American Bar Association Family Law Section

Standards of Practice for Lawyers Representing

Children in Custody Cases

Draft approved by Family Law Section Council, May 2, 2003

The views expressed herein have not been approved by the House of Delegates or
the Board of Governors of the American Bar Association and, accordingly, should
not be construed as representing the policy of the American Bar Association.

Table of Contents: F. End of Representation

I. INTRODUCTION V. BEST INTERESTS ATTORNEYS

II. SCOPE AND DEFINITIONS A. Ethics

B. Confidentiality
A. Scope C. Limited Appointments
B. Definitions D. Explaining Role
E. Investigations
III. DUTIES OF ALL LAWYERS F. Advocating Best Interests
G. Appeals
A. Accepting the Appointment
B. Lawyers Roles VI. COURTS
C. Independence
D. Initial Tasks A. Appointment of Lawyers
E. Meeting With the Child B. Training
F. Pretrial Responsibilities C. Compensation
G. Hearings D. Caseloads
H. Appeals E. Physical Accommodations
I. Enforcement F. Immunity
J. End of Representation
APPENDIX: MODEL ORDERS
IV. CHILDS ATTORNEYS
A. Child Representation
A. Ethics and Confidentiality Appointment Order
B. Informing and Counseling the Client B. Order for Access to Confidential
C. Client Decisions Information
D. Appeals
E. Obligations after Initial Disposition

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I. INTRODUCTION

Children deserve to have custody proceedings conducted in the manner least

harmful to them and most likely to provide judges with the facts needed to decide the
case. By adopting these Standards, the American Bar Association sets a standard for
good practice and consistency in the appointment and performance of lawyers for
children in custody cases.

Unfortunately, few jurisdictions have clear standards to tell courts and lawyers
when or why a lawyer for a child should be appointed, or precisely what the appointee
should do. Too little has been done to make the public, litigants, domestic relations
attorneys, the judiciary, or childrens lawyers themselves understand childrens
lawyers roles, duties and powers. Childrens lawyers have had to struggle with the very
real contradictions between their perceived roles as lawyer, protector, investigator, and
surrogate decisionmaker. This confusion breeds dissatisfaction and undermines public
confidence in the legal system. These Standards distinguish two distinct types of
lawyers for children: (1) The Childs 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, who independently
investigates, assesses and advocates the childs best interests as a lawyer. While some
courts in the past have appointed a lawyer, often called a guardian ad litem, to report
or testify on the childs best interests and/or related information, this is not a lawyers
role under these Standards.
These Standards seek to keep the best interests of children at the center of courts

attention, and to build public confidence in a just and fair court system that works to
promote the best interests of children. These Standards promote quality control,
professionalism, clarity, uniformity and predictability. They require that: (1) all
participants in a case know the duties, 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 support and cooperation of the courts and
other institutions. The American Bar Association commends these Standards to all
jurisdictions, and to individual lawyers, courts, and child representation programs.

II. SCOPE AND DEFINITIONS

A. Scope

These Standards apply to the appointment and performance of lawyers serving

as advocates for children or their interests in any case where temporary or
permanent legal custody, physical custody, parenting plans, parenting time,
access, or visitation are adjudicated, including but not limited to divorce,
parentage, domestic violence, contested adoptions, and contested private
guardianship cases. Lawyers representing children in abuse and neglect cases
should follow the ABA Standards of Practice for Repre senting a Child in Abuse
and Neglect Cases (1996).

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 B. Definitions

1. Childs Attorney: A lawyer who provides independent legal counsel for a

child and who owes the same duties of undivided loyalty, confidentiality, and
competent representation as are due an adult client.

2. Best Interests Attorney: A lawyer who provides independent legal services

for the purpose of protecting a childs best interests, without being bound by
the childs directives or objectives.

Commentary

These Standards and these definitions apply to lawyers fitting these descriptions
regardless of the different titles used in various states, and regardless of whether the lawyer
is appointed by the court or retained by the child.

A lawyer should be either a Childs Attorney or a Best Interests Attorney. The duties
common to both roles are found in Part III of these Standards. The unique duties of each are
described separately in Parts IV and V. The essential distinction between the two lawyer
roles is that the Best Interests Attorney investigates and advocates the best interests of the
child as a lawyer in the litigation, while the Childs Attorney is a lawyer who represents the
child as a client. Neither kind of lawyer is a witness. Form should follow function in
deciding which kind of lawyer to appoint. The role and duties of the lawyer should be
tailored to the reasons for the appointment and the needs of the child.

These Standards do not use the term Guardian Ad Litem. The role of guardian ad
litem has become too muddled through different usages in different states, with varying
connotations. It is a venerable legal concept that has often been stretched beyond recognition
to serve fundamentally new functions, such as parenting coordinator, referee, facilitator,
arbitrator, evaluator, mediator and advocate. Asking one Guardian Ad Litem to perform
several roles at once, to be all things to all people, is a messy, ineffective expedient. A court
seeking expert or lay opinion testimony, written reports, or other non-traditional services
should appoint an individual for that purpose, and make clear that that person is not serving
as a lawyer, and is not a party. This person can be either a non-lawyer, or a lawyer who
chooses to serve in a volunteer non-lawyer capacity.

III. DUTIES OF ALL LAWYERS FOR CHILDREN

In addition to their general ethical duties as lawyers, and the specific duties set out
in Parts IV and V, Childs Attorneys and Best Interests Attorneys also have the duties
outlined in this section.
A. Accepting Appointment

The lawyer should accept an appointment only with a full understanding of the

issues and the functions to be performed. If the appointed lawyer considers parts
of the appointment order confusing or incompatible with his or her ethical

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 duties, the lawyer should (1) decline the appointment, or (2) inform the court of
the conflict and ask the court to clarify or change the terms of the order, or
(3) both.
B. Lawyers Roles

A lawyer appointed as a Childs Attorney or Best Interests Attorney should not

play any other role in the case, and should not testify, file a report, or make
recommendations.

Commentary

Neither kind of lawyer should be a witness, which means that the lawyer should not
be cross-examined, and more importantly should neither testify nor make a written or oral
report or recommendation to the court, but instead should offer traditional evidence-based
legal arguments such as other lawyers make. However, explaining what result a client wants,
or proffering what one hopes to prove, is not testifying; those are things all lawyers do.

