The Role of Children's Counsel in Contested Child Custody, Visitation and Support Cases
| Publication year | 1986 |
| Pages | 224 |
| Citation | Vol. 15 No. 2 Pg. 224 |
1986, February, Pg. 224. The Role of Children's Counsel in Contested Child Custody, Visitation and Support Cases
In recent years, the proposition that children involved in contested child custody, visitation and support cases should be afforded independent legal representation has gained increasing favor. Many states now have statutes which permit a court to appoint an attorney to represent or act on behalf of children in such proceedings. The laws of a few states mandate such appointment. Under some statutes, the children's legal representative is identified as "the attorney for the child." Under a number of others, the attorney is called a "guardian ad litem."(fn1)
The trend toward children's representation has undergone a great deal of scrutiny by law review writers and national bar study panels. Some commentators have questioned the need for independent representation based on contentions such as the following: (1) the children's lawyer simply duplicates the efforts of the parents' attorneys; (2) the role is superfluous because the court itself functions to protect children subject to its jurisdiction; and (3) the introduction of a separate children's attorney intensifies the adversarial nature of the proceeding and significantly increases costs to the parents. However, most commentators have recognized that children's counsel can play a legitimate, often important and sometimes indispensable part in the dispute resolution process.
The lack of definition for the role of children's counsel has been a matter of serious concern in light of the fact that few of the statutes authorizing independent representation provide any guidelines as to how attorneys should comport themselves when their client is a child.(fn2)
In Colorado, the Uniform Dissolution of Marriage Act ("Act") permits the court to appoint an attorney to represent the interests of a child with respect to custody, support and visitation upon its own motion or that of a party.(fn3) Unlike the Colorado Children's Code which denominates a child's legal representative in a dependency and neglect proceeding as a guardian ad litem,(fn4) the Act does not explicitly provide for a guardian ad litem.
In practice, however, Colorado district courts frequently refer to the children's legal representative in their orders of appointment as a guardian ad litem, rather than as an attorney for the child. Colorado Rules of Civil Procedure Rule 17(c), which specifically provides that a court may appoint a guardian ad litem for a minor in any proceeding when the minor's interests are not otherwise represented, constitutes a separate basis for the appointment of a children's advocate in cases arising under the Act.
Is there a difference in the duty owed to the client and the court by a lawyer appointed to represent a child depending on whether the order of appointment refers to an attorney or a guardian ad litem? The Act specifies that the appointed attorney is to "... represent the interests of a minor or dependent child,. . .(fn5) rather than to represent the child per se. Thus, it can be argued that the Act essentially envisions that a child's lawyer should function as a guardian ad litem rather than proceeding in the manner which a lawyer is ethically bound to perform in representing a competent adult. Guardians ad litem have the authority to substitute their own views for those of the child as to what constitutes the best interests of the child under given circumstances. When representing a competent adult, lawyers must normally provide zealous advocacy in accordance with the client's wishes, regardless of their own personal or professional views.
However, this discussion is probably academic in light of a conclusion of one major study designed both to identify what children's lawyers actually do in practice and to formulate standards for the proper fulfillment of their role. This study concluded that the legitimate role of a child's legal representative, regardless of what title is applied to it, necessarily encompasses a wide variety of tasks, including advocacy, fact-finding, negotiation, mediation, counseling, evaluation and making recommendations.(fn6) This conclusion was based on the experience of Connecticut practitioners, but appears to be generally valid.
The amount of attention children's lawyers should devote to any particular task varies. Since neither the Act nor Rule 17(c) provides guidelines, a major challenge for children's lawyers is to