thisStandard.
3.7 During the pretrial stage of a case, the guardian ad litemshould use all appropriate procedures to develop facts whichthe decisionmaker should consider in deciding the case andwhich otherwise would not be brought to the decisionmaker'sattention.
Comment
This Standard, like Standard 2.12, instructs the child's representative to be an investigator who attempts to place the judge inthe best position to decide the case on the basis of the child's bestinterests. Although the guardian will not possess most of thetools available to counsel to develop the facts, the guardianshould ascertain whether relevant facts about the case will be
brought to the court's attention. When the guardian concludesthat additional relevant facts exist, the guardian should strive to
fol 13, Summer 1995 Representing Children 33
supplement the information that the other parties or the courthave developed.
3.8 At atrial or hearing, the primary function of the guardian adlitem is to make the decisionmaker aware of all facts whichthe decisionmaker should consider.
Comment
These Standards are written so that the guardian's role canbe performed by attorneys, non-attorneys, and Court AssignedSpecial Advocates (CASA). Indeed, courts Should consider using professionals from disciplines other than iaw as guardians «>Since guardians will not necessarily be members of the bar andthus will not be qualified to examine witnesses during trial Standard 2.13(a) was not carried forward to the guardian's roleUnder this Standard, guardians may participate in a proceedingto the extent currently, allowed by law in the particularjurisdiction.
a. // the guardian offers evidence or submits a report, theguardian should be duly sworn as a witness and be subject to cross-examination.
Comment
Consistent with current practice in many jurisdictions it ispermissible under this Standard for the guardian to offer evidence to the court based on the guardian's own investigation intothe case. However, when the guardian's submission is based onhis or her independent fact-gathering, the guardian should betreated as all other persons in possession of relevant informationand required to testify under oath so that the limitations of theinvestigation, ifany, can be brought to the court's attention Asdiscussed in the Commentary to Standard 2.13(b), even ayoung
« "While many lawyers may, with training and experience, becomeintelligent consumers of psychological information and devices theyusually will not be expert in diagnosis and evaluation. Accordingly itwould not seem irresponsible to suggest that a professional trained'inpsychology, psychiatry, social psychology or social welfare be assignedthe iniual responsibility for protecting children under these circumstances." Juvenile Justice Standards, supra note 27, at Standard2.3(b).
1
•
L.J
34 Journal of the American Academy of Matrimonial Lawyers
child has the right to have his or her views made known to thecourt. The guardian should ensure that the court is aware of thechild's preferences, at least where the child has requested thatthe guardian so inform the court.
b. At the conclusion ofatrial or hearing, the guardian shallnot make closing argument or submit a memorandum tothe court.
CommentThe Commentary to Standard 2.13(c) is applicable to this
standard.
O (0-a -a
2. 3
P> w*
-t 3
>OP>
6-3
•<
o
J
Vol. 13, Summer 1995 Reporter's Perspective 35
The Making of Standards forRepresenting Children in Custody andVisitation Proceedings: TheReporter's Perspective
byMartin Guggenheim!
I. Introduction
As the Reporter to the American Academy of MatrimonialLawyers (the Academy) for Representing Children: Standardsfor Attorneys and Guardians ad Litem in Custody or VisitationProceedings,1 I was asked to write this brief article introducingthe Standards. The principal functions of this article are to describe the process by which the Academy developed the Standards, to highlight the principles upon which the Standards arebased, and to discuss several of the most important features ofthe Standards.
II. Creation of the Committee on SpecialConcerns of Children
In the family law context, the issues a lawyer confronts —and the interpersonal contexts in which those issues are set —present unique difficulties. Although litigation almost invariablyinvolves a dispute between parties, family law cases have a particular poignancy (and often an enhanced level of intensity) because the parties once aspired to a lifelong commitment tosomeone now designated as an "adversary." Moreover, in thesecases the parties often will continue to have a relationship after
t Professor of Clinical Law; Director, Clinical and Advocacy Programs,New York University School of Law. I would like to thank my colleagues,Randy Hertz and Madeleine Kurtz, for reviewing an earlier draft of this articleand making valuable comments.
* Representing Children: Standards for Attorneys andGuardians ad Litem in Custody or Visitation Proceedings (AmericanAcademy of Matrimonial Lawyers 1994) [hereinafter A.A.At.L. Standards].
36 Jon... p/ the American Academy of Matrimonial Lawyers
the litigation is complete. Unfortunately, they are unable to resolve their differences without resort to the legal system and lawyers as intermediaries. Compounding this, tjiese matterscommonly involve disputes concerning the custody or care ofchildren.2 These qualities only begin to suggest the complexitiesof this area of practice. These unique features of the practicedirectly affect the decisions and behavior of family lawpractitioners.
In 1991, the Academy produced the Bounds of Advocacy,3 acomprehensive set of principles for lawyers in family law cases.The explicit purpose of that publication was to establish a set ofoperating rules for lawyers' conduct in the area of family law.Traditional rules focus on the minimum standards of conduct, delineating acts that lawyers must perform to avoid disciplinarysanctions. The Academy recognized that lawyers may engage inconduct that is inappropriate even if it is not actionable. TheAcademy therefore set out to "provide guidance for attorneyswho wish to practice at an ethical and professional level wellabove the duty of care defined for purposes of either professionaldiscipline or malpractice liability."4
Upon completion of. that project, the Academy turned its attention to a second effort. In 1992, Arthur Balbirer, then President of the Academy, created the Committee on SpecialConcerns of Children's Committee (hereafter simply "the Committee") and asked Meredith Cohen to be its chair. The Academy left to the Committee the determination of the particularissues it would address and the order in which it would addressthem. At its first meeting, the Committee chose to develop standards for lawyers and guardians ad litem who represent childrenin matrimonial proceedings. This decision was reached for tworeasons. First, most members had noticed an increase in thenumber of cases in which children are individually represented
2 See Bill Miller. Divorce's Hard Lessons: Court Ordered Classes Focuson the Children, Wash. Post, Nov. 21, 1994, at Al ("About 60 percent of divorces involve children. . ."). In approximately 90 percent of these cases, custody is not litigated. Alice Sternbach, Career v. Children: Women Face DifficultChoice. Baltimore Sun, Mar. 13, 1995, at ID.
3 Bounds of Advocacy (American Academy of Matrimonial Lawyers1991). reprinted in 9 J. Am. Acad. Matrim. Law. 1 (1992).
4 Robert H. Aronson, Introduction: The Bounds of Advocacy, 9 J. Am.Acad. Matrim. Law. 41 (1992).
H3, Summer 1995 Reporter's Perspective 37
by counsel. Second, the Committee members perceived that theconduct of the lawyers for these children varied widely becausethere were no standards or other sources of meaningful guidancefor representation of this type.
Employing the practice used to develop the Bounds of Advocacy, the Committee secured the services of a law professor toserve as Reporter in the drafting of the standards.* In January1993, I became Reporter, to the Committee. Over the next twoyears, the Committee met a total of eight times.
HI. The Committee's MethodologyThe Committee began its deliberations by making the
broadest inquiry possible. It carefully avoided preconceptions,even including the question whether children should have legalrepresentation at all. By explicitly making this a topic ofinquiry,the Committee was able to approach the subject in a logicallycoherent way. Had the Committee regarded the first issue to address as what lawyers should do when assigned to represent children, it would have addressed an issue that cannot fully beanswered without inquiring into other, more basic, questions.One cannot say what a lawyer representing a child should dowithout knowing why the child was given a lawyer in the firstplace.
Although this approach is logically coherent, the Committeerecognized that the approach may be in tension with the alreadyexisting practice incertain jurisdictions. Some jurisdictions invariably or routinely appoint counsel for children in particulartypes of family law cases or in particular circumstances.6 Thus,the Committee had to decide at the beginning of its inquirywhether it should simply accept existing practices without questioning their prudence or whether it should develop optimumstandards even if they conflict with actual practice in some juris-
5 Professor Robert Harris Aronson of the University of WashingtonSchool of Law was the Reporter for the Bounds of Advocacy.
6 Oregon, for example, requires the appointment of counsel if "one ormore of the children" so request. (Ore. Rev. Stat. §107.425(3) (1994)); Vermont requires the appointment of counsel whenever a child is called as a witness in acustody, visitation orchild support proceeding. (Vt. Stat. Ann. tit. 15,§594(b) (1993)); Wisconsin requires counsel for children in all contested custody proceedings. (Wis. Stat. §767.045(1) (1995)).
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1.Pr
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vo
l.u
,su
mm
er
iyyj
rep
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rs
rersp
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ve
jy
Whe
nth
eC
omm
itte
etu
rned
toth
esu
bjec
tof
repr
esen
ting
chil
dren
,it
quic
kly
cam
eto
appr
ecia
teth
atan
ydi
scus
sion
con
cern
ing
"chi
ldre
n"is
sim
ply
too
broa
dun
less
itis
sub-
divi
ded.
So
me
chil
dren
are
mat
ure
and
inte
llig
ent
enou
ghto
ma
kede
cisi
ons
and
toex
pres
sth
eir
opin
ions
wit
ha
reas
onab
lede
gree
ofcl
arit
y.O
ther
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dren
,ho
wev
er,
are
too
youn
gev
ento
have
opin
ions
orto
expr
ess
them
selv
es.
By
disc
ussi
ngch
ildre
nin
term
s,of
thes
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stin
ctio
ns,
itw
asea
sier
for
the
Com
mit
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tore
cogn
ize
the
com
plex
itie
sof
the
topi
c.If
itm
akes
sens
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prov
ide
asi
xtee
n-ye
ar-o
ldw
ith
ala
wye
r,do
esit
nece
ssar
ilyfo
llow
that
asi
xtee
n-da
y-ol
dch
ildal
sosh
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rece
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ala
wye
r?A
nd,
ifso
,sho
uld
the
law
yers
inth
ese
two
very
diff
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tsi
tuat
ions
follo
wth
esa
me
mod
elfo
rre
pre
sent
ing
a"c
hild
"?T
heC
omm
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eim
med
iate
lyap
prec
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dth
atth
ech
rono
logi
cal
and
deve
lopm
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ldis
tinct
ions
betw
een
"chi
ldr
en"
dem
and
care
ful
cali
brat
ion
ofth
eco
ncep
tion
and
duti
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fa
lega
lrep
rese
ntat
ive
for
ach
ild.1
0T
he
Com
mit
tee
real
ized
,th
eref
ore,
that
its
task
wou
ldbe
sign
ifica
ntly
diff
eren
tfr
omth
ew
ork
that
wen
tin
tode
velo
ping
the
Bou
nds
ofA
dvoc
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Whe
nde
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ping
stan
dard
sfo
rre
pre
sent
ing
adul
ts,t
here
isno
com
para
ble
need
toin
vest
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eth
eun
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assu
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ofth
ero
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coun
selo
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repr
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the
Mod
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ofP
rofe
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Con
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bide
bya
clie
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deci
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sco
ncer
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the
obje
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fre
pres
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tion.
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Thi
sce
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emis
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nnot
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too
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view
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ber
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may
lack
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mat
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yor
com
pete
nce
toha
veth
eir
view
sdi
ctat
eth
eir
law
yers
'co
ndu
ct).
For
this
reas
on,
the
Com
mit
tee
chos
eto
expl
ore
terr
itor
y
10Se
e,e.
g.,A
rnol
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duca
tiona
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Tran
sitio
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evisi
ting
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S-to
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8(1
994)
;C
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uest
ion
in.C
ogni
tive
Dev
elop
men
tal
Theo
ry,
1B
ehav
.&
Bra
inSc
i.17
3(1
978)
;B
arba
raR
agof
fet
al.,
Age
ofA
ssig
nmen
tof
Rol
esan
dR
espo
nsib
ilitie
sto
Chi
ldre
n,18
Hum
anD
ev.
353
(197
5).
11M
od
el
Ru
les
of
Pro
fess
ion
al
Co
nd
uct
Rul
e1.
2(a)
(199
4).
Law
yers
are
only
obli
ged
toab
ide
bycl
ient
'sin
stru
ctio
nsw
hen
thos
ein
stru
cUon
sa
rela
wfu
l.
