Once you have hired an attorney to represent you in a family law case, you may need to consider getting one for your child or children. In cases where custody and/or visitation are contested, the Court has the discretion to appoint an attorney to represent the child (I am going to use the singular just for convenience in this article).
This does not occur in every case; in fact, it is rare in my experience that there is an attorney appointed for a child, mostly because of the additional expense which it represents to the parties. If an attorney is appointed for a child, then the Court must also determine how to pay that attorney. While there are sometimes very limited funds available from the Court for this purpose, usually the parties are ordered share the costs of the child’s attorney. The cost is often born equally, although the Court may apportion more of the fee to one party if it is considerably wealthier than the other.
Regardless of who funds the attorney for the child, the attorney’s loyalty is to the child (not the parties) in fulfilling one of the following roles: child’s best interest attorney, child’s privilege attorney, or child’s advocate attorney.
A best interest attorney’s job is to make an independent determination as to what custody/visitation arrangement he thinks is in the child’s best interests. This is probably the most common appointment. The best interest attorney will talk with the parties, the child (usually at least once in each party’s home), and other important witnesses who know the child well and the dynamic between the parties well (for example, teachers, neighbors, relatives, etc.) While a best interest cannot interview all witnesses, he will often seek out those who have a familiarity and relationship with each party. He will also review documents relating to the child, including communications between the parties, report cards, medical reports, DSS records and the like. A best interest attorney is not bound by the child’s objectives or directives.
A child’s advocate is an attorney who represents the child much in the way that the parties’ attorneys represent them: he talks with the child, and based on his instructions from the child, advocates for that child’s stated preference. This type of appointment is most rare, in my experience.
Finally, a child’s privilege attorney (a role that can be served alone or combined with the child’s best interest attorney or child’s advocate attorney) is an attorney who is authorized to speak with the child’s therapist (I say therapist, but it could be a physician, etc.), review confidential documents, and determine whether the child’s privileged communications with the therapist can be revealed in court testimony.
Other than cost being a consideration, the Court may also consider some of the following factors in determining whether to appoint an attorney for a child:
(1) request of one or both parties;
(2) high level of conflict;
(3) inappropriate adult influence or manipulation;
(4) past or current child abuse or neglect
(5) actual or threatened family violence
(6) alcohol or other substance abuse;
(7) consideration of suspending parenting time; and
(8) any other factor which the Court considers relevant. (A complete list of the factors is found at Maryland Family Law Code Ann. §9-205.1.)
An attorney for a child is not authorized to speak directly with a party, unless that party consents to the communication.
A best interest attorney (which again is the most common appointment, in my experience) is usually required to present his position to the parties’ attorneys in advance of the date of trial and to present and explore settlement options. The farther in advance he can do this the better: that way the parties have time to consider his position carefully before preparing for trial. Trial is costly and generally worsens the relationship between the parties. And it can be very stressful for the child.
Should you consider a child’s best interest attorney, child’s privilege attorney or child’s advocate attorney if you are involved in a custody case? If you can afford the additional expense, then often the answer is Yes, but that is a discussion for you and your attorney to have. A good attorney for the child (regardless of the role he appointed to fulfill) can help to keep the child above the fray of contested litigation. And often settlement is more likely once an attorney is appointed for the child.
If both parties agree, they can select (with the input of their respective counsel) the attorney who will represent the child; but if they cannot agree on who should serve (or whether an attorney should be appointed), then the Court will have to make those determinations. In the Circuit Court for Washington County, all attorneys who represent children are required to undergo training specifically geared toward that unique task.
An attorney for a child is not warranted (or affordable) in every contested custody case. And while representing children can be the most challenging work an attorney undertakes, it can also be the most rewarding.