GPSOLO September 2009
DOMESTIC RELATIONS LAW
Make Room at Counsel Table for the Child’s Attorney
What do judges want? As a judge, I want a child’s attorney in every family law case in which custody, parenting time, or relocation is at issue. I want a child’s attorney in every case where there is high conflict, substance abuse, or domestic violence. I want children to be represented in all but the rarest of cases.
My position on this issue developed from my experience in both the juvenile and family court systems. In 1997, after serving at juvenile court for nine years, I was transferred to the family law bench. One of my first family law cases involved a custody dispute between two self- represented litigants. They finished their testimony, and I real-ized that I had no idea what the children’s wishes were or even what was in their best interest. Given my history on the juvenile bench, I was uncomfortable excluding the children from the proceedings. I took the matter under ad-visement, found an attorney willing to represent the children pro bono, and scheduled another hearing. When I re-solved the issue of custody, it was based on all the information I needed, not just on what the parents chose to pre-sent.
I quickly realized that the number of family law cases vastly exceeds the number of trained pro bono or ap-pointed-with-fees attorneys to represent children. During the next ten years on the family law bench, I tried many high-conflict cases without the benefit of counsel for children.
This indifference to the child’s voice extends to the courtroom itself. The family law courtroom is a standard courtroom with places at the table for the two parties and their attorneys. The child’s attorney has to sit behind the bar or pull up a chair at the end of a counsel table. The child’s attorney thinks the deck is stacked. The physical setup of the courtroom mirrors the traditional philosophy about the role of the child and the child’s attorney in family law cases. The notions of parental primacy and the belief that children should be seen and not heard have dominated, even though children are the focus of much of a family law case and are profoundly affected by the outcome. The child’s attorney is seen as a cause of delay and unnecessary complication. In fact, the opposite is true.
I’ve since returned to juvenile court, where every child is appointed an attorney and sometimes a guardian ad litem as well. The differences between the juvenile court and the family law court are stunning. Juvenile court is philosophically and physically welcoming to the child’s attorney. The courtroom is designed to accommodate all parties and all counsel. In almost every state, children are automatically appointed an attorney to represent their po-sition and interests in the case. No action is taken in the absence of the child’s attorney.
In contrast, children must fight to be heard in family law cases, where often decisions are made for and about them without the judge knowing their position. Many children believe that if only they could talk with the judge, everything would change. Children are surprisingly well informed about the process. Children want lawyers to help them; they understand what lawyers do, and they know that a lawyer will tell the judge what they think. When children have no say in what happens to them, depression can result. In high-conflict divorces, children face additional stress. These children are caught between their parents, and they need an advocate to speak on their behalf.
Children’s attorneys are enormously helpful to judges. Judges want to make the best possible decisions for chil-dren and families based on all relevant information. Generally, judges are required to consider the child’s wishes in cases involving custody, parenting time, and relocation. If these wishes are not addressed in the judge’s decision, there must be an explanation. More importantly, family law judges know that a well-crafted, thoughtful, and com-plete custody, parenting-time, or relocation decision can prevent repeated litigation and can reduce the stress on par-ents, children, and the court.
Emerging family law trends make the role of the child’s attorney even more critical. More than 80 percent of family law cases now involve one or more self-represented litigants. Nearly 40 percent of children born in the United States are born to never-married parents. Both self- represented litigants and never-married parents present special challenges to the court. Appointing an attorney to represent the child in a case with at least one self-represented litigant can make a huge difference in the way the case proceeds. Rather than slowing down the case, as feared by many family law judges and practitioners, children’s attorneys can facilitate the resolution of complex custody, parenting-time, and relocation issues by clearly representing the child’s position and getting the parties to the table for discussion.
Never-married parents present different but equally compelling challenges to the court. Statistics reveal that an increasing number of these parents are older and better educated and, therefore, more likely to use the court to es-tablish and enforce custody, parenting time, and child support. Further, research suggests that never-married relationships are more likely to dissolve than married relationships, resulting in litigation about custody, parenting time, and child support.
Attorneys who represent children should be both skilled advocates and acutely aware of their ethical obligations. The appointment order must be clear and specific. There has been great confusion about the differences between the role of the child’s attorney and the guardian ad litem. Judges must decide whether they want to know the child’s position or what is in the child’s best interest and craft an appointment order accordingly.
I suggest that states adopt the American Bar Association Standards of Practice for Lawyers Representing Children in Custody Cases, as Arizona did in 2006. The standards are simple, detailed, and thorough, and they provide guidance to both judges and attorneys about what is expected in a case when the child is represented. Whether appointed as a child’s attorney or best-interest attorney, the attorney is first and foremost an attorney. There is no report writing or testifying.
When I appoint an attorney to represent a child, I ask the attorney these questions at the first hearing when all parties and counsel are present: (1) Have you met with your client? (2) Have you discussed the case in general and the particular issue at hand? (3) Has your client given you permission to state his or her position? (4) Would the client like to come to the courthouse to see the courtroom and meet me? (5) Does the client have specific requests of the other parties that he or she would like addressed in an order, such as advising the parents to stop fighting or disparaging each other in front of the client? (6) Have the other attorneys (or parties, if unrepresented) remembered to copy you with all motions, memoranda, disclosure documents, proposed settlement discussions, and notice of court hearings?
Every day, family law judges are required to make critical decisions involving children and families, often with little reliable information. The child’s attorney can fill the very large gap between what is often presented in court and what the judge really needs to know.
- This article is an abridged and edited version of one that originally appeared on page 31 of Family Advocate, Fall 2008 (31:2).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/family.
- Periodicals: Family Advocate, quarterly magazine with three issues that include how-to articles and current trends in family law for lawyers, and a fourth “Client Manual” issue for lawyers and their clients covering aspects of the divorce process; Family Law Quarterly, a scholarly journal that offers an analytical view of family law issues, including “Family Law in the Fifty States.”
- Books and Other Recent Publications: The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases; The Family Lawyer’s Guide to Bankruptcy, 2d ed.; The Indian Child Welfare Act Handbook, 2d ed.; The Family Lawyer’s Guide to Stock Options; The Military Divorce Handbook; Assisted Reproductive Technology; How to Build and Manage a Family Law Practice; Creating Effective Parenting Plans; The Divorce Trial Manual.
- CLE and Other Educational Programs: The ABA Family Law Trial Advocacy Institute offers an intense learning experience and is the nation’s premier trial training program for family lawyers. Other CLE programming includes teleconferences, spring and fall conferences, and our popular Hot Tips program at the ABA Annual Meeting. Past program materials are available for purchase on our website.
- Member Benefits: Discount on Family Law Section publications and CLE materials; Committees on topics such as adoption, custody, law practice management, and reproductive and genetic technologies; Case Update, a monthly digest of family law case decisions around the nation; monthly eNewsletter.
Karen S. Adam is court/commissioner/judge pro tempore in the Pima County Superior Court Juvenile Division in Tucson, Ari-zona. She may be reached at email@example.com.