40 Jc of the American Academy of Matrimonial Lawyers
ordinarily irrelevant when drafting standards of professional behavior. Before addressing how lawyers for children ought to behave, it studied a number of underlying issues that ultimatelywould bear upon the role these lawyers should perform.
Much of the Committee's first meeting was devoted to cataloguing the benefits and drawbacks of providing children withrepresentation. The Committee identified a number of powerfuljustifications for appointing representatives for children in custody proceedings.12 First, representatives for children may beable to perform a number of tasks that are beneficial for children. These include: protecting children from the scars of battlethat sometimes are inflicted during acrimonious litigation; lessening conflict by encouraging parents to focus on the needs andbest interests of the child above all other considerations; facilitating settlement; uncovering material information that both parents may be disinclined to disclose; even-handedly explaining theproceedings to the childclient and thus ensuring that the child ismade to feel as good as possible about the case; and providingthe child with an opportunity to be heard. Without their ownrepresentatives, children commonly are heard, if at all, throughone or both of their parents. Under such circumstances, there is
• a risk that the children will be silenced or manipulated.13 There=* was a time in American legal history when married women were
"heard" only through their husbands; no one today would dispute that under such a regime, women did not really have anyvoice at all. Providing children with a representative may ensurethat the children's own voices will actually be heard.
In addition, appointment of representatives for children maymaximize the probability that cases will be decided based onwhat is best for the child. Of course, courts already are expectedto decide cases-on that basis. However, courts may need assistance to help them discharge their parens patriae function becausethey often are limited in their capacity to acquire or become familiar with essential facts. Finally, if only as a symbolic measure,
12 The term "representatives" is meant to embrace both lawyers andguardians ad litem. In this article, this term and "lawyers" are used interchangeably. The term "guardian ad litem" is used when addressing matters thatapply only to guardians and not to lawyers.
!3 See e.g., Elizabeth S. Scott et a)., Children's Preference in AdjudicatedCustody Decisions, 22 Ga. L Rev. 1035 (1988).
yJ, Summer.J995 Reporter's Perspective 41
appointing representatives for children emphasizes the child-focused purpose of these proceedings. Providing an independentrepresentative for children sends a powerful message that children are independent persons, not extensions of their parents,and that they have independent needs, wants, and rights.
But the Committee also identified some reasons to have serious reservations about assignments of counsel for children.First, it is not clear that giving children a voice is always a goodthing. Custody proceedings are emotionally very difficult, ofteninvolving amixture of feelings of rejection, guiltiPain, and anger.Placing children at the center, of the dispute by informing themthat their preference as. to custody is the primary, or even a central, factor indeciding custody may disserve children's best interests by making them feel the need to choose —and therebyreject —one parent over the other.14 Protecting children frombeing forced to feel responsible for choosing where to live may,in the long run, best serve the interests ofmost children. In addition, when the child's preference will be accorded prominence bythe child's lawyer, there is a danger that the parents will be encouraged to attempt to influence the child to prefer one over theother. When this occurs, children become pawns of a differentorder. It rarely will serve children's best interests to have parentsactively trying to persuade children to tell their lawyers that theywant to live with one parent rather than the other.
After this broad inquiry, the Committee reviewed the rulesin every jurisdiction. In particular, this review included identifying the statutes and caselaw setting forth the circumstances underwhich a representative should be assigned for a child and the actions expected of that representative. In addition, for reasonsthat will be explained, this review included the statutes andcaselaw setting forth the weight to be given a child's preference'in a custody or visitation proceeding.15
14 See, e.g., Robert E. Emery, Marriage, Divorce and Children'sAdjustment 132-33 (1988) ("If being caught in the middle ofthe parents* conflict is one of the greatest sources of distress for children then soliciting theiropinion as towho is their preferred custodian is hardly asolution. The articulation of a preference can be tantamount to asking children to choose betweentheir parents.").
™ This undertaking resulted in an eighty-two page document which wasshared with the Committee. The document was prepared by Allison Armour amember of the 1995 N.Y.U. Law School graduating class.
to
42 Journal of the American Academy of Matrimonial Lawyers
After a second meeting which continued the wide-rangingdiscussion. I prepared a"working paper" that synthesized the issues the bommittee had addressed and laid out the choicesbefore the Committee. This paper included areview of the literature on the subject of representing children. At this point theCommittee felt it was important to expand its discussion and toinclude all Academy members in aconversation. To accomplishthis the Academy set aside the better part of an entire day at itsAnnual Meeting in Chicago in November 1993. At this programseveral Committee members addressed a plenary discussion ofthe seneral issues of representing children; thereafter, Committee members led small group discussions at which the entireAcademy was encouraged to comment on all potentially relevantfacets of representing children. Finally, Academy members wereencouraged to send their written comments to the Committee.n,e Committee received a large number of letters from Academy members as well as recent opinions or reports on the subjectof representing children.16
After the Annual Meeting, the Committee began the process of actually, drafting the Standards. By this point each Committee member felt reasonably well-versed with the broad issuesraised by the subject of representing children. Having postponedconsfder'ation o/what the'Standards should look like until thisbackground inquiry was completed, the Committee turned to thetask of drafting with the assurance that it had identified the relevant issues and surveyed the range of issues and views as much asit practically could.
The Standards went through a series of six drafts. Eachdraft was reviewed by the entire Committee and then revised toreflect the Committee members' concerns and suggestions, inaddition, the Committee twice presented adraft of the Standardsto the Executive Committee and made modifications in accordance with its reactions. Finally, the Standards were presented tothe Board of Governors at the Annual Meeting lh November1994, at which time the Board adopted them.
ifi One of the obvious benefits of working with a national organizationlike the Academy is that it is virtually impossible to miss a new. decision anywhere because members exist in every jurisdiction and so many were eager 10keep us abreast of recent trends.
Vol. 13, Summer 1995 Reporter's Perspective 43
IV. A Brief Comment on the Standards
Themselves
As already indicated, the Standards followed from certainprinciples developed by the Committee over the course of its deliberations. Three principles in particular are at the core of theStandards. First, and most basic, the Committee regarded it ascrucial that whatever standards were developed would providemeaningful guidance to professionals so that the things they doand the decisions they make will not be based on their own personal values or beliefs. The greatest challenge for the Committeewas to create a set of guidelines that establishes a uniform set ofrules of behavior applicable to everyone performing the samerole. This principle explains Standards 2.7 through 2.13 and 3.2through 3.8. In particular, this principle undergirds Standard 2.7,which prohibits a lawyer from advocating a position with regardto the outcome of the proceeding when representing a client whois unable to set'the goals of the representation, and Standard 3.2,which prohibits a guardian ad litem from recommending a particular result.
Second, the Committee felt it necessary to develop standards for attorney behavior in conformity with the Model Rulesof Professional Conduct regulating the behavior of lawyers already in existence. From this principle, the Committee adoptedthe distinction utilized by the Model Rules between"unimpaired" and "impaired" clients.17 Once this distinction wasdrawn, it became clear that a lawyer's role for unimpaired clientswas already firmly established by the Model Rules themselvesand needed only to be further elaborated as applied to childrenin divorce or custody proceedings.18
In developing standards for the impaired client, the Committee recognized that the Model Rules are considerably more
n See A.A.M.L Standards, supra note 1, §§ 2.3, 2.4.18 Both the Model Rules of Professional Conduct and the Model Code of
Professional Responsibility areunambiguous in setting forth the role of counselwhen representing a competent client. Rule 1.2(a) of the Model Rules requirethat lawyers representing unimpaired clients"abide by a client's decisions concerning the objectives of representation." Ethical Consideration 7-7 of theModel Code provides that "the authority to make decisions is exclusively thatof the client and, if made within the framework of the law, such decisions arebinding on his lawyer."
44Jo
.|)
ofth
eAm
erica
nAc
adem
yof
Mat
rimon
ialLa
wyer
s
vagu
ew
ithre
gard
tow
hat
ala
wye
rm
ayor
mus
tdo.
19A
sa
resu
lt,th
eC
omm
ittee
spen
tm
uch
mor
etim
edi
scus
sing
the
role
ofa
lawye
rrep
rese
ntin
gan
impa
ired
clie
ntth
anit
did
indi
scus
sing
the
unim
paire
dcl
ient
.U
ltim
atel
y,th
eC
omm
ittee
adop
ted
stan
dard
sth
atpr
ohib
itat
torn
eys
for
impa
ired
clie
nts
from
advo
cat
ingan
you
tcom
eev
enwh
enth
eM
odel
Rules
wou
ldpe
rmit
ala
wye
rto
reco
mm
end
apa
rticu
lar
resu
lt.20
The
Com
mitt
eeco
nsc
ious
lylim
ited
the
law
yer's
role
toa
grea
ter
degr
eeth
ancu
rren
tla
wan
dru
les
dem
and.
At
the
sam
etim
e,th
eSt
anda
rds
dono
tco
nflic
tw
ithth
eM
odel
Rul
es;
thos
eR
ules
perm
it—
bu
tdo
not
requ
ire—
attor
neys
repr
esen
ting
impa
ired
clien
tsto
act
asde
facto
guar
dian
san
dto
reco
mm
end
anou
tcom
ein
the
case.
21By
appl
ying
the
first
prin
ciple
ofac
hiev
ing
unifo
rmity
ofro
le,th
eSt
anda
rds
soug
htto
elim
inat
eth
epo
ssib
ility
that
ala
wye
r'sad
voca
cyw
ould
besh
aped
byth
ela
wye
r'spe
rson
alva
lues
orbe
liefs
.T
his
was
atta
inab
le,
inth
eC
omm
itte
e's
view
,on
lyby
proh
ibiti
ngat
torn
eys
for
impa
ired
clie
nts
from
advo
catin
gan
yo
utc
om
ein
aca
se.
Onc
est
anda
rds
for
impa
ired
clie
nts
wer
ede
velo
ped,
itfo
llo
wed
clear
lyth
atth
ero
leof
agu
ardi
anad
litem
(who
sebe
hav
ior,
byde
finiti
on,
isno
tco
nstra
ined
byth
eM
odel
Rule
sfo
rat
torn
eys
—ev
enw
hen
the
guar
dian
happ
ens
tobe
anat
torn
ey)
shou
ldpa
ralle
lthe
role
the
Stan
dard
sde
fined
forl
awye
rsfo
rim
paire
dcli
ents.
Acc
ordi
ngly
,the
Stan
dard
sals
opr
ohib
itgu
ardi
ans
adlit
emfro
mre
com
men
ding
anou
tcom
eto
the
cour
t.22
Her
eag
ain,
the
Stan
dard
follo
wed
logi
cally
from
the
goal
of
'9In
cont
rast
with
the
clar
ityof
role
whe
nre
pres
entin
ga
com
pete
ntcli
entp
rovid
edby
both
theM
odel
Rules
and
theM
odel
Code
,neit
hert
heM
odel
Rules
nor
the
Mod
elCo
depr
ovid
esan
ym
eani
ngfu
lgui
danc
eto
coun
selw
hore
pres
ents
anin
com
peten
tor
impa
ired
clien
t.Th
eCo
mm
ent
toM
odel
Rule
1.14
unhe
lpfu
llyin
form
slaw
yers
that
when
repr
esen
ting
acli
entw
itha
disa
bil
ity,"
the
lawye
rofte
nm
usta
ctas
defa
ctogu
ardi
an,"
buti
ssile
nton
what
that
mea
nsor
wha
tpre
cise
steps
ade
facto
guar
dian
shou
ldtak
e.Si
mila
rly,E
thic
alC
onsi
dera
tion
7-11
ofth
eM
odel
Cod
eof
Prof
essi
onal
Res
pons
ibili
tym
erel
ysta
les
that
"the
resp
onsib
ilitie
sof
alaw
yer
may
vary
acco
rdin
gto
the
inte
llige
nce,
expe
rienc
e,m
ental
cond
ition
orag
eof
acl
ient
."It,
too,
issil
ento
nju
stw
hat
this
mean
s.
2<>A
.A.M
.L.S
tand
ards
,sup
rano
te1,
§2.
7.2i
See
Mo
del
Ru
les
of
Pro
fess
ion
al
Co
nd
uct
Rul
e1.