If these Standards are properly applied, it will not be possible for courts to make a
dual appointment, but there may be cases in which such an appointment was made before
these Standards were adopted. The Childs Attorney role involves a confidential relationship
with privileged communications. Because the child has a right to confidentiality and
advocacy of his or her position, the Childs Attorney can never abandon this role while
remaining involved in the case in any way. Once a lawyer has a lawyer-client relationship
with a minor, he or she cannot and should not assume any other role for the child, especially
as Best Interests Attorney or as a witness who investigates and makes a recommendation.

C. Independence
The lawyer should be independent from the court and other participants in the

litigation, and unprejudiced and uncompromised in his or her independent

action. The lawyer has the right and the responsibility to exercise independent
professional judgment in carrying out the duties assigne d by the court, and to
participate in the case as fully and freely as a lawyer for a party.

Commentary

The lawyer should not prejudge the case. A lawyer may receive payment from a
court, a government entity, or even from a parent, relative, or other adult so long as the
lawyer retains the full authority for independent action.
D. Initial Tasks

Immediately after being appointed, the lawyer should review the file. The lawyer

should inform other parties or counsel of the appointment, and that as counsel of
record he or she should receive copies of pleadings and discovery exchanges, and

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 reasonable notification of hearings and of major changes of circumstances
affecting the child.

E. Meeting With the Child

The lawyer should meet with the child, adapting all communications to the

childs age, level of education, cognitive development, cultural background and

degree of language acquisition, using an interpreter if necessary. The lawyer
should inform the child about the court system, the proceedings, and the
lawyers responsibilities. The lawyer should elicit and assess the childs views.

Commentary

Establishing and maintaining a relationship with a child is the foundation of

representation. Competent representation requires a child-centered approach and
developmentally appropriate communication. All appointed lawyers should meet with the
child 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 and
developmental levels. Meeting with the child also allows the lawyer to assess the childs
circumstances, often leading to a greater understanding of the case, which may lead to
creative solutions in the childs interest.

The nature of the legal proceeding or issue should be explained to the child in a
developmentally appropriate manner. The lawyer must speak clearly, precisely, and in terms
the child can understand. A child may not understand legal terminology. Also, because of a
particular childs developmental limitations, the lawyer may not completely understand what
the child says. Therefore, the lawyer must learn how to ask developmentally appropriate,
non-suggestive questions and how to interpret the childs responses. The lawyer may work
with social workers or other professionals to assess a childs developmental abilities and to
facilitate communication.

While the lawyer should always take the childs point of view into account, caution
should be used because the childs stated views and desires may vary over time or may be
the result of fear, intimidation and manipulation. Lawyers may need to collaborate with
other professionals to gain a full understanding of the childs needs and wishes.

F. Pretrial Responsibilities

The lawyer should:

1. Conduct thorough, continuing, and independent discovery and

investigations.

2. Develop a theory and strategy of the case to implement at hearings, including

presentation of factual and legal issues.

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 3. Stay apprised of other court proceedings affecting the child, the parties and
other household members.

4. Attend meetings involving issues within the scope of the appointment.

5. Take any necessary and appropriate action to expedite the proceedings.

6. Participate in, and, when appropriate, initiate, negotiations and mediation.

The lawyer should clarify, when necessary, that she or he is not acting as a
mediator; and a lawyer who participates in a mediation should be bound by
the confidentiality and privilege rules governing the mediation.

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 to pursue issues on behalf of the child, administratively or judicially,
even if those issues do not specifically arise from the court appointment.

Commentary

The lawyer should investigate the facts of the case to get a sense of the people
involved and the real issues in the case, just as any other lawyer would. This is necessary
even for a Childs Attorney, whose ultimate task is to seek the clients objectives. Best
Interests Attorneys have additional investigation duties described in Standard V-E.

By attending relevant meetings, the lawyer can present the childs perspective, gather
information, and sometimes help negotiate a full or partial settlement. The lawyer may not
need to attend if another person involved in the case, such as a social worker, can obtain
information or present the childs perspective, or when the meeting will not be materially
relevant to any issues in the case.

The lawyer is in a pivotal position in negotiations. The lawyer should attempt to

resolve the case in the least adversarial manner possible, considering whether therapeutic
intervention, parenting or co-parenting education, mediation, or other dispute resolution
methods are appropriate. The lawyer may effectively assist negotiations of the parties and
their lawyers by focusing on the needs of the child, including where appropriate the impact
of domestic violence. Settlement frequently obtains at least short-term relief for all parties
involved and is often the best way to resolve a case. The lawyers role is to advocate the
childs interests and point of view in the negotiation process. If a party is legally
represented, it is unethical for a lawyer to negotiate with the party directly without the
consent of the partys lawyer.

Unless state law explicitly precludes filing pleadings, the lawyer should file any
appropriate pleadings on behalf of the child, including responses to the pleadings of other

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parties, to ensure that appropriate issues are properly before the court and expedite the
courts consideration of issues important to the childs interests. Where available to litigants
under state laws or court rules or by permission of the court, relief requested may include,
but is not limited to: (1) A mental or physical examination of a party or the child; (2) A
parenting, custody or visitation evaluation; (3) An increase, decrease, or termination of
parenting time; (4) Services for the child or family; (5) Contempt for non-compliance with a
court order; (6) A protective order concerning the childs privileged communications;
(7) Dismissal of petitions or motions.

The childs interests may be served through proceedings not connected with the case
in which 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 public
benefits access; (4) Mental health proceedings; (5) Visitation, access or parenting time with
parents, 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 the
childs tangible or intangible property.

G. Hearings

The lawyer should participate actively in all hearings and conferences with the
court on issues within the scope of the appointment. Specifically, the lawyer
should:

1. Introduce herself or himself to the court as the Childs Attorney or Best

Interests Attorney at the beginning of any hearing.

2. Make appropriate motions, including motions in limine and evidentiary

objections, 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
the child with the places, people, proce dures, and questioning that the child
will be exposed 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.

6. Where appropriate, introduce evidence and make arguments on the childs

competency to testify, or the reliability of the childs testimony or out-of-
court statements. The lawyer should be familiar with the current law and
empirical knowledge about childrens competency, memory, and
suggestibility.

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 7. Make a closing argument, proposing specific findings of fact and conclusions
of law.

8. Ensure that a written order is made, and that it conforms to the courts oral
rulings and statutorily required findings and notices.

Commentary

Although the lawyers position may overlap with the position of one or more parties,
the lawyer should be prepared to participate fully in any proceedings and not merely defer to
the other parties. The lawyer should address the childs interests, describe the issues from the
childs perspective, keep the case focused on the childs needs, discuss the effect of various
dispositions on the child, and, when appropriate, present creative alternative solutions to the
court.

A brief formal introduction should not be omitted, because in order to make an

informed decision on the merits, the court must be mindful of the lawyers exact role, with
its specific duties and constraints. Even though the appointment order states the nature of the
appointment, judges should be reminded, at each hearing, which role the lawyer is playing.
If there is a jury, a brief explanation of the role will be needed.

The lawyers preparation of the child should include attention to the childs
developmental needs and abilities. The lawyer should also prepare the child for the
possibility that the judge may render a decision against the childs wishes, explaining that
such a result would not be the childs fault.

If the child does not wish to testify or would be harmed by testifying, the lawyer
should seek a stipulation of the parties not to call the child as a witness, or seek a protective
order from the court. The lawyer should seek to minimize the adverse consequences by
seeking any appropriate accommodations permitted by local law so that the childs views are
presented to the court in the manner least harmful to the child, such as having the testimony
taken informally, in chambers, without the parents present. The lawyer should seek any
necessary assistance from the court, including location of the testimony, determination of
who will be present, and restrictions on the manner and phrasing of questions posed to the
child. The child 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 the law and research
regarding childrens testimony, memory, and suggestibility. The information a child gives is
often misleading, especially if adults have not understood how to ask children
developmentally appropriate questions and how to interpret their answers properly. The
lawyer must become skilled at recognizing the childs developmental limitations. It may be
appropriate to present expert testimony on the issue, or have an expert present when a young
child is directly involved in the litigation, to point out any developmentally inappropriate
phrasing of questions.

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 The competency issue may arise in the unusual circumstance of the child being called
as a live witness, as well as when the childs input is sought by other means such as in-
chambers meetings, closed-circuit television testimony, etc. Many jurisdictions have
abolished presumptive ages of competency and replaced them with more flexible, case-by-
case analyses. Competency to testify involves the abilities to perceive and relate. If necessary
and appropriate, the lawyer should present expert testimony to establish competency or
reliability or to rehabilitate any impeachment of the child on those bases.

H. Appeals

1. If appeals on behalf of the child are allowed by state law, and if it has been
decided pursuant to Standard IV-D or V-G that such an appeal is necessary,
the lawyer should take all steps necessary to perfect the appeal and seek
appropriate temporary orders or extraordinary writs necessary to protect
the interests of the child during the pendency of the appeal.

2. The lawyer should participate in any appeal filed by another party,

concerning issues relevant to the child and within the scope of the
appointment, unless discharged.

3. When the appeals courts 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 some
jurisdictions, the lawyers appointment does not include representation on appeal, but if the
childs interests are affected by the issues raised in the appeal, the lawyer should seek an
appointment on appeal or seek appointment of appellate counsel.

As with other court decisions, the lawyer should explain in terms the child can
understand the nature and consequences of the appeals courts decision, whether there are
further appellate remedies, and what more, if anything, will be done in the trial court
following the decision.

I. Enforcement

The lawyer should monitor the implementation of the courts orders and
address any non-compliance.

J. End of representation

When the representation ends, the lawyer should inform the child in a
developmentally appropriate manner.

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IV. CHILDS ATTORNEYS

A. Ethics and Confidentiality

1. Childs Attorneys are bound by their states ethics rules in all matters.

2. A Childs Attorney appointed to represent two or more children should

remain alert to the possibility of a conflict that could require the lawyer to
decline representation or withdraw from representing all of the children.

Commentary

The child is an individual with independent views. To ensure that the childs
independent voice is heard, the Childs Attorney should advocate the childs articulated
position, and owes traditional duties to the child as client, subject to Rules 1.2(a) and 1.14 of
the Model Rules of Professional Conduct (2002).

The Model Rules of Professional Conduct (2002) (which in their amended form may
not yet have been adopted in a particular state) impose a broad duty of confidentiality
concerning all information relating to the representation of a client, but they also modify
the traditional exceptions to confidentiality. Under Model Rule 1.6 (2002), a lawyer may
reveal information without the clients informed consent to the extent the lawyer reasonably
believes necessary to prevent reasonably certain death or substantial bodily harm, or to
comply with other law or a court order, or when the disclosure is impliedly authorized in
order to carry out the representation. Also, according to Model Rule 1.14(c) (2002), the
lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but
only to the extent reasonably necessary to protect the client's interests when acting under
Rule 1.14 to protect a client with diminished capacity who is at risk of substantial
physical, financial or other harm.

Model Rule 1.7 (1)(1) (2002) provides that a lawyer shall not represent a client if ...
the representation of one client will be directly adverse to another client ... . Some diversity
between siblings views and priorities does not pose a direct conflict. But when two siblings
aim 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 interest
exists if there is a significant risk that a lawyers ability to consider, recommend or carry out
an appropriate course of action for the client will be materially limited ... a lawyer asked to
represent several individuals ... is likely to be materially limited in the lawyers ability to
recommend or advocate all possible positions that each might take because of the lawyers
duty of loyalty to the others. ... The critical questions are the likelihood that a difference in
interests will eventuate and, if it does, whether it will materially interfere with the lawyers
independent professional judgment in considering alternatives or foreclose courses of action
that reasonably should be pursued on behalf of the client.

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 B. Informing and Counseling the Client

In a developmentally appropriate manner, the Childs Attorney should:

1. Meet with the child upon appointment, before court hearings, when apprised
of emergencies 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 each
hearing.