14(1
994)
.22
A.A
.M.L
.St
anda
rds,
supr
ano
te1,
§3.
2.
y.13
,Sum
mer
1995
Repo
rter's
Pers
pecti
ve4
5
elim
inat
ing
arbi
trar
ines
san
des
tabl
ishi
nga
unifo
rmse
tof
stan
dard
san
dpr
oced
ures
for
repr
esen
ting
child
ren.
The
thir
dpr
inci
ple
was
that
the
Com
mitt
eew
ould
not
atte
mpt
totin
ker
with
the
subs
tant
ive
rule
sby
whi
chcu
stody
orvi
sitat
ion
case
sar
eto
bede
cide
d.Th
eC
omm
ittee
rega
rded
itsch
arge
asin
volv
ing
only
the
proc
edur
alm
atte
rof
whe
ther
chil
dren
shou
ldbe
repr
esen
ted,
nott
hecr
iteria
judg
essh
ould
appl
yin
deci
ding
thes
eca
ses.
Thus
,fo
rex
ampl
e,th
eC
omm
ittee
did
note
ndor
se,
orev
enin
depe
nden
tlyre
view
the
mer
itsof
,su
bsta
ntiv
eru
lesth
atau
thor
ize
cour
tsto
deci
decu
stody
case
sby
cons
ider
ing
the
child
'spr
efer
ence
sas
mer
ely
one
fact
oram
ong
man
y.23
Inde
ed,o
neof
the
reas
ons
the
Com
mitt
eeop
ted
agai
nst
rout
ine
appo
intm
ento
flaw
yers
forc
hild
ren2
4is
that
such
apr
actic
esig
nific
antly
incr
ease
sth
epo
tent
ial
for
aco
urt's
acco
rdin
ggr
eate
rw
eigh
tto
ach
ild's
pref
eren
ces
(forc
eful
lyex
pres
sed
byth
ech
ild's
law
yer)
than
legi
slatio
nan
dca
sela
wcu
rrent
lype
rmit.
A.
The
Cen
tral
ityof
the
Prin
cipl
eof
Uni
form
ityof
Beh
avio
r
Surp
risi
ngly
few
juri
sdic
tions
prov
ide
any
guid
ance
atal
lre
gard
ing
ala
wye
r'sro
lein
cust
ody
disp
utes
.E
ven
thos
eth
atdo
atte
mpt
tode
fine
the
law
yer's
role
dono
tmea
ning
fully
cons
trai
nla
wye
rsin
the
perf
orm
ance
ofth
eir
role
.25
As
are
sult,
curr
ent
law
allo
wsla
wyer
sa
wide
rang
eof
latit
ude
indo
ing
what
they
«Se
eId
.§
2.13
(b)c
mt.
2*Se
eid
.§
1.1.
25O
nly
abou
ta
doze
nju
risdi
ctio
nspr
ovid
em
eani
ngfu
lgu
idan
ce.
Col
ora
dore
quire
sgu
ardi
ans
adlit
emto
pres
enta
llav
aila
ble
evid
ence
conc
erni
ngth
ech
ild's
best
inter
ests.
Inre
Mar
riage
ofBa
rnth
ouse
,765
P.2d
610,
612
(Col
o.Ct
.App
.198
8).c
ert,
deni
ed,4
90U.
S.10
21(1
989)
.Fl
orid
ase
tsfo
rtha
long
list
ofdu
tieso
fgua
rdian
sad
litem
,inc
ludi
ngin
vesti
gatin
g,in
tervie
wing
,peti
tioni
ngth
eco
urtt
oin
spec
tre
cord
s,re
ques
ting
the
cour
tto
orde
rm
edic
alex
amin
atio
ns,
assis
ting
the
cour
tin
obta
inin
gim
parti
alex
pert
exam
inat
ions
,m
akin
gre
com
men
datio
ns,f
iling
plea
ding
s,m
otio
ns,o
rpe
titio
ns,p
artic
ipat
ing
inde
posi
tions
and
hear
ings
,an
dco
mpe
lling
the
atte
ndan
ceof
witn
esse
s.F
la.
Sta
t.§
61.4
03(1
995)
.Lo
uisia
nare
quire
sla
wye
rsto
"int
ervi
ewth
ech
ild,
revi
ewal
lre
leva
ntre
cord
s,an
dco
nduc
tdi
scov
ery
asde
emed
nece
ssar
yto
asce
rtain
fact
s."L
a.R
ev.S
tat.
Ann
.§34
5(D
)(W
est
Supp
.19
95).
InM
aine
,th
edu
ties
ofth
egu
ardi
anad
litem
are
"to
eval
uate
the
parli
es,t
heir
child
ren,
and
any
othe
rapp
ropr
iate
indi
vidu
als
and
topr
ovid
ea
repo
rtan
dre
com
men
datio
nsto
the
Cour
tas
toan
appr
opria
tedi
spos
iu'on
ofth
epa
rent
alrig
hts
and
resp
onsib
iliti
esre
gard
ing"
the
child
.G
erbe
rv.P
eters
,584
A.2d
605,
606
(Me.
1990
).M
assa
chus
etts
requ
ires
guar
dian
sto
"rep
orti
hw
ritin
gto
the
cour
tthe
resu
ltsof
the
46Jo
urna
loft
heAm
erica
nAc
adem
yof
Mat
rimon
ial
Lawy
ers
invest
igatio
n."M
ass.
Gen.
Laws
Ann.
ch.2
15.§
56A
(West
1995
).Mi
ssour
iin
stru
cts
tha
t:Th
egu
ardia
nad
litem
shall
:(1)
Bethe
legal
repr
esen
tativ
eof
thech
ildat
the
hear
ing,a
ndma
yex
amin
e,cr
oss-e
xam
ine,
subp
oena
wit-
.ne
ssesa
ndof
fertes
timon
y;(2
)Prio
rto
the
hear
ing,c
ondu
ctall
nece
ssar
yinte
rview
swith
perso
nsha
vingc
ontac
twith
orkn
owled
geof
thech
ildin
orde
rto
asce
rtain
the
child
'swi
shes
,fee
lings
,atta
chm
ents
and
attit
udes
.If
appr
opria
te,the
child
shou
ldbe
inter
viewe
d;(3
)Re
ques
tthe
juven
ileoff
icert
oca
use
ape
tition
tobe
filed
inthe
juven
ilediv
isio
nof
the
circ
uitc
ourt
ifth
egu
ardi
anad
litem
belie
ves
the
child
alleg
edto
beab
used
orne
glecte
dis
inda
nger
.M
o.An
n.St
at.
§45
2.42
3(2)
(Ver
non
1994
).
New
Hamp
shire
autho
rizes
theco
urta
ppoin
ting
thegu
ardia
nto
"spe
cify
theco
ncer
nsto
bead
dres
sed
byth
egu
ardia
nad
litem
,an
dot
herw
iselim
itth
esco
peof
theap
point
ment.
"N.
H.Re
v.St
at.A
nn.§
458:1
7-a(l)
(1993
).Ne
wM
exic
oex
pect
sth
egu
ardi
anto
:ex
ercis
ehis
best
prof
essio
nalj
udgm
ento
nwh
atdi
spos
ition
woul
dfur
ther
the
best
inte
rests
ofth
ech
ild,h
iscl
ient
,and
atth
ehe
arin
gvi
gor
ously
advo
cate
thatp
ositi
onbe
fore
the
cour
t.[W
jhen
achil
dne
edsa
guar
dian
adlite
m,he
need
san
advo
cate
—so
meon
ewh
owi
llple
adhi
sca
use
asfo
rcefu
llyas
the
atto
rney
sfor
each
com
petin
gcu
stody
claim
antp
lead
theirs
.Th
eba
sicpr
emise
of.th
ead
versa
rysy
stem
isth
atth
ebe
stde
cisio
nwi
llbe
reac
hed
ifea
chin
tere
sted
pers
onha
shi
sui
case
pres
ented
byco
unsel
ofun
ques
tiona
blyun
divide
dloy
alty.
Col
lins
v.Ta
bet,
806
P.2d
40,5
0(N
.M.
1991
){q
uotin
gVe
azey
v.Ve
azey
,56
0P.
2d38
2(A
lask
a19
77)(
emph
asis
inor
igin
al)).
Sout
hCa
rolin
aco
nsid
ers
the
guar
dian
tobe
"are
pres
enta
tive
ofth
eco
urta
ppo
inted
toas
sisti
tin
prop
erly
prot
ectin
gth
ein
teres
tsof
anin
com
pete
ntpe
rso
n"
Shai
nwal
dv.
Shai
nwal
d,39
5S.E
.2d44
1,44
4(S
.C,
Cl.
App.
1990
).Vi
rgini
ains
tructs
coun
self
orac
hild
tore
pres
ent"
the
child
'sleg
itimate
inter
ests"
and
instru
ctsgu
ardia
nsto
"adv
isethe
cour
tofth
ewi
shes
ofthe
child
inan
ycase
where
thewi
shes
ofthe
child
confl
ictwi
ththe
opini
onof
thegu
ardia
nad
litem
asto
what
isin
the
child
'sin
tere
stan
dwe
lfare
."V
a.R
.8:6
.In
Wis
cons
in,gu
ardia
nsare
tode
cide
forthe
mselv
eswh
atis
inthe
child
'sbe
stin
teres
ts,bu
t,un
lessi
nstru
cted
byth
echil
dno
tto,
they
must
info
rmthe
cour
tofth
ech
ild's
wish
es.
Gua
rdia
nsar
eex
pect
edto
mak
ere
com
men
datio
nsan
dar
epe
rmi
tted
tocr
oss-e
xami
newi
tnesse
s.W
is.St
at.A
nn.§
767.0
45(4)
(Wes
t199
5).Ev
enwh
enco
urts
reco
gnize
thatt
hero
leof
coun
seli
ncu
stody
proc
eedi
ngs
has
notb
een
defin
ed,t
hey
have
failed
toad
dres
sth
eiss
ue.
See,
e.g.t
Knoc
kv.
Kno
ck,6
21A.
2d26
7,27
5,27
6(C
onn.
1993
):It
iscle
arth
atth
etri
alco
urta
ndco
unse
lfor
the
min
orch
ilddi
sagr
eed
nsto
thepr
oper
role
ofthe
attor
ney
fora
mino
rch
ildin
acu
stody
proc
eedin
gTh
eleg
islatu
reha
snot
yetd
eline
ated,
norh
asthi
sco
urty
etbe
enpr
esen
tedwi
ththe
oppo
rtuni
tyto
delin
eate,
theob
liga
tions
and
limita
tions
ofth
ero
leof
coun
sel
for
am
inor
child
.W
ere
cog
nize
that
repr
esen
ting
ach
ildcr
eates
prac
tical
prob
lems
foran
to
J
Vol
.13
,S
um
mer
1995
Rep
ort
er's
Per
spec
tive
4/
thin
kbe
ston
beha
lfof
thei
ryo
ung
clie
nts
incu
stod
ypr
ocee
ding
s.Th
us,t
hegr
eates
tcha
lleng
efac
ingthe
Comm
ittee
,and
,in
the
Com
mitt
ee's
view
,the
grea
test
cont
ribut
ion
itco
uld
mak
e,wa
sto
craf
trul
esof
cond
uct
that
redu
ceth
edi
scre
tion
avai
labl
eto
law
yers
repr
esen
ting
child
ren.
The
Com
mitt
eere
gard
edth
em
osts
erio
usth
reat
toth
eru
leof
lawpo
sed
byth
eas
signm
ento
flaw
yers
forch
ildre
nto
beth
ein
trodu
ctio
nof
anad
ult
who
isfre
eto
advo
cate
his
orhe
row
npr
eferre
dou
tcome
inthe
name
ofthe
child
'sbe
stint
eres
ts.Th
eda
nger
perc
eived
bythe
Comm
ittee
istha
tthis
,extr
ape
rson
will
mak
ea
diffe
renc
ein
the
outc
ome
ofth
epr
ocee
ding
with
outp
rovid
ingan
yassu
ranc
etha
tthe
outco
mewi
llbe
"bett
er"
than
ifno
repr
esen
tativ
eha
djoi
ned
theca
se.Th
isho
ldstru
ewh
ether
the
repr
esen
tative
isca
lled
"cou
nsel"
ora"
guar
dian."
The
Comm
itte
eco
nclu
ded
that
unle
ssla
wye
rsas
signe
dto
"rep
rese
nt"
youn
gch
ildre
nwe
regi
ven
spec
ific
task
sto
perfo
rmwh
ichdi
dno
tde
pend
onthe
lawye
rs'va
lueso
rper
sona
lbeli
efs,i
twou
ldbe
invit
ingar
bitra
ryro
lebe
havio
ron
thelaw
yers'
part
and
arbit
rary
outc
omes
even
insi
mila
rly
situ
ated
case
s.26
attor
ney
and
thatt
hisim
porta
ntiss
ue,a
tsom
epo
int,n
eeds
tobe
addr
esse
d..
..Be
caus
eco
unse
lhas
faile
dto
dem
onstr
ate
any
preju
dice
resu
lting
from
herd
iffer
ence
ofop
inion
with
thetri
alco
urt,
howe
ver,
this
case
isno
tan
appr
opria
teve
hicle
fora
disc
ussio
nof
the
role
ofco
unse
lfo
ra
min
orch
ild.
,26
inth
eir
artic
le,
Prac
tical
and
Theo
retic
alPr
oblem
sW
ithth
eA
AM
LSta
ndar
dsfo
rRe
prese
nting
"Imp
aired
"Ch
ildren
,13
J.Am
.Aca
d.M
atrim
.La
w57
(1995
),An
nM.
Hara
lambie
and
Debo
rah
Glas
ercr
iticize
theSta
nda
rds'p
rohib
ition
again
stall
owing
advo
cacy
ofan
outco
meby
theim
paire
dcli
ent's
lawye
r.Ho
weve
r,the
iran
alysis
ofthi
siss
ueis
very
limite
dan
dult
ima
tely
flawe
d.Fir
st,the
yas
serti
na
conc
lusor
yfas
hion
thatt
heSta
ndar
ds"c
onsti
tute
ara
dical
depa
rture
from
the
gene
rally
acce
pted
prac
tice
forch
ildr
en's
attor
neys
."Id.
at70
.Ev
enas
sumi
ngtha
tthi
sis
theca
se(w
hich
Hara
lambie
and
Glas
erdo
nots
how,
since
the
only
auth
ority
upon
which
they
relyi
sastu
dent
autho
red
lawrev
iewno
tefro
malm
osta
deca
deag
o),the
mere
factt
hata
certa
inpr
actic
eis
follow
eddo
esno
testa
blish
eithe
rthe
legal
oreth
icalp
ropr
ietyo
ftha
tpra
ctice
.Sec
ond,
they
attem
ptto
jusUf
yapr
actic
eof
lawye
rssu
bstitu
tingt
heir
ownj
udgm
entf
ortha
tofa
nimp
aired
clien
tbyd
eclar
ingtha
tatto
rney
sfor
adult
clien
tsin
matri
monia
lcas
esals
oinj
ectt
heir
own
"valu
es,b
iases
,and
preju
dices
"int
othe
proc
essby
mean
sof
coun
selin
gthe
ircli
ents.
Idat
80.
How
ever
,the
reU
agr
eat—
and
quite
obvio
us—
diffe
renc
ebe
twee
nad
ultc
lient
s,wh
oar
ealw
ays
free
tore
jectt
head
vice
give
nby
alaw
yeran
dav
eryyo
ung
child
clien
twho
will
have
novo
icein
thepr
ocee
dings
.Th
ewh
olepo
intof
theSta
ndar
dsis
tored
uce
toa
minim
umthe
inser
tion
of
48
Jou,
3oft
heAm
erica
nAc
adem
yof
Mat
rimon
ial
Lawy
ers
The
Com
mitt
eere
ache
dth
isco
nclu
sion
byca
refu
llyex
amin
ingan
ddis
cussi
ngthe
decis
ionm
akin
gpr
oces
ses
requ
ired
ofan
adul
tw
hois
auth
oriz
edto
reco
mm
end
anou
tcom
eto
the
cour
twh
enre
pres
entin
gay
oung
child
.It
cons
ider
ed,a
san
exam
ple,a
hypo
thetic
alca
sein
which
atria
ljud
ge,u
naide
dby
arep
rese
nta
tive
for
the
child
,wou
ldbe
incli
ned
toaw
ard
custo
dyto
the
pri
mary
care
taker
even
thoug
hthe
evide
nce
disclo
sed
that
thepri
mary
caret
aker
isan
occa
siona
luser
ofma
rijua
naan
dwi
llbe
enter
ingthe
jobm
arket
ona
full-
time
basis
once
thediv
orce
isfin
al.Th
eas
signe
dre
pres
entat
ive,
howe
ver,
belie
ves
that
chil
dren
shou
ldne
ver,
oralm
ost
neve
r,re
side
with
apa
rent
who
uses
illega
lsub
stanc
es,e
ven
onan
occa
siona
lbasi
s.As
ares
ult,
therep
resen
tative
takes
thepo
sition
early
inthe
litiga
tion
that
the
child
'sbe
stin
tere
stswi
llbe
serv
edby
awar
ding
custo
dyto
theot
her
pare
ntan
dvig
orou
slyad
voca
tespl
acem
entw
iththe
non-
prim
aryca
retak
er.It
wasu
nclea
rto
theCo
mm
ittee
how
itco
uld
even
besa
idth
atth
ebe
stin
tere
stsof
the
child
wer
ebe
ing
adva
nced
;all
that
was
clear
isth
atan
adul
t'spe
rcep
tion
ofth
ech
ild's
best
inte
rest
sw
asfo
rcef
ully
advo
cate
d.Th
eC
omm
ittee
was
also
troub
led
byth
epr
ospe
ctth
atth
eou
tcom
eof
the
case
coul
dbe
chan
ged
beca
use
ofth
ein
trodu
ctio
nof
therep
resen
tative
into
thepr
ocee
ding.
Ifthe
fo'rc
efulne
ssof
there
pres
entat
ive's
advo
cacy
would
caus
ethe
prim
ary
care
take
rto
settl
eth
eca
seon
term
sles
sfa
vora
ble
than
orig
inal
lyso
ught,
thiso
utcom
ewo
uldtak
ethe
decis
ionou
toft
hejud
ge's
hand
s"
Inde
ed,
itw
ould
prod
uce
are
sult
dire
ctly
cont
rary
to
arbitra
ryfac
torss
ucha
sthe
perso
nalb
eliefs
ofar
ando
mlya
ssign
edme
mber
ofth
eb
ar.
27Ju
dgeP
atrici
aS.C
urley
and
Greg
gHe
rman
,in
their
articl
e,att
empt
tojus
tifythe
wide
sprea
duse
ofco
urt-ap
point
edrep
resen
tative
sfor
child
renby
descr
ibing
theex
perie
nces
with
that
prac
tice
inW
iscon
sin.
See
Patri
ciaS.
Curle
y&
Greg
gHe
rman
.Rep
resen
tingt
heBe
stIn
terest
sofC
hildr
en:
TheW
isco
nsin
Expe
rienc
e,13
J.Am
.Ac
ad.
Mat
rim.
Law.
123
(199
5).
Yet,
inmy
view,
theW
iscon
sinex
perie
nce
actua
llyun
dersc
ores
thewi
sdom
ofthe
Stan
dards
*pr
ohibi
tion
again
stre
pres
entat
ives
being
perm
itted
toad
voca
tean
out
come
AsCu
rley
and
Herm
anac
know
ledge
,"th
eG
AL's
reco
mmen
datio
nis
comm
only
theev
entua
lord
erof
theco
urt"
wheth
ertha
tres
ultis
achie
ved
byse
ttlem
ento
rtria
l.Id
.at1
30.
The
auth
ors
add
that
the
outc
ome
ofem
erge
ncy
hear
ings
usua
llyis
based
exclu
sively
onthe
guar
dian's
recom
mend
ation
.Id.
This
ispr
ecise
lywh
atthe
Stand
ards
seek
toav
oid.
Itis
diffic
ultto
appr
eciat
eho
wjus
ticei
sfur
there
dby
deleg
ating
theaw
esom
epo
wert
oaff
ectt
heou
tcome
y.13
,Sum
mer
1995
Repo
rter's
Pers
pecti
ve4
9
the
judg
e's
perc
eptio
nof
the
child
'sbe
stin
tere
sts.
The
Com
mit
tee
stro
ngly
belie
ved
that
judg
es,
not
indi
vidu
alm
embe
rsof
the
bar
who
are
rand
omly
sele
cted
tobe
the
child
'sre
pres
enta
tive,
shou
ldbe
the
final
arbi
ters
ofch
ildcu
stody
disp
utes
.M
oreo
ver,
assu
min
gth
eac
cura
cyof
the
judg
e'spe
rcep
tion
ofth
eca
se,
the
Com
mitt
eew
astro
uble
dth
atth
ere
pres
enta
tive's
intru
sion
wou
ldpr
oduc
ean
outc
ome
whi
chis
not
inth
ech
ild's
best
inte
rest
.
For
thes
ere
ason
s,th
eC
omm
ittee
conc
lude
dth
atju
stic
eis
best
serv
edif
repr
esen
tativ
esfo
ryo
ung'
child
ren
—w
heth
erth
ese
repr
esen
tativ
esar
ede
nom
inat
ed"l
awye
rs,"
"gua
rdia
nsad
litem
"or
wha
teve
r—
are
proh
ibite
dfro
mad
voca
ting
apa
rticu
lar
outco
me.2
8R
epre
sent
ativ
esfo
ryo
ung
child
ren
can
atte
mpt
toen
sure
that
the
adve
rsar
ypr
oces
swi
llre
sult,
inth
e"c
orre
ct"
outc
ome
byga
ther
ing
allr
elev
antf
acts
and
plac
ing
them
befo
reth
eju
dge,
who
will
then
bein
anid
ealp
ositi
onto
deci
deth
eca
seb
ased
on
the
chil
d's
bes
tin
tere
sts.
29
B.
The
Con
trol
ling
Prin
cipl
esof
the
Rul
esof
Prof
essio
nal
Co
nd
uct
1.T
he"u
nim
pair
ed"
clie
nt
The
Mod
elR
ules
ofPr
ofes
sion
alC
ondu
ctar
eex
plic
itin
requ
iring
coun
selt
otre
atal
luni
mpa
ired
clie
nts
alik
e,re
gard
less
ofag
e.Fo
run
impa
ired
clie
nts,
incl
udin
gch
ildre
n;;th
eM
odel
Rul
esdi
rect
lawy
ers
to"a
bide
bya
clie
nt's
deci
sions
conc
erni
ngth
eob
ject
ives
ofre
pres
enta
tion.
"30
Exce
ptio
nsto
this
basic
inju
nctio
nar
em
ade
only
whe
ncl
ient
sar
e"i
mpa
ired.
"Ru
le1.1
4in
stru
cts:
(a)
Whe
na
clie
nt's
abili
tyto
mak
ead
equa
tely
cons
ider
edde
cisio
nsin
conn
ectio
nw
ith
the
repr
esen
tatio
nis
impa
ired
/whe
ther
beca
use
ofm
inor
ity,m
enta
ldi
sabi
lity
orfo
rso
me
othe
rrea
son,
the
law
yer
shal
l,as
far
asre
ason
ably
poss
ible
,mai
ntai
na
norm
alcl
ient
*law
yer
rela
tion
ship
wit
hth
ecl
ient
..
.(b
)A
law
yer
may
seek
the
appo
intm
ent
ofa
guar
dhih
tota
keot
her
prot
ectiv
eac
tion
with
resp
ectt
oa
clie
nt,o
nly
whe
nth
elaw
yer
reas
on-
ofa
judi
cial
proc
eedi
ngto
apr
ivat
em
embe
rof
the
bar
who
sepe
rson
alva
lues
and
beli
efs
unav
oida
bly
wil
lsha
peth
ela
wye
r'sul
tim
ate
reco
mm
enda
tion.
28Se
eA
.A.M
.LSt
anda
rds,
supr
ano
te1,
§§2.