3. Advise the child and provide guidance, communicating in a way that

maximizes the childs 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-
person meetings allow the lawyer to explain to the child what is happening, what alternatives
might be available, and what will happen next.
The Childs Attorney has an obligation to explain clearly, precisely, and in terms the

client can understand, the meaning and consequences of the clients choices. A child may not
understand the implications of a particular course of action. The lawyer has a duty to explain
in a developmentally appropriate way such information as will assist the child in having
maximum input in decision-making. The lawyer should inform the child of the relevant facts
and applicable laws and the ramifications of taking various positions, which may include the
impact of such decisions on other family members or on future legal proceedings. The
lawyer may express an opinion concerning the likelihood of the court or other parties
accepting particular positions. The lawyer may inform the child of an experts
recommendations germane to the issue.
As in any other lawyer/client relationship, the lawyer may express his or her

assessment of the case, and of the best position for the child to take, and the reasons
underlying such recommendation, and may counsel against the pursuit of particular goals
sought by the client. However, a child may agree with the lawyer for inappropriate reasons.
A lawyer must remain aware of the power dynamics inherent in adult/child relationships,
recognize that the child may be more susceptible to intimidation and manipulation than some
adult clients, and strive to detect and neutralize those factors. The lawyer should carefully
choose the best time to express his or her assessment of the case. The lawyer needs to
understand what the child knows, and what factors are influencing the childs decision. The
lawyer should attempt to determine from the childs opinion and reasoning what factors have
been most influential or have 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

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information necessary to make an informed decision, including advice and guidance. On the
other hand, the lawyer has a duty not to overbear the will of the client. While the lawyer may
attempt to persuade the child to accept a particular position, the lawyer may not advocate a
position contrary to the childs expressed position except as provided by the applicable
ethical standards.
Consistent with the rules of confidentiality and with sensitivity to the childs privacy,

the lawyer should consult with the childs therapist and other experts and obtain appropriate
records. For example, a childs therapist may help the child to understand why an expressed
position is dangerous, foolish, or not in the childs best interests. The therapist might also
assist the lawyer in understanding the childs perspective, priorities, and individual needs.
Similarly, significant persons in the childs life may educate the lawyer about the childs
needs, priorities, and previous experiences.
As developmentally appropriate, the Childs Attorney should consult the child prior

to any 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, the
lawyer should explain whether the order may be modified at another hearing, or whether the
actions of the parties may affect how the order is carried out.

C. Client Decisions
The Childs Attorney should abide by the clients decisions about the objectives

of the representation with respect to each issue on which the child is competent
to direct the lawyer, and does so. The Childs Attorney should pursue the
childs expressed objectives, unless the child requests otherwise, and follow the
childs direction, throughout the case.

Commentary

The child is entitled to determine the overall objectives to be pursued. The Childs
Attorney may make certain decisions about the manner of achieving those objectives,
particularly on procedural matters, as any adults lawyer would. These Standards do not
require the lawyer to consult with the child on matters which would not require consultation
with an adult client, nor to discuss with the child issues for which the childs developmental
limitations make it not feasible to obtain the childs direction, as with an infant or preverbal
child.

1. The Childs Attorney should make a separate determination whether the

child has diminished capacity pursuant to Mode l Rule 1.14 (2000) with
respect to each issue in which the child is called upon to direct the
representation.

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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 contextual, incremental, and may be intermittent. The childs ability to
contribute to a determination of his or her position is functional, depending upon the
particular position and the circumstances prevailing at the time the position must be
determined. Therefore, a child may be able to determine some positions in the case but not
others. Similarly, a child may be able 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

Attorney should make a good faith effort to determine the child's wishes, and
advocate according to those wishes if they are expressed. If a child does not
or will not express objectives regarding a particular issue or issues, the
Child's Attorney should determine and advocate the child's legal interests or
request the appointment of a Best Interests Attorney.

Commentary

There are circumstances in which a child is unable to express any positions, as in the
case of a preverbal child. Under such circumstances, the Childs Attorney should represent
the childs legal interests or request appointment of a Best Interests Attorney. Legal
interests are distinct from best interests and from the childs objectives. Legal interests
are interests of the child that are specifically recognized in law and that can be protected
through the courts. A childs legal interests could include, for example, depending on the
nature of the case, a special needs childs right to appropriate educational, medical, or mental
health services; helping assure that children needing residential placement are placed in the
least restrictive setting consistent with their needs; a childs child support, governmental and
other financial benefits; visitation with siblings, family members, or others the child wishes
to maintain contact with; and a childs due process or other procedural rights.
The childs failure to express a position is different from being unable to do so, and

from directing the lawyer not to take a position on certain issues. The child may have no
opinion with respect to a particular issue, or may delegate the decision-making authority. The
child may not want to assume the responsibility of expressing a position because of loyalty
conflicts or the desire not to hurt one of the parties. In that case, the lawyer is free to pursue
the objective that appears to be in the clients legal interests based on information the lawyer
has, and positions the child has already expressed. A position chosen by the lawyer should
not contradict or undermine other issues about which the child has expressed a viewpoint.
However, before reaching that point the lawyer should clarify with the child whether the
child wants the lawyer to take a position, or to remain silent with respect to that issue, or
wants the point of view expressed only if the party is out of the room. The lawyer is then
bound by the childs directive.

3. If the Childs Attorney determines that pursuing the childs expressed

objective would put the child at risk of substantial physical, financial or

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 other harm, and is not merely contrary to the lawyers opinion of the childs
interests, the lawyer may request appointment of a separate Best Interests
Attorney and continue to represent the childs expressed position, unless the
childs position is prohibited by law or without any factual foundation. The
Childs Attorney should not reveal the reason for the request for a Best
Interests Attorney, which would compromise the childs position, unless such
disclosure is authorized by the ethics rule on confidentiality that is in force in
the state.

Commentary

One of the most difficult ethical issues for lawyers representing children occurs when
the child is able to express a position and does so, but the lawyer believes that the position
chosen is wholly inappropriate or could result in serious injury to the child. This is
particularly likely to happen with respect to an abused child whose home is unsafe, but who
desires to remain or return home. A child may desire to live in a dangerous situation because
it is all he or she knows, because of a feeling of blame or of responsibility to take care of a
parent, or because of threats or other reasons to fear the parent. The child may choose to deal
with a known situation rather than risk the unknown.

It should be remembered in this context that the lawyer is bound to pursue the clients
objectives only through means permitted by law and ethical rules. The lawyer may be
subject personally to sanctions for taking positions that are not well grounded in fact and
warranted by existing law or a good faith argument for the extension, modification, or
reversal of existing law.
In most cases the ethical conflict involved in asserting a position which would

seriously endanger the child, especially by disclosure of privileged information, can be

resolved through the lawyers counseling function, if the lawyer has taken the time to
establish rapport with the child and gain that childs trust. While the lawyer should be
careful not to apply undue pressure to a child, the lawyers advice and guidance can often
persuade the child to change a dangerous or imprudent position or at least identify alternative
choices in case the court denies the childs first choice.