7,3.
2.29
See
id.,
supr
a§§
2.11
,2.1
2,2.
13,3
.6,3
.7&
3.8.
3°M
odel
Rul
esof
Pro
fess
iona
lCon
duct
Rule
1.2(a
)(1
994)
.
50 Journal of the American Academy of Matrimonial Lawyers
ably believes that the client cannot adequately act in the client's owninterest.31
The comments to Rule 1.14 emphasize the basic maxim thatthe attorney-client relationship is established to further the client's desires. "The normal client-lawyer relationship is based onthe assumption that the client, when properly advised and assisted, is capable of making decisions about important matters."32Thus, the Model Rules clearly and unambiguously require lawyers representing children to treat them precisely in the samemanner as they treat competent adults unless the child's ability tomake decisions is impaired.
These clearly defined rules led the Committee to concludethat it had little discretion when defining the role of an attorneyrepresenting an unimpaired client. As aresult, the Standards require lawyers for unimpaired children in custody and visitationcases to treat them just as they would treat any other unimpairedclient.
The Standards should not be regarded as requiring or evencalling for appointment of counsel for unimpaired children.33The Standards merely define the role and functions of a lawyer— if appointed by the court. Judges should carefully considerwhether they want such alawyer in the proceedings. If they donot, it is fully consistent with the Standards not to appoint anyone to represent the child. But it is important for courts (and theother parties) to know what they should expect from a lawyerwho is assigned to represent an unimpaired child.
2. The "impaired" clientThe truly difficult issues arise when decisions have to be
made about the position to be advocated for an "impaired" client. The comments to Rule 1.14 state only that: "If the personhas no guardian or legal representative, the lawyer often must actas de facto guardian. Even if the person does have alegal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintainingcommunication."34 In the vast majority of custody cases, courts
31 Id. § 1.14.32 Id. Rule 1.14 cmt.33 See A.A.M.L. Standards, supra note 1, § 1.1.34 Model Rules of Professional Conduct Rule 1.14 cmt. (1994).
VOL iJj OUtnmci f*?-' -.-r- 4
are unwilling to appoint both a guardian and an attorney."Thus even when lawyers believe there is a need for a guardianand would like the court to appoint one. the lawyer may beobliged, in the words of the commentary, to "act as de factoguardian"36 As a"de facto guardian," itwould appear that theModel Rules authorize alawyer to advocate aposition contraryto what the client wants.37 Presumably, this would permit counsel to decide what outcome is best for the client and to seek toachieve that result through the ordinary means available tolawyers. .
At the same time, the Model Rules do not require awyersacting as "de facto guardians" to advocate any particular outcome It is consistent with the Rules for an attorney acting as"de facto guardian" to refuse to take aposition on the ultimateoutcome of the case. Guardians who choose to protect their clients' interests by ensuring that the proceedings are conducted expeditiously and sensitively and that they take into account theneeds and best interests of the child have not violated any rulesof conduct.
As emphasized earlier, inviting lawyers to recommend aparticular outcome based on the lawyers' personal values or beliefsdoes relatively little to ensure that the case is more likely to bedecided in accordance with the child's best interests The Committee concluded that cases are most likely to be decided on thebasis ofwhat is best for children when lawyers representing impaired children "inquire thoroughly into all circumstances that acareful and competent person in the [child's] position shouldconsider in determining the [child's] interests with respect to the
35 many event, appointing aguardian ad litem would be °'no help underthe Standards since they prohibit guardians from advocating^^JZAAML Standards, supra note 1, §3.2. Aguardian would not be permitted tofnsYructWs or her lawyer to advocate an outcome of the guardian's choice anymore than the guardian would be authorized to instruct him or herself to advo-cate an outcome for achild. /inn>t\
36 Model Rules of Professional Conduct Rule 1.14 cmt. (1994).37 Atthe same time, there Ureason to believe the Model Rules contem-
nlate that lawyers are obliged to seek the outcome desired even by impaired£u^ lleTnno ated Commentary to the Model Rules states that"loTrdinarily, as in any client-lawyer relationship, the lawyer has the duty toadvocate the wishes of the disabled client." Id.
52 Joui the American Academy of Matrimonial Lawyers
proceeding."38 In all events, lawyers should "refuse to adopt anyparticular posture in the case and limit all activities to investigation, presentation and examination of evidence material to theproceeding, including the expressed wishes of the client."39
C. Development ofa Uniform Role for Guardians Ad LitemEven Though Unconstrained by Rules of ProfessionalConduct
Few, if any, Committee members thought when they beganwork on the Committee that they would recommend that guardians ad litem beprohibited from expressing an opinion on theoutcome of the case. Most Committee members were familiar withthe practices in jurisdictions in which guardians routinely makesuch recommendations. Indeed, a number of Committee members had substantial personal experience ascourt-assigned guardians and had made recommendations to courts in a number of.cases.
Nonetheless, the Committee achieved a consensus by thetime it completed its work that guardians should be constrainedto precisely the same degree as lawyers in advocating results. Itis unlikely this consensus would have been achieved had theCommittee developed the Standards in a less systematic fashion.By the lime the Committee reached the question of the guardian's role, its earlier decisions led ineluctably to the standardsthat were adopted. The Committee sought to produce, a document that was coherent and consistent.
The Committee had already decided against permitting lawyers to advocate an outcome when representing impaired clients.This conclusion was not based on an interpretation of the Codeof Professional Responsibility or the Model Rules of ProfessionalConduct. Rather, it was based on policy considerations. As theCommittee realized when it took up the subject of guardians, thepolicy considerations have equal force whether applied to attorneys or non-attorneys. Once these concepts were settled, itquickly became clear that the original understanding of theproper role of a guardian had to be reconsidered. Ultimately,
38 Juvenile Justice Standards, Counsel for Private Parties, Standard3.1(b)(ii)(c) (Institute of Judicial Administration/American Bar Association1981).
39 id. Standard 3.1(b)(ii)(c) cmt.
[3, Summer 1995 Reporter's Perspective 53
the Committee concluded unanimously that guardians should notbe permitted to express an opinion on the outcome of the caseIn the event that aguardian does express such an opinion, theStandards require that it be given in the form of sworn testimonysubject to cross examination,^ the same as would be required ofany other expert testimony.41
D. Impact on the Substantive Standard by Which Cases Are toBe Decided
The Committee spent considerable time assessing the relationship between standards for counsel in family law cases andthe substantive law and procedure governing such cases. Ultimately, as explained earlier, the Committee concluded that itwould not take aposition on the substantive law or procedure offamily law cases. v
^e Committee realized, however, that at least one aspect ofits task of defining standards for appointment of counsel and responsibilities of lawyers could have an indirect effect upon thesubstantive law of many jurisdictions. In the vast majority of jurisdictions, the standards for determining custody of childrenprovide that achild's expressed preference for a particular parent or guardian is one - but only one - factor for the court toconsider." But appointment of alawyer for achild runs the riskof elevating the expressed wishes of the child to a degree ofprominence and weight in the ultimate calculus that is at oddswith the current law. With a lawyer forcefully articulating the
40 Sep A.A.M.L. Standards, supra note 1. §38(a),41 #nc* ordinarily only experts may give opinion testimony FederalRules of Evidence, Rules 701 &702, guardians shoSld first be quaiLd as an
expert to be able to render an opinion. Unless the guardian is soYualtfed theopinion testimony should be inadmissible. Once the guardian'isVquaUtiedthe testimony should be subject to the rigors of cross examination in order toreveal the hmitations of the expert's knowledge or expertise, -or to exolo eother traditional topics of cross examination such as bias or Stake PCode I32*71?7i££w ° >^ ^ §46(b)*56^ (West 1995); IdahoLode §32-717 (1994); Ind. Code Ann. §31-l-11.5-21(a) (West, 1995)- Ohios^eslTesXl31T(mliAldei&0n 1993)- ^-^v^nnes":statute states, The preference of such child or children shall hot be bindineupon the cour but shall be afactor the court shall consider in detenninbfWHh!wh PaSl' If eUher' Sh°U,d be awarded care- '""ody and controf~hchild or children." Tenn. Code Ann. §36-6-102(a) (1994)
•
54
Journa
lofth
eAme
rican
Acad
emyo
fMatr
imon
ialLa
wyers
CUd's
prefere
ncewith
alloft
he^^^
^ate
rtra
i„eda
dvocat
e,tha
tposm
onme
vu*,
wIas
un«fa
^^
wei
ehlt
han
Iwou
ldif
mer
ely
expr
esse
uuy
Self
.Wh
ilea
judge
assure
dlywo
ulden
deav
orto
realt
hech
ild's
wishe
sasm
erely
onef
actor
amon
gman
y,.1
will
bever
ydi
fficu
ltac
tual
lyto
doso
."lln
inll.
Tned
ilemm
apr
esente
dhere
isac
onseq
uenc
eothe
unqu
ena
tureo
fchil
dcu
stody
cases.
Inall
other
areas
qthe
lawa
™rtv
^sexo
ressed
wishi
spres
umed
tobe
(andg
enera
llyisi
nfad
)
J^ff
n^o
SU
n"
havea
constitu
tionalr
ightto
^utap
ponte
dcoun
selinc
rimina
lP^^
ihL
o°fta"
:
'^S
SZ
X^
EZ
.Uiso
ften.the
case.na
tine'cni
ld'sexp
ressed
preferen
ceis£
—«
^£
uor
«hpc
tin
tere
st"
Itis
prec
isel
yfo
rth
isre
ason
"»iu
luc
Sing
anout
comet
hatwil
lbest
serve
thechi
ldsm
teresU
,In
deeT
asind
icated
above,
appo
intme
ntof
counse
lmay
under
—Z
Harala
mbie&
Glaser.
supra,
nole2
6.a.65
attemp
t£«
5£
*£
.weer,
.hewei
gh,aju
dgewiU
give10<
*£££
£te
Socd
on"J
nwiU
give»
*.^<
?:z°
^ZcX
>£^™
™*°
c,ear
'iudg
Mmy
view,
illuso
ry.
Asthe
artic
leby
curle
y*
advo
cate'
sre
com-
roulin
elydec
ideihe
casep
recsel
yin»
<*°'d
»"MU
,nd"tl
thisi
s10b
eex-
menti
on,t
oCu
rleyft•
fan^
^|^^
^Sdh
taeU
-«li
»pee
led.1
1isper
fectly
unders
landab
leI™
l£S«
jbo
»™dcW
MwU
,
ofth
ech
ild.
4j37
2U
.S.3
35(1
963)
.
Vol
.13
,S
um
mer
-199
5K
epo
rter
sre
rsp
ecn
ve
min
eth
ela
tter
goal
byin
crea
sing
the
likel
ihoo
dth
atth
eju
dge
will
rule
infa
vor
ofth
ech
ild's
pref
eren
ceev
enth
ough
care
ful
delib
erat
ions
wou
ldre
veal
that
this
outc
ome
wou
ldno
tbe
best
for
the
child
.Th
ech
ild's
pref
eren
ces
are
supp
osed
tobe
aw
eigh
ton
the
scal
eof
the
deci
sion
mak
er,
nott
oti
pth
esc
ale
agai
nstt
hech
ild
'sb
est
inte
rest
s.Fo
rth
ese
reas
ons,
amon
got
hers
expl
aine
dab
ove,
the
Com
mitt
eefo
rbor
efro
mre
quiri
ngor
even
calli
ngfor
appo
intm
ent.o
fco
unse
lfo
rch
ildre
n.Th
eC
omm
ittee
sim
ply
was
unw
illin
gto
adop
tstan
dard
stha
twou
ldind
irectl
yun
derm
inethe
subs
tant
ivela
wof
child
custo
dyin
ways
that
woul
dof
ten
beun
dete
ctab
le—
and
unrem
ediab
le—
inind
ividu
alca
ses.
Ifthe
prev
ailing
substa
ntive
lawre
gard
ing
the
weig
htto
beac
cord
eda
child
'spr
efer
ence
sw
ere
diffe
rent
,iti
shi
ghly
likel
yth
atth
eC
omm
ittee
wou
ldha
vepr
opos
eddi
ffere
ntsta
ndar
ds.
Ifthe
lawof
child
custo
dysh
ould
chan
gein
the
futu
re,
itwo
uld
beap
prop
riate
forth
eA
cade
my
tore
cons
ider
the
Stan
dard
s.45
V.
Co
nclu
sio
nTh
edr
aftin
gof
thes
eSt
anda
rds
prov
edto
bean
exci
ting
learn
ing
expe
rienc
efor
the
entir
eC
omm
ittee
.Sp
eaki
ngpe
rson
ally,
itwa
sone
ofth
emos
trew
ardin
gpr
ofessi
onal
expe
rienc
esof
myca
reer
.Ib
eliev
eth
eAc
adem
yhas
prod
uced
the
most
cohe
ren
tand
thor
ough
stand
ards
ever
deve
lope
don
the
subj
ecto
frep
rese
ntin
gch
ildre
n.Th
eypr
ovid
egu
idan
cefor
judg
es,
lawy
ers
and
guar
dians
.Th
eyals
opa
veth
ewa
yto
still
furthe
rre
fine
men
tsin
our
unde
rsta
ndin
gof
the
best
ways
tore
pres
ent
chil
dren
and
toen
sure
that
child
custo
dyca
ses
are
reso
lved
ina
man
ner
that
best
serv
esth
ein
tere
stof
the
child
ren
atth
ece
nter
of
these
ca
ses.
45if
'fore
xamp
le,the
subs
tant
ivelaw
ina
parti
cular
juris
dicti
onad
opted
apre
sump
tion
thatt
hewi
shes
ofac
hild
over
theag
eofs
ixsh
ould
contr
olthe
outc
ome
ina
custo
dyca
se,i
tmig
htm
ake
sens
eto
prov
ide
allch
ildre
nag
esix
and
olde
rwi
thco
unse
l;an
dit
woul
dsu
rely
mak
ese
nse
tode
fine
coun
sel's
role
asin
cludi
ngde
term
inin
gth
ech
ild's
wish
esan
dfo
rcefu
llyad
voca
ting
them
onhi
sor
her
beha
lf.In
deed
,in
such
aju
risdi
ctio
n,if
ala
wyer
were
free
todi
sre
gard
thech
ild's
wish
esan
dad
voca
tean
outco
metha
tthe
lawye
rpe
rsona
llybe
lieve
dwa
sbe
stfor
the
child
,itw
ould
becle
arth
atth
ela
wyer
brea
ched
the
clie
nt's
righ
tto
behe
ard.
J
> K*3 ~« So'
^73, Summer 1995 "Impaired" Children 57
Practical and Theoretical Problemswith the AAML Standards forRepresenting "Impaired" Children
s byg Ann M. Haralambief
•< Deborah L. Glasertto
|. Introduction
Tlie American Academy of Matrimonial Lawyers(A.A.M.L.) has recently adopted Representing Children: Standards for Attorneys and Guardians ad Litem in Custody or Visitation Proceedings ("Standards").' This article discusses theaspects of the Standards which apply to "impaired" children, arguing that the categorization of children is impractical in application and not based on sound empirical evidence concerning childdevelopment, and that the diminished role of attorneys for "impaired" children, precluding such attorneys from advocating aposition, deprives the children, the court, and the other parties ofthe creative, child-oriented advocacy which is the hallmark of atrained child's attorney. Finally, the article recommends that attorneys for all children take strong, informed advocacy positionson behalf of their clients, and that organizations seeking to promulgate standards for such attorneys focus on assisting attorneysto make the case- and issue-specific decisions necessary for accommodating children's developmental limitations.
t Ann M. Haralambie practices juvenile and family law with Haralambie& Owsley, P.C. in 1\icson,Arizona.
tt Deborah L. Glaser is a graduate of the^ Loyola University ChicagoSchool ofLaw where she was a Civitas Scholar at the Civitas ChUdLaw Centeran integrated three-year curriculum to train law students as child advocates. '
1 Representing Children: Standards for Attorneys andGuardians ad Litem in Custody or Visitation Proceedings (AmericanAcademy of Matrimonial Lawyers 1994) [hereinafter A.A.M.L Standards)
58 Journal of the American Academy of Matrimonial Lawyers
L The Distinction Between "Impaired" and"Unimpaired" Children
A. The Standards
Amajor structural component of the Standards is the distinction between "impaired" and "unimpaired" child clients asdetermined by the attorney. Standard 2.1 states: "In order to define the appropriate nature of his or her role and responsibilitiesas counsel for a child, counsel should determine whether thechild client is 'impaired' or 'unimpaired.'" The Comment toStandard 2.1 indicates that children may be impaired "dependingupon their age, degree of maturity, intelligence, level of comprehension, ability to communicate, and other similar factors."2
Standard 2.2 provides a rebuttable presumption that children twelve and older are "unimpaired" and that children undertwelve are "impaired." The Comment to Standard 2.2 indicatesthat "the essential qualities distinguishing an unimpaired clientfrom an impaired one is the capacity to comprehend the issuesinvolved in the litigation, to speak thoughtfully about the case
-" and the client's interests at stake, and to appreciate the conse-? quences of the available alternatives."' Further, according to the
Comment, the presumptive dividing line at age twelve was basedon the literature concerning cognitive development,4 the fact thatchildren as young as twelve have been afforded various constitutional rights, including free speech* and abortion privacy rights,6
= Id. § 2.1.
3 Id. § 2.2 cmt.4 The Comment cites Gary B. Melton, Children's Competence to Con
sent in Children's Competence to Consent 1(Gary B. Melton et al. eds.,1983)- Lois A. Weithorn. Involving Children in Decisions Affecting Their OwnWelfare, in Children's Competence to Consent 235 (Gary B. Melton el a.eds 1983); Lois A. Weithorn &Susan A. Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53 Child Dev.1589. 1589-91 (1982); Barbel Inhelder &Jean Piaget. The Growth ofLogical Thinking (1958).
5 The Comment cites Tinker v. Des Moines Indep. Community Sch.Dist.. 393 U.S. 503 (1969).
« The Comment cites Belotti v. Baird, 443 U.S. 622 (1979); Ohio v. Akron Reproductive Health Ctr., 497 U.S. 502 (1990); Carey v. Population Serv.Inn. 431 U.S. 678(1977).
Vol. 13, Summer L995 "Impaired" Children W
and the views of judges who consider children's custodialpreferences.7
B. Problems with the Presumptive Age of Impairment
1. Child Development Literature
The literature on cognitive development cited in the Comment to Standard 2.2 is somewhat dated, the literature cited doesnot consistently support the Standard's position, and the Piage-tian concepts of rigid, linear developmental stages upon whichthe Standard's position is based have been called into question.8Child development (which encompasses more than only cognitive development) is meaningful in a forensic context only withrespect to specific issues. Therefore, developmental abilitiesmust be seen in a contextual and functional light.9 Viewed in thisway, child development experts have reached conclusions different from those reflected in the Comment to Standard 2.2.
i The Comment cites Elizabeth S. Scott et al.. Children's Preferences inAdjudicated Custody Decisions, 22 Ga. L Rev. 1035,1050 (1988).
a See, e.g., Rosemary Rosser, Cognitive Development: Psychological and Biolooical Perspectives 11. 24 (1994) ("Detection of early competence is damaging to Piaget's analysis since he constrained knowledgeacquisition to specific time frames"; "(t]he stage hypothesis has not fared allthat well empirically"); Richard A.Shweder etal.. Culture and Moral Development, in The Emergence of Morality inYoung Children 1. 13 (JeromeKagan & Sharon Lamb eds., 1987) ("It has come to be acknowledged thathuman cognitive growth is not very stagelike, and no single cognitive stage (preoperational, concrete operational, formal operational) is acharacteristic property of an individual's cognitive functioning."); Rochel Gelman &. ReneeBaillargeon, A Review of Some Piagetian Concepts, in 3 Manual of ChildPsychology 167 (John H. Flavell & Ellen M. Markman eds.. 1983) ("the experimental evidence available today no longer supports the hypothesis ofamajor qualitative shift from preoperational thought"). See generally Elizabeth S.Spelke, Where Perceiving Ends and Thinking Begins: The Apprehension ofObjects in Infancy, in 20 Perceptual Development in Infancy: MinnesotaSymposium on Child Development 197 (A. Yonas ed., 1988); John H.Flavell, Cognitive Development (2d ed. 1985); Charles J. Brainerd,Piaget's Theory of Intelligence (1978); Alternatives to Piaget: Criti-cal Essays on the Theory (Linda S. Siegel &. Charles J. Brainerd eds..1978).
9 For a discussion of determining competency contextually in criminalcases, see. eg.,Steven K.Hoge et al., Attorney-Client Decision-Making in Criminal Cases: Client Competence and Participation asPerceived by their Attorneys,10 Behav. Sci. & L. 385, 386 (1992).
60
Jou.
il/"t
heAm
erica
nA
cade
my
ofM
atrim
onia
lLaw
yers
One
ofth
ebo
okch
apte
rs.c
ited
inth
eC
omm
ent
poin
tsou
tth
eim
porta
ntlim
itatio
nth
atth
ere
has
notb
een
syste
mat
icre
sear
chon
the
com
pete
nce
ofch
ildre
nto
parti
cipa
tein
the
deci
sionm
akin
gpr
oces
sco
ncer
ning
thei
rcu
stody
.10
Inan
othe
rbo
okch
apte
rci
ted
byth
eCo
mm
ent,
the
follo
win
gqu
alifi
catio
nis
expr
esse
d:"A
lthou
ghit
isun
likel
yth
atch
ildre
nyo
unge
rth
anag
e7
will
beju
dged
com
pete
ntac
cord
ing
toth
em
ore
stri
ngen
tst
anda
rds,
itis
likel
yth
atm
any
may
have
reas
onab
lepr
efer
ence
san
did
eas
abou
tw
hat
happ
ens
toth
em."
11It
isdi
ffic
ult
tous
ecu
t-off
poin
ts,e
ven
rebu
ttabl
epr
esum
ptio
ns,
for
dete
rmin
ing
com
pete
ncy,
or"i
mpa
irm
ent,"
beca
use
asA
llen
Buc
hana
nan
dD
anB
rock
poin
tout
inth
eco
ntex
tofm
edi
cald
ecis
ionm
akin
g,"[
f]or
child
ren
asw
ell
asad
ults
,com
pete
nce
isre
lativ
eto
asp
ecifi
cde
cisi
on,
and
anad
oles
cent
'sco
mpe
tenc
em
ayva
ryov
ertim
ew
ithch
ange
sin
his
orhe
rco
nditi
onan
dso
may
bein
term
itten
torf
luctu
ating
."12
Ther
efor
e,it
isdi
fficu
ltto
spea
kin
term
sof
child
clie
nts
bein
g"i
mpa
ired"
or"u
nim
paire
d."
Old
erch
ildre
n,w
hom
aybe
deem
ed"u
nim
paire
d,"
may
actu
ally
bein
com
pete
ntw
ithre
spec
tto
certa
iniss
ues
invo
lved
inth
ere
pre
sent
atio
n.If
one
inst
ance
of"i
mpa
irm
ent"
wer
eto
rend
era
child
"im
paire
d,"
ther
eby
alte
ring
the
atto
rney
-clie
ntre
latio
nsh
ip,
then
noch
ild(a
ndpe
rhap
sno
adul
t)co
uld
bede
emed
"uni
mpa
ired.
"B
ucha
nan
and
Bro
ckfu
rther
expl
ain:
The
stat
emen
tth
ata
parti
cula
rin
divi
dual
is(o
ris
not)
com
pete
ntis
inco
mpl
ete.
Com
pete
nce
isal
way
sco
mpe
tenc
efo
rso
me
task
—co
mpe
tenc
eto
doso
meth
ing
[T]h
eno
tion
ofde
cisio
n-m
akin
gca
paci
tyis
itsel
finc
ompl
ete
until
the
natu
reof
the
choi
ceas
wel
las
thec
ondi
tion
sun
der
whi
chit
isto
bem
ade
are
spec
ified
.T
hus
com
pete
nce
isde
cisi
on-r
elat
ive,
notg
loba
l.A
pers
onm
aybe
com
pete
ntto
mak
ea
parti
cula
rde
cisio
nat
apa
rticu
lar
time,
unde
rce
rtain
circ
umsta
nces
,bu
tin
com
pete
ntto
mak
ean
othe
rde
cisio
n,or
even
the
sam
ede
cisio
n,
•"Se
eM
ello
n,su
pra
note
4,at
15.