If the child cannot be persuaded, the lawyer has a duty to safeguard the childs
interests by requesting appointment of a Best Interests Attorney. As a practical matter, this
may not adequately protect the child if the danger to the child was revealed only in a
confidential disclosure to the lawyer, because the Best Interests Attorney may never learn of
the disclosed danger.

Model Rule 1.14 (2002) provides that when the lawyer reasonably believes that the
client has diminished capacity, is at risk of substantial physical, financial or other harm
unless action is taken and cannot adequately act in the clients own interest, the lawyer may
take reasonably necessary protective action ... the lawyer is impliedly authorized under Rule
1.6(a) to reveal information about the client, but only to the extent reasonably necessary to
protect the clients interests.

14
 If there is a substantial danger of serious injury or death, the lawyer must take the

minimum steps which would be necessary to ensure the childs safety, respecting and
following the childs direction to the greatest extent possible consistent with the childs
safety and ethical rules. States that do not abrogate the lawyer-client privilege or
confidentiality, or mandate reporting in cases of child abuse, may permit reports
notwithstanding privilege.
4. The Childs Attorney should discuss with the child whether to ask the judge

to meet with the child, and whether to call the child as a witness. The
decision should include consideration of the childs needs and desires to do
either of these, any potential repercussions of such a decision or harm to the
child from testifying or being involved in case, the necessity of the childs
direct testimony, the availability of other evidence or hearsay exceptions
which may substitute for direct testimony by the child, and the childs
developmental ability to provide direct testimony and withstand cross-
examination. Ultimately, the Childs Attorney is bound by the childs
direction concerning testifying.

Commentary

Decisions about the childs testifying should be made individually, based on the
circumstances. If the child has a therapist, the attorney should consult the therapist about the
decision and for help in preparing the child. In the absence of compelling reasons, a child
who 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 Childs
Attorney should consider and discuss with the child, as developmentally
appropriate, the possibility of an appeal. If the child, after consultation, wishes
to appeal the order, and the appeal has merit, the Childs Attorney should
appeal. If the Childs Attorney determines that an appeal would be frivolous or
that he or she lacks the expertise necessary to handle the appeal, he or she
should notify the court and seek to be discharged or replaced.

Commentary

The lawyer should explain not only any legal possibility of an appeal, but also the
ramifications of filing an appeal, including delaying conclusion of the case, and what will
happen pending a final decision.

E. Obligations after Initial Disposition

The Childs Attorney should perform, or when discharged, seek to ensure,

continued representation of the child at all further hearings, including at

15
 administrative or judicial actions that result in changes to the childs placement
or services, so long as the court maintains its jurisdiction.

Commentary

Representing a child continually presents new tasks and challenges due to the passage
of time and the changing needs of the child. The bulk of the Childs Attorneys work often
comes after the initial hearing. The Childs Attorney should stay in touch with the child,
with the parties or their counsel, and any other caretakers, case workers, and service
providers throughout the term of appointment to attempt to ensure that the childs needs are
met and that the case moves quickly to an appropriate resolution.

F. End of Representation

The Childs Attorney should discuss the end of the legal representation with the
child, what contacts, if any, the Childs Attorney and the child will continue to
have, and how the child can obtain assistance in the future, if necessary.

V. BEST INTERESTS ATTORNEYS

A. Ethics

Best Interests Attorneys are be bound by their states ethics rules in all matters
except as dictated by the absence of a traditional attorney-client relationship
with the child and the particular requirements of their appointed tasks. Even
outside of an attorney-client relationship, all lawyers have certain ethical duties
toward the court, parties in a case, the justice system, and the public.

Commentary

Siblings with conflicting views do not pose a conflict of interest for a Best Interests
Attorney, because such a lawyer is not bound to advocate a clients objective. A Best
Interests Attorney in such a case should report the relevant views of all the children in
accordance with Standard V-F-3, and advocate the childrens best interests in accordance
with Standard V-F-1.

B. Confidentiality

A childs communications with the Best Interests Attorney are subject to state
ethics rules on lawyer-client confidentiality, except that the lawyer may also use
the childs confidences for the purposes of the representation without disclosing
them.

16
Commentary

ABA Model Rule 1.6(a) bars any release of information except for disclosures that
are impliedly authorized in order to carry out the representation. Under DR 4-101(C)(2), a
lawyer may reveal confidences when required by law or court order. As for
communications that are not subject to disclosure under these or other applicable ethics rules,
a Best Interests Attorney may use them to further the childs best interests, without
disclosing them. The distinction between use and disclosure means, for example, that if a
child tells the lawyer that a parent takes drugs; the lawyer may seek and present other
evidence of the drug use, but may not reveal that the initial information came from the child.
For more discussion of exceptions to confidentiality, see the Commentary to Standard IV-A.

C. Limited Appointments

If the court appoints the Best Interests Attorney to handle only a specific issue,
the Best Interests Attorneys 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 to the child that the Best Interests Attorney will (1) investigate and
advocate the childs best interests, (2) will investigate the childs views relating
to the case and will report them to the court unless the child requests that they
not be reported, and (3) will use information from the child for those purposes,
but (4) will not necessarily advocate what the child wants as a lawyer for a client
would.

E. Investigations

The Best Interests Attorney should conduct thorough, continuing, and

independent investigations, including:

1. Reviewing any court files of the child, and of siblings who are minors or are
still in the home, potentially relevant court files of parties and other
household members, and case-related records of any social service agency
and other service providers;

2. Reviewing childs social services records, if any, mental health records

(except as otherwise provided in Standard VI-A-4), drug and alcohol-related
records, medical records, law enforcement records, school records, and other
records relevant 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 of their lawyers;

17
 5. Interviewing individuals significantly involved with the child, who may in the
lawyers 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 counsels descriptions and characterizations of it;

7. Staying apprised of other court proceedings affecting the child, the parties
and other household members.

Commentary

Relevant files to review include those concerning child protective services,

developmental disabilities, juvenile delinquency, mental health, and educational agencies.
These records can provide a more complete context for the current problems of the child and
family. Information in the files may suggest additional professionals and lay witnesses who
should be contacted.

Though courts should order automatic access to records, the lawyer may still need to
use subpoenas or other discovery or motion procedures to obtain the relevant records,
especially those which pertain to the parties.

Meetings with the children and all parties are among the most important elements of
a competent investigation. However, there may be a few cases where a partys lawyer will
not allow the Best-Interests Attorney to communicate with the party. Model Rule 4.2
prohibits such contact without consent of the partys lawyer. In some such cases, the Best-
Interests Attorney may be able to obtain permission for a meeting with the partys lawyer
present. When the party has no lawyer, Model Rule 4.3 allows contact but requires
reasonable efforts to correct any apparent misunderstanding of the Best-Interests Attorneys
role.

The parties lawyers may have information not included in any of the available
records. They can provide information 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 childs 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 responsibilities of both.

18
 F. Advocating the Childs Best Interests

1. Any assessme nt of, or argument on, the childs best interests should be based
on objective criteria as set forth in the law related to the purposes of the
proceedings.

2. Best Interests Attorneys should bring to the attention of the court any facts
which, when considered in context, seriously call into question the
advisability of any agreed settlement.

3. At hearings on custody or parenting time, Best Interests Attorneys should

present the childs expressed desires (if any) to the court, except for those
that the child expressly does not want presented.

Commentary

Determining a childs best interests is a matter of gathering and weighing evidence,

reaching factual conclusions and then applying legal standards to them. Factors in
determining a childs interests will generally be stated in a states statutes and case law, and
Best Interests Attorneys must be familiar with them and how courts apply them. A childs
desires are usually one of many factors in deciding custody and parenting time cases, and the
weight given them varies with age and circumstances.

A Best Interests Attorney is functioning in a nontraditional role by determining the

position to be advocated independently of the client. The Best Interests Attorney should base
this determination, however, on objective criteria concerning the childs needs and interests,
and not merely on the lawyers personal values, philosophies, and experiences. A best-
interests case should be based on the states governing statutes and case law, or a good faith
argument 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 in
terms of governing law on the best interests of the child. The trier of fact needs to understand
any such theory in order to make an informed decision in the case.

The lawyer must consider the childs individual needs. The childs various needs and
interests may be in conflict and must be weighed against each other. The childs
developmental level, including his or her sense of time, is relevant to an assessment of needs.
The lawyer may seek the advice and consultation of experts and other knowledgeable people
in 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 the settlement would endanger the child and that the court would not approve
the settlement were it aware of certain facts, the Best Interests Attorney should bring those
facts to the courts attention. This should not be done by ex parte communication. The Best
Interests Attorney should ordinarily discuss her or his concerns with the parties and counsel
in an attempt to change the settlement, before involving the judge.

19
 G. Appeals

Where appeals on behalf of the child are permitted by state law, the Best
Interests Attorney should appeal when he or she believes that (1) the trial
courts decision is significantly detrimental to the childs welfare, (2) an appeal
could be successful considering the law, the standard of review, and the evidence
that can be presented to the appellate court, and (3) the probability and degree
of benefit to the child outweighs the probability and degree of detriment to the
child from extending the litigation and expense that the parties will undergo.

VI. COURTS

A. Appointment of Lawyers

A court should appoint a lawyer as a Childs Attorney or Best Interests Attorney

as soon as 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

by state law. A court should also appoint a lawyer in accordance with the
A.B.A. Standards of Practice for Representing a Child in Abuse and Neglect
Cases (1996) when considering allegations of child abuse or neglect that
warrant state intervention.

Commentary

Whether in a divorce, custody or child protection case, issues such as abuse, neglect
or other dangers to the child create an especially compelling need for lawyers to protect the
interests of children. Lawyers in these cases must take appropriate steps to ensure that harm
to the child is minimized while the custody case is being litigated. Appointing a lawyer is no
substitute for a child protective services investigation or other law enforcement investigation,
where appropriate. The situation may call for referrals to or joinder of child protection
officials, transfer of the case to the juvenile dependency court, or steps to coordinate the case
with a related ongoing child protection proceeding, which may be in a different court. Any
question of child maltreatment should be a critical factor in the courts resolution of custody
and parenting time proceedings, and should be factually resolved before permanent custody
and parenting time are addressed. A serious forensic investigation to find out what happened
should come before, and not be diluted by, a more general investigation into the best interests
of the child.

2. Discretionary Appointment

20
 In deciding whether to appoint a lawyer, the court should consider the
nature and adequacy of the evidence to be presented by the parties; other
available methods of obtaining information, including social service
investigations, and evaluations by mental health professionals; and available
resources for payment. Appointment may be most appropriate in cases
involving the following factors, allegations or concerns:

a. Consideration of extraordinary remedies such as supervised

visitation, terminating or suspending parenting time, or
awarding custody or visitation to a non-parent;
b. Relocation that could substantially reduce the childs time with a
parent or sibling;
c. The childs concerns or views;
d. Harm to the child from illegal or excessive drug or alcohol abuse
by 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 or present mental health problems of the child or a party;
i. Special physical, educational, or mental health needs of a child
that require investigation or advocacy;
j. A high level of acrimony;
k. Inappropriate adult influence or manipulation;
l. Interference with custody or parenting time;
m. A need for more evidence relevant to the best interests of the
child;
n. A need to minimize the harm to the child from the processes of
family separation and litigation; or
o. Specific issues that would best be addressed by a lawyer
appointed to address only those issues, which the court should
specify in its appointment order.

Commentary

In some cases the courts capacity to decide the case properly will be jeopardized
without a more child-focused framing of the issues, or without the opportunity for providing
additional information concerning the childs best interests. Often, because of a lack of
effective counsel for some or all parties, or insufficient investigation, courts are deprived of
important information, to the detriment of the children. A lawyer building and arguing the
childs case, or a case for the childs 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
any views the child wishes to express concerning various aspects of the case, and that those
views will be given the proper weight that substantive law attaches to them. This must be
done in the least harmful manner that which is least likely to make the child think that he

21
or she is deciding the case and passing judgment on the parents. Courts and lawyers should
strive to implement procedures that give children opportunities to be meaningfully heard
when they have something they want to say, rather than simply giving the parents another
vehicle with which to make their case.

The purpose of child representation is not only to advocate a particular outcome, but
also to 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 be
remedied or prevented.

Appointment of a lawyer is a tool to protect the child and provide information to help
assist courts in deciding a case in accordance with the childs best interests. A decision not to
appoint should not be regarded as actionably denying a childs procedural or substantive
rights under these Standards, except as provided by state law. Likewise, these Standards are
not intended to diminish state laws or practices which afford children standing or the right to
more broad representation than provided by these Standards. Similarly, these Standards do
not limit any right or opportunity of a child to engage a lawyer or to initiate an action, where
such actions or rights are recognized by law or practice.