Mel
ton'
sca
veat
was
echo
edin
the
cont
ext
ofde
linqu
ency
case
s:"W
eha
veno
soci
alsc
ienc
ere
sear
chev
iden
ce,
how
ever
,w
ith
whi
chto
dete
rmin
eth
eim
port
ance
ofth
ese
elem
ents
offu
nctio
ning
,ani
lkn
owle
dge
(act
ually
,or
aspe
rcei
ved
byleg
alpr
ofes
siona
ls)fo
ra
juve
nile'
spa
rticip
atio
nin
the
trial
proc
ess.
Furth
er,d
iffer
ent
abili
ties
may
bem
ore
orles
sim
port
ant
for
diffe
rent
type
sof
juve
nile
cour
tpr
ocee
ding
s."Se
eTh
omas
Gri
sso
etal
.,C
ompe
tenc
yto
Stan
dTr
iali
nJu
veni
leC
ourt,
10In
t'l
J.o
fL
.&
Psy
ch
iatr
y11
(198
7).
1»Se
eW
eith
orn,
supr
ano
te4,
al24
6.»2
See
All
en
E.
Bu
cha
na
n&
Da
nW
.B
rock,
Dec
idin
gfo
rO
thers
:T
he
Eth
ics
of
Su
rro
ga
teD
ecis
ion
Ma
kin
g21
7(1
989)
.
13,
Su
mm
er19
95'I
mpa
ired
"C
hild
ren
61
unde
rdi
ffere
ntco
nditi
ons.
Aco
mpe
tenc
ede
term
inat
ion,
then
,is
ade
termi
natio
nof
apar
ticula
rper
son's
capa
city
tope
rform
apa
rticu
larde
cisio
n-ma
king
task
ata
parti
cular
time
and
unde
rsp
ecifi
edco
nd
itio
ns.
13
Itis
not
help
ful
tolo
okat
child
ren'
sco
mpe
tenc
yin
term
sof
ath
eore
tical
"rea
sona
ble
perso
n";r
athe
r,th
eirc
ompe
tency
shou
ldbe
com
pare
dto
that
ofad
ults,
whos
eow
nco
mpe
tency
may
Vary
over
time
and
who
may
noti
nfa
ct"m
ake
impo
rtant
life
deci
sions
ina
man
ner
that
would
beju
dged
com
peten
tacc
ordin
gto
pre
vaili
ngle
gal
stan
dard
s."1
4A
num
bero
fsou
rces
show
the
fragi
lity
ofth
eem
piric
alba
seup
onw
hich
Stan
dard
2.2re
sts,a
ndwe
may
serio
usly
unde
resti
mate
the
com
pete
nce
ofch
ildre
n.Fo
rexa
mpl
e,on
estu
dyof
six-
toni
ne-y
ear-
old
child
ren
conc
erni
ngth
ede
cisio
nto
rece
ive
anin
ocul
ation
again
stsw
ineflu
foun
dth
atev
ensu
chyo
ung
child
ren
mad
ede
cisio
nsco
mpa
rabl
eto
thos
eof
adul
ts,,c
ausin
gth
ere
sear
cher
tosta
te,
"our
maj
orco
nclu
sion
isth
at,c
hild
ren
are
far
mor
eco
mpe
tent
inde
cisi
onm
akin
gth
anad
ults
belie
veth
emto
be.
Child
ren
can
learn
decis
ionm
akin
gan
d,wh
engiv
enth
eop
portu
nity
,mak
ere
mar
kabl
yre
spon
sible
decis
ions."
15Si
mila
rly,
with
resp
ect
tops
ycho
educ
atio
nal
deci
sionm
akin
gD
onal
dBe
r-so
ffar
gues
that
wesh
ould
pres
ume
that
child
ren
are
capa
ble
ofm
akin
gde
cisi
ons
asw
ella
sadu
ltsan
dth
atth
ebu
rden
shou
ldfa
llon
thos
ese
ekin
gto
depr
ive
child
ren
ofch
oice
topr
ove
a"s
igni
fica
ntris
kof
irrev
ersib
leda
mag
eor
clear
and
conv
incin
gem
piric
alev
iden
ceth
atat
parti
cular
ages
child
ren
dono
thav
esu
fficie
ntly
deve
lope
dsk
ills
toex
erci
sedi
scre
tion.
"16
The
reco
gniti
onby
psyc
holo
gists
that
com
pete
ncy
isco
ntex
tual
,in
crem
enta
l,an
dch
angi
ng,
even
for
adul
ts,
mak
esth
eat
tempt
tolab
ela
child
aseit
her
"impa
ired"
or"u
nim
paire
d"in
toto
am
islea
ding
and
dise
mpo
wer
ing
resp
onsib
ility
,and
one
for
which
the
attor
ney
qua
attor
ney
hasn
opa
rticu
larqu
alific
ation
s.
13Id.
at18
.(F
ootno
teom
itted
;emp
hasis
inor
igina
l).In
abo
okch
apter
cited
inthe
Comm
entt
oSta
ndar
d2.2
,Lois
Weit
horn
takes
asim
ilarp
ositio
n.W
eith
orn,
supr
ano
te4,
at24
3.14
Wei
thor
n,su
pra
note
4,at
243.
J5Se
eC
harle
sE
.Lew
is,D
ecisi
onm
akin
gRe
lated
toH
ealth
:Whe
nC
ould
/Sh
ould
Child
ren
ActR
espo
nsibl
y?,i
nC
hild
ren'
sC
ompe
tenc
eto
Con
sent
.su
pra
note
4,at
75,9
1(e
mph
asis
inor
igin
al).
I*Se
eD
onal
dN.
Bers
off,
Child
ren
asPa
rticip
ants
inPs
ycho
educ
atio
nal
Asse
ssm
ent,
inC
hild
ren
Com
pete
nce
toC
onse
t,su
pra
note
4.at
149,
170.
L/ii
-J
62 Journal ofthe American Academy ofMatrimonial Lawyers
It is important to realize that the various experts quotedabove are talking about decisionmaking, which is a part of directing legal representation. However, the child's attorney canform adecisionmaking partnership with the child, arelationshipwhich may influence the child's decisionmaking. This model isdiscussed in part in more detail below, but in determining impairment" it is useful to realize that afunctional definition mustinclude the attorney's part of the relationship as well as thechild's.
2. Children's Constitutional Rights
The United States Supreme Court has recognized constitutional rights in children under twelve as well as for older children Most relevant are the pronouncements in United States vKent" and In re Gault" that children accused of delinquent offenses have aconstitutional right to counsel. There was no specified age triggering the right to counsel, even, though mostdelinquency statutes permit prosecution of children as young asseven or eight years. There is no question that alleged delinquents younger than twelve have the right to have counsel competently represent them." Similarly, children in delinquencyproceedings have the Fifth Amendment right against self-incrimination, must be given Miranda warnings, and have the SixthAmendment right to confront and cross-examine adverse witnesses." Children are entitled to require that the state prove delinquency allegations against them beyond areasonable doubt.
The Supreme Court also made clear that "neither the Fourteenth Amendment nor the Bill of Rights is for adults alone »Children are considered to be "persons" to whom the Constitution applies.23 For example, First Amendment24 and Fourth
n 383 U.S. 541 (1966).
is 387-U.S. 1 (1966). .19 Of course, achild will not continue in the delinquency process ifhe or
she is found incompetent to stand trial, afact which ensures as apractical matter a certain degree of competency.
20 See In re Gaull. 387 U.S. 1 (1966).2i See In reWinship, 397 U.S. 358 (1970).22 See In re Gault. 387U.S. at 13 (1967).23 See Tinker v. Des Moines Indep. Sen. Dist.. 393 U.S. 503. 511 (1969).
Vol. 13, Summer 1995 "Impaired" Children 63
Amendment25 rights are extended to children, although not identically to their application to adults.26 In the abortion context theCourt has recognized that "[constitutional rights do not matureand come into being magically only when one attains the state-defined age of majority."27 Due process is required in school disciplinary proceedings; although, the scope of protection dependson the severity of the punishment.28 In none of these cases didthe Court put an age limit on the exercise of the constitutionalrights involved.
Children have aright to attend public schools which are notlegally or factually racially segregated.2* They have aright to befree from discrimination based on national origin.30 If they arecivilly committed, they have the. right to reasonable care andsafety.31 The Supreme Court has intimated that foster childrenmay also have the right to state protection from physical abuse.32These rights are particularly illustrative because they aredesigned to protect children who have done nothing wrong.Children involved in a domestic relations dispute are similarlywithout fault and in need ofprotection. The rights guaranteed bythe cases cited in this paragraph do not depend on the child'sabilities to make decisions, but they do recognize that there arecertain basic needs of children which are worthy of protection.Children's interests in living in a safe and stable environmentwith people they feel close to and in contact with significant persons in their lives are similar interests worthy of protection.
24 id. See also Board ofEduc. Island Trees Union Free Sch. Dist. No. 26v. Pico. 457 U.S. 853 (1982); West Virginia State Bd. of Educ. v. Barnette. 319U.S. 64 (1943).
« See, eg., New Jersey v. T.L.O.. 469 U.S. 325 (1985).26 Id. See also Hazelwood Sch. Dist. v. Kuhlmejer. 484 U.S. 260 (1988).27 See, e.g.t Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976).28' See, e.g., Goss v. Lopez, 419 U.S. 565 (1975).29 See eg Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979); Keyes
v. School Dist. No. 1. 413 U.S. 189 (1973); Green v. County Sch. Bd., 391 U.S.430 (1968); Brown v. Board of Educ, 347 U.S. 483 (1954).
so See, e.g., Lau v. Nichols, 414 U.S. 563 (1974).3> See, e.g., Youngberg v. Romeo, 407 U.S. 307 (1982).M See DeShaney v. Winnebago County Dep't of Social Serv.. 489 U.S.
189 201 (1989) (such children, unlike Joshua DeShaney, who had been returned to parental care, may be in asituation "sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect ).
64 Journa fthe American Academy of Matrimonial Lawyers
Having the assistance of independent counsel can help topromote and protect those interests. Counsel can present evidence of the child's attachments, preferences, and individualneeds, as well as the ability and willingness of the respective parents to meet those needs. Counsel can highlight any dangersposed by the parents or their circumstances and any insensitivi-ties to the child's needs. Further, counsel can suggest ways tomaximize the child's best interests or expressed wishes. Expertwitnesses and other adults involved with the child client can assist in the attorney's formulation of a child-oriented positioneven without direct instructions from the child.
In the delinquency context the Supreme Court has statedthat "there may be grounds for concern that the child receivesthe worst of both worlds: that he gets neither the protection accorded to adults nor the solicitous care and regenerative treatment postulated for children."33 In the custody and visitationcontext, young children may be in the same position: having novoice and receiving no advocacy, despite the fact that they arethe most directly affected by the court's decision.
3. Judicial Views of Children's Preferences
The Comment to Standard 2.2 refers to a survey of Virginiajudges34 which was conducted "to determine whether and towhat extent they are interested in the views of children who arethe subject of the custody dispute."35 In that survey, 89% of thejudges surveyed ranked the preferences of children fourteen orolder as dispositive or extremely important, 96% ranked thepreferences of children ten to thirteen as extremely or somewhatimportant, and 92% ranked the preferences of children six tonine as somewhat important or not important.36 There was noindication that the judges surveyed were responding with refer-
33 Sec Kent v.United States. 383 U.S. 541, 556 (1966).34 See'Scoll. supra note 7.™ A.A.M.L. Standards, supra note 1, § 2.2 cmt.36 W at 1050. It is interesting to note that in asurvey of 156 California
judges and 82 mental health professionals, the latter accorded more weight tothe preferences of five-year-olds than judges did. See Thomas Reidy et al..Child Custody Decisions: ASurvey of Judges, 23 Fam. L.Q. 75. 84 X1989). Seealso Carol R. Lowery. The Wisdom ofSolomon: Criteria for Child Custody fromthe Legal and Clinical Points of View, 8L. &Hum. Behav. 371. 377 (1984).
\3, Summer J 995 "Impaired" Children 65
ence to represented children. One would certainly hope that represented children would have the benefit of independent andtrained input into their preferences and that the expression ofthose preferences would include an objective basis for the preference, something which judges may or may not ascertain on theirown while eliciting the preference.
The issue of whether a child's custodial preference is givengreat weight by the.judge is an entirely separate issue fromwhether the child's position should be presented independentlyto the court.37 Having a child's attorney advocate a position simply means that certain evidence is presented to the court and interpreted to the court from the child's perspective, not that thecourt will order what the child's attorney has advocated. The factthat a judge does not follow a preference does hot mean that thechild should be deprived of an advocate. In addition, the child'sattorney advocates a much more comprehensive position thanmerely the child's custodial preference, which is only one ofmany factors to be considered. Therefore, the fact that judgesmay be more likely to give considerable weight to a twelve-year-old's preference than to a six-year-old's is not an indication that asix-year-old's overall position in the case will not be adopted orgiven considerable weight by the court.
Further, basing a standard on the actual practices of judges,especially based on a survey of judges in one state, without regard for the judges' knowledge of child development, should notconstitute a basis for determining whether there is empirical support for a standard that would deprive children of a meaningfulvoice in court. Judges, who are themselves attorneys, have noparticular expertise to determine custody and visitation issues.They are as vulnerable to their own values, biases, and philosophies as untrained children's lawyers are. Chodsing a particular
37 It is interesting to note that the Comment to Standard 2.13 states that"impaired children have the same right as allother children to make their viewsknown to the judge." Therefore, even though the Comment to Standard 2.2notes that judges do not give much weight to young children's preferences, onerationale for presuming that children under twelve are "impaired," the Standards nevertheless expect the "impaired" child's attorney to communicate hisor her preference, unlessspecifically prohibited by the child! It is also interesting to note that the attorney is bound by the directions of the "impaired" childwith respect to this nondisclosure issue. This seems to be inconsistent with therationale for denying "impaired" children attorneys who are advocates.
66Jo
urna
loft
heAm
erica
nAc
adem
yof
Matr
imon
ialLa
wyers
ageof
assum
edcom
petenc
ybas
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icial
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cesco
uldme
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edste
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d!«
?>£"
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her
than
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tical
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rney
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comp
etenc
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mine
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irmen
tTh
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dards
point
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ttorn
eysa
reno
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ned
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able
tom
ake
decis
ions
abou
tthe
"impa
ired"
child
'sbe
stin
teres
ts*
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icalt
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ttorn
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city
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esswh
ether
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ired
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ething
fewme
ntalh
ealth
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tyto
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Miran
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ents
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alas
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er,the
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pirica
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Noch
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llbe
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etent
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,with
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ctto
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hnee
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positi
onsw
hichn
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endu
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rseof
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y/
u.itie
sdist
inguis
hinga
nun
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ired
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tfrom
anim
pa.re
don
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£the
capaci
tyto
compre
hendt
heiss
uesinv
olved
inthe
litiga
tion,
3BaA
ML
Stand
ards.s
upra
note
1,§2
.7cm
t.n.27
indica
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onstr
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ngthis
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acity
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sorAll
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******
«*medic
aia«db
ehaviora
iexperts
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ersatio
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ock,
supra
note
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rsoff.
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note1
6.at
149151
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73;Mi
chael
J.Sa
ks.So
cialP
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logica
lPers
pective
son
thePro
blem
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nsent,
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ildre
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mpete
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nsen
t,sup
rano
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.50;
Weit
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rano
te4.
al23
5.24
3.
J
Vol
.13
,Sum
mer
1995
"Im
pair
ed"
Chi
ldre
n6
7
tosp
eak
thou
ghtfu
llyab
out
the
case
and
the
clie
nt's
inte
rest
sat
stak
e,an
dto
appr
ecia
teth
eco
nseq
uenc
esof
the
avai
labl
eal
ter
nativ
es."4
2T
heC
omm
ent
reco
gniz
esth
atat
torn
eys
mus
tbe
give
n"m
eani
ngfu
lgui
danc
e"in
dete
rmin
ing
whe
ther
orno
tth
ech
ildis
"im
paire
d"in
orde
rto
avoi
d"d
ram
atic
ally
disp
arat
ebe
havi
or"
bydi
ffere
ntat
torn
eys.
How
ever
,th
eSt
anda
rds
dono
tpr
ovid
ead
equa
tegu
idan
ceno
rin
dica
teho
wth
eat
torn
eyis
toga
inth
atgu
idan
ceap
artf
rom
the
Stan
dard
s.W
hatd
oes
the
atto
rney
doif
the
child
com
preh
ends
som
eof
the
issu
esin
the
case
but
not
othe
rs?
Wha
tif
the
child
spea
ksth
ough
tfully
abou
tso
me
aspe
ctsof
the
case
but
not
othe
rs?W
hat
ifth
ech
ildap
prec
iate
son
lysh
ort-
term
cons
eque
nces
oron
lyso
me
ofth
eal
tern
ativ
es?
The
Stan
dard
sre
quire
anal
l-or-
noth
ing
dete
rmin
atio
nof
impa
irmen
t,bu
tim
pairm
ent
itsel
fis
nota
nal
l-or-n
othi
ngco
nditi
on.
This
isa
fund
amen
tal
empi
rical
flaw
inth
eSt
anda
rds'
dist
inct
ion
betw
een
"im
pair
ed"
and
"uni
mpa
ired
"ch
ildre
n.T
heC
omm
entt
oSt
anda
rd2.
2ad
vise
sth
eat
torn
eyto
"foc
uson
the
proc
ess
bywh
icha
clie
ntre
ache
sa
posit
ion,
nott
hepo
sitio
nits
elf."4
3So
long
asth
ech
ildis
old
enou
ghto
bepr
esum
ed
«A
.A.M
.LSt
anda
rds,
supr
ano
te1,
§2
2cm
t.43
Id.
§2.
2(b)
cmt.
Inth
eco
ntex
tof
impa
ired
elde
rly
clie
nts,
one
com
men
tato
rh
as
wri
tten
:
[Ijn
reac
tion
toth
epa
terna
lism
ofthe
subs
tant
ivevie
wof
capa
city,
lawy
ers
have
falle
nba
ckon
what
they
know
best:
proc
edur
e.Th
ere
sult
isan
abstr
actv
iew
pfca
pacit
yth
atpu
rpor
tsto
rely
onan
indi
vid
ual's
deci
sion-
mak
ing
proc
esse
s.Th
ispr
oces
s-bas
edvie
wsu
ffers
from
the
impo
ssib
ility
ofco
nsid
erin
gpr
oces
sse
para
tefro
msu
bsta
nce,
and
from
ala
ckof
atte
ntio
nto
hum
anco
nnec
tion.
Aba
lanc
ed,c
onte
xtua
lvi
ewof
capa
city
cons
ider
sbot
hpr
oces
sand
subs
tanc
e,an
dsit
uate
sth
ese
nior
citi
zen
ina
netw
ork
offa
mily
,ca
re-g
iver
s,an
dpe
ers.
The
proc
ess-b
ased
stand
ard
...r
aises
ane
wse
tof
prob
lems.
The
fligh
tfro
msu
bsta
nce
leads
toa
deni
alof
cont
ext—
aqu
est
forso
me
pure
kern
elof
capa
city
free
ofth
eam
bigu
ityof
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rete
situa
tions
.W
ele
ndto
reify
capa
city
—to
mak
eit
into
ath
ing
tobe
disc
over
ed.
This
view
misc
once
ives
capa
city.
Rath
erth
anbe
ing
ath
ing,
capa
city
isa
shift
ing
netw
ork
ofva
lues
and
circ
umsta
nces
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para
ting
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tanc
efro
mpr
oces
sin
decis
ions
abou
tcap
acity
isbo
thwr
ong
and
impo
ssib
le.
Peter
Mar
gulie
s,Ac
cess,
Conn
ectio
n,an
dVo
ice:A
Cont
extu
alAp
proa
chto
Rep
rese
ntin
gSe
nior
Citiz
enso
fQue
stion
able
Capa
city,
62Fo
rdha
mL,
Rev.
1073
.
68 Journal of the American Academy of Matrimonial Lawyers
unimpaired, the lawyer must treat the child as unimpaired if thechild is able;
(a) to understand the nature and circumstances of the case, (b) to ap- .preciate the consequences of each alternative course of action, (c) to . .engage inacoherent conversation with the lawyer about the merits ofthe litigation, and (d) to express a preference that similarly situatedpersons might choose or that is derived from rational or logical reasoning ... .44
No guidance is given, however, with respect to determiningthat a particular child under the age of twelve is "unimpaired."Assuming that the same four criteria are to be applied, attorneysstill have no particular competence to assess how the child fares,under each criterion. Subjective values are just as likely to influence the attorney's decision concerning impairment as they areto influence the attorney's advocacy position for an "impaired"child client.45 Further, why is "rational or logical reasoning" theonly touchstone? Many adults make important decisions aboutimportant issues based on other domains of functioning.
As discussed more fully below, properly trained children'sattorneys may be able to make some determinations about thecompetencies of children with respect to particular issues in thecase. However, this same ability is what gives those attorneys theright'to participate in formulating the position of an "impaired"child client. To assume that the attorney is unable to perform thesecond function is inconsistent with the requirement that thesame attorney perform the first, especially in an all-or-nothingway.
1075, 1083 (1994) (footnote omitted). The same criticism can be made of theprocess-based view reflected in the Standards.
44 A.A.M.L. Standards, supra note 1. §2.2(b) cmt. (footnote omitted).45 See, e.g., Robyn-Marie Lyon, Speaking for a Child: The Role of In
dependent Counsel for Minors, 75 Cal. L. Rev. 681, 700 (1987) ("a private assessment [of the child's competence! is open to the danger that \ht attorney,either consciously or unconsciously, will judge the child to be incompetent simply because she disagrees with the child's substantive decision. The problem isexacerbated by the possibility that thechild's attorney might be inflexibly committed to specific positions regarding achild's competence, autonomy and bestinterests.")
V. n3, Summer '1995 'Impaired" Children 69
II. Differences in Representation of "Impaired"and "Unimpaired" Children Under theStandards
A: The Standards
The nature of the representation and duties owed to thecourt and client are different under the Standards depending onwhether the attorney deems the child to be ''impaired" or"unimpaired." In general, the attorney's relationship with an"unimpaired" child client is in most respects the same as it is foradult clients not under "a disability.46
However, the role of the attorney for an "impaired" childclient is vastly different. As conceptualized by the Standards, theattorney for an impaired child client should keep the client informed47 and should adduce facts which the decisionmaker
shouldconsider,48 but should not advocate a positibn with regardto the outcome of the case or contested issues.49 The Standards
advise counsel not to accept appointment as attbrney for thechild if the attorney is required to make a recommendation onthe outcome of the case.50 Similarly, attorneys serving as guardians ad litem, whether for "impaired" or "unimpaired" children,are not to make such recommendations.51 Therefore, under theStandards, attorneys representing "impaired" children (or asguardians ad litem for "impaired" or "unimpaired" children) areprimarily directed to provide factual information for the court,with no advocacy duties whatsoever.
46 iee A.A.M.L. Standards, supra note 1, §2.3 ("Unless controlling lawexpressly indicates otherwise, counsel's role in representing an unimpairedchild client is the same as when representing an unimpaired adult client.").Standard 2.6 makes some accommodations based on children's special vulnerabilities by requiring the child's attorney to protect the child by expediting theproceedings and encouraging settlement in order to reduce litigation-relatedtrauma. A.M.M.L. Standards, supra note 1, § 2.6.
47 See id. § 2.8.
"8 See id. §§ 2.11, 2.12 & 2.13.
49 See id. § 2.7.
50 See id. § 2.7 cmt. n.27.
51 See Id. § 3.2.
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