3. Appointment Orders

Courts should make written appointment orders on standardized forms, in

plain language understandable to non-lawyers, and send copies to the parties
as well as to counsel. Orders should specify the lawyers role as either Childs
Attorney or Best Interests Attorney, and the reasons for and duration of the
appointment.

Commentary

Appointment orders should articulate as precisely as possible the reasons for the
appointment and the tasks to be performed. Clarity is needed to inform all parties of the role
and authority of the lawyer; to help the court make an informed decision and exercise
effective oversight; and to facilitate understanding, acceptance and compliance. A Model
Appointment Order is at the end of these Standards.

When the lawyer is appointed for a narrow, specific purpose with reduced duties
under Standard VI-A-2(o), the lawyer may need to ask the court to clarify or change the role
or tasks as needed to serve the childs interests at any time during the course of the case. This
should be done with notice to the parties, who should also receive copies of any new order.

4. Information Access Orders

An accompanying, separate order should authorize the lawyers reasonable

access to the child, and to all otherwise privileged or confidential information
about the child, without the necessity of any further order or release,
including, but not limited to, social services, drug and alcohol treatment,

22
 medical, evaluation, law enforcement, school, probate and court records,
records of trusts and accounts of which the child is a beneficiary, and other
records relevant to the case; except that health and mental health records
that would otherwise be privileged or confidential under state or federal laws
should be released to the lawyer only in accordance with those laws.

Commentary

A model Order for Access to Confidential Information appears at the end of these
Standards. It is separate from the appointment order so that the facts or allegations cited as
reasons for the appointment are not revealed to everyone from whom information is sought.
Use 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 of Appointments

Appointments should last, and require active representation, as long as the

issues for which the lawyer was appointed are pending.

Commentary

The Childs Attorney or Best Interests Attorney may be the only source of continuity
in the court system for the family, providing a stable point of contact for the child and
institutional memory for the court and agencies. Courts should maintain continuity of
representation whenever possible, re-appointing the lawyer when one is needed again, unless
inconsistent with the childs needs. The lawyer should ordinarily accept reappointment. If
replaced, the lawyer should inform and cooperate with the successor.

7. Whom to Appoint

Courts should appoint only lawyers who have agreed to serve in child
custody cases in the assigned role, and have been trained as provided in
Standard VI-B or are qualified by appropriate experience in custody cases.

Commentary

Courts should appoint from the ranks of qualified lawyers. Appointments should not
be made without regard to prior training or practice. Competence requires relevant training
and experience. Lawyers should be allowed to specify if they are only willing to serve as
Childs Attorney, or only as Best Interests Attorney.

23
 8. Privately-Retained Attorneys

An attorney privately retained by or for a child, whether paid or not, (a) is

subject to these Standards, (b) should have all the rights and responsibilities
of a lawyer appointed by a court pursuant to these Standards, (c) should be
expressly retained as either a Childs 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 cover:

1. Relevant state and federal laws, agency regulations, court decisions and
court rules;

2. The legal standards applicable in each kind of case in which the lawyer may
be appointed, including child custody and visitation law;

3. Applicable representation guidelines and standards;

4. The court process and key personnel in child-related litigation, including

custody evaluations and mediation;

5. Childrens development, needs and abilities at different ages;

6. Communicating with children;

7. Preparing and presenting a childs viewpoints, including child testimony and

alternatives to direct testimony;

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

information on local 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, and treatment services, and provisions and constraints
related to agency payment for services;

24
 12. Basic information about state and federal laws and treaties on child custody
jurisdiction, enforcement, and child abduction.

Commentary

Courts, bar associations, and other organizations should sponsor, fund and participate
in training. They should also offer advanced and new-developments training, and provide
mentors for lawyers who are new to child representation. Training in custody law is
especially important because not everyone seeking to represent children will have a family
law background. Lawyers must be trained to distinguish between the different kinds 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

custody and parenting time, and any statutes or case law regarding how allegations or
findings of domestic violence should affect custody or parenting time determinations.
Training should also sensitize lawyers to the dangers that domestic violence victims and their
children face in attempting 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 predictable
compensation that is based on legal standards generally used for determining
the reasonableness of privately-retained lawyers hourly fees in family law cases.

1. Compensation Aspects of Appointment Orders

The court should make clear to all parties, orally and in writing, how fees
will be determined, including the hourly rate or other computation system
used, and the fact that both in-court and out-of-court work will be paid for;
and how and by whom the fees and expenses are to be paid, in what shares. If
the parties are to pay for the lawyers services, then at the time of
appointment the court should order the parties to deposit specific amounts of
money for fees and costs.

2. Sources of Payment

Courts should look to the following sources, in the following order, to pay for
the lawyers services: (a) The incomes and assets of the parties; (b) Targeted
filing fees assessed against litigants in similar cases, and reserved in a fund
for child representation; (c) Government funding; (d) Voluntary pro bono
service. States and localities should provide sufficient funding to reimburse
private attorneys, to contract with lawyers or firms specializing in childrens
law, and to support pro bono and legal aid programs. Courts should
eliminate involuntary pro bono appointments, and should not expect all or
most representation to be pro bono.

25
 3. Timeliness of Claims and Payment

Lawyers should regularly bill for their time and receive adequate and timely
compensation. Periodically and after certain events, such as hearings or
orders, they should be allowed to request payment. States should set a
maximum number of days for any required court review of these bills, and
for any governmental payment 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 as copying medical records, long distance phone calls, service of
process, and transcripts of hearings.

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
of reasonableness for lawyers fees in general. Currently, state-set uniform rates tend to be
lower than what competent, experienced lawyers should be paid, creating an impression that
this is second-class work. In some places it has become customary for the work of child
representation to be minimal and pro forma, or for it to be performed by lawyers whose
services are not in much demand.

Lawyers and parties need to understand how the lawyer will be paid. The requirement
to state the lawyers hourly rate in the appointment order will help make litigants aware of
the costs being incurred. It is not meant to set a uniform rate, nor to pre-empt a courts
determination of the overall reasonableness of fees. The court should keep information on
eligible lawyers hourly rates and pro bono availability on file, or ascertain it when making
the appointment order. Judges should not arbitrarily reduce properly requested
compensation, except in accordance with legal standards of reasonableness.

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
funding, and increase the number of qualified pro bono and legal service attorneys. All of
these steps will increase the professionalism of childrens lawyers generally.

As much as possible, those whose decisions impose costs on others and on society
should bear such costs at the time that they make the decisions, so that the decisions will be
more fully informed and socially conscious. Thus direct payment of lawyers fees by
litigants is best, where possible. Nonetheless, states and localities ultimately have the
obligation to protect children in their court systems whose needs cannot otherwise be met.

26
 Courts are encouraged to seek high-quality child representation through contracting
with special childrens law offices, law firms, and other programs. However, the motive
should not be a lower level of compensation. Courts should assure that payment is
commensurate with the fees paid to equivalently experienced individual lawyers who have
similar qualifications and responsibilities.

Courts and bar associations should establish or cooperate with voluntary pro bono
and/or legal services programs to adequately train and support pro bono and legal services
lawyers in representing children in custody cases.

In jurisdictions where more than one court system deals with child custody, the
availability, continuity and payment of lawyers should not vary depending on which court is
used, nor on the type of appointment.

D. Caseloads

Courts should control the size of court-appointed caseloads, so that lawyers do

not have so many cases that they are unable to meet these Standards. If
caseloads of individual lawyers approach or exceed acceptable limits, courts
should take one or more of the following steps: (1) work with bar and childrens
advocacy groups to increase the availability of lawyers; (2) make formal
arrangements for child representation with law firms or programs providing
representation; (3) renegotiate existing court contracts for child representation;
(4) alert agency administrators that their lawyers have excessive caseloads and
order them to establish procedures or a plan to solve the problem; (5) alert state
judicial, executive, and legislative branch leaders that excessive caseloads
jeopardize the ability of lawyers to competently represent children; and (6) seek
additional funding.

E. Physical accommodations

Courts should provide lawyers representing children with seating and work
space comparable to that of other lawyers, sufficient to facilitate the work of in-
court representation, and consistent with the dignity, importance, independence,
and impartiality that they ought to have.

F. Immunity

Courts should take steps to protect all lawyers representing children from
frivolous lawsuits and harassment by adult litigants. Best Interests Attorneys
should have qualified, quasi-judicial immunity for civil damages when
performing actions consistent with their appointed roles, except for actions that
are: (1) willfully wrongful; (2) done with conscious indifference or reckless
disregard to the safety of another; (3) done in bad faith or with malice; or (4)
grossly negligent. Only the child should have any right of action against a
Childs Attorney or Best Interests Attorney.

27
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 childrens lawyers
from frivolous lawsuits. Immunity should be extended to protect lawyers ability to fully
investigate and advocate, without harassment or intimidation. In determining immunity, the
proper inquiry is into the duties at issue and not the title of the appointment. Other
mechanisms still exist to prevent or address lawyer misconduct: (1) attorneys are bound by
their state bars rules of professional conduct; (2) the court oversees their conduct and can
remove or admonish them for obvious misconduct; (3) the court is the ultimate custody
decision-maker and should not give deference to a best-interests argument based on an
inadequate or biased investigation.

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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 that

appointing a Childs Attorney or Best Interests Attorney is necessary to help the Court
decide the 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 of extraordinary remedies such as supervised visitation, terminating or

suspending visitation with a parent, or awarding custody or visitation to a non-parent
(_) Relocation that could substantially reduce of the childs time with a parent or sibling
(_) The childs 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 present mental health problems of the child or a party
(_) Special physical, educational, or mental health needs requiring investigation or advocacy
(_) A high level of acrimony
(_) 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: __________________________________________

29
II. NATURE OF APPOINTMENT
_________________________________________, a lawyer who has been trained in

child representation in custody cases and is willing to serve in such cases in this Court, is
hereby appointed as (_) Childs Attorney (_) Best Interests Attorney, for the (_) the child or
children named above (_) the child(ren) ________________________________________,
to represent the child(ren) in accordance with the Standards of Practice for Lawyers
Representing Children in Custody Cases, a copy of which (_) is attached (_) has been
furnished to the appointee. A Childs Attorney represents the child in a normal attorney-
client relationship. A Best Interests Attorney investigates and advocates the childs best
interests as a lawyer. Neither kind of lawyer testifies or submits a report. Both have duties of
confidentiality as lawyers, but the Best Interests Attorney may use information from the
child for the purposes of the representation.

III. FEES AND COSTS

The hourly rate of the lawyer appointed is $ ____, for both in-court and out-of-court

work.
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 shares
of the responsibility for the fees and costs as between the parties (_) are to be determined
later (_) are as follows: _____________ to pay ______ %; ____________ to pay ______ %.
The State shall be responsible for paying the fees and costs.
(_)

(_) The lawyer has agreed to serve without payment. However, the lawyers expenses will be
reimbursed by (_) the parties (_) the state.

IV. ACCESS TO CONFIDENTIAL INFORMATION

The lawyer appointed shall have access to confidential information about the child as

provided in the Standards of Practice for Lawyers Representing Children in Custody Cases
and in an Order for Access to Confidential Information that will be signed at the same time
as this Order.
THE CLERK IS HEREBY ORDERED TO MAIL COPIES OF THIS ORDER TO ALL

PARTIES AND COUNSEL.

DATE: ________________, 20___ ___________________________

JUDGE

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 IN THE __________________________ COURT OF ___________________________

_______________________
Petitioner,
v. Case No. _____________
_______________________
Respondent.

In Re: ____________________________________, D.O.B. ________________

ORDER FOR ACCESS TO CONFIDENTIAL INFORMATION

_________________________________ has been appointed as (_) Best Interests

Attorney (_) Childs Attorney for (_) the child or children named above (_) the child
___________________, and so shall have immediate access to such child or children, and to
all otherwise privileged or confidential information regarding such child or children, without
the necessity of any further order or release. Such information includes but is not limited to
social services, drug and alcohol treatment, medical, evaluation, law enforcement, school,
probate and court records, records of trusts and accounts of which the child is a beneficiary,
and other records relevant to the case, including court records of parties to this case or their
household members.
Mental health records that are privileged or confidential under state or federal laws

shall be released to the Childs Attorney or Best Interests Attorney only in accordance with
such laws.
THE CLERK IS HEREBY ORDERED TO MAIL COPIES OF THIS ORDER TO

ALL PARTIES AND COUNSEL.

DATE: _____________, 20___ ___________________________

JUDGE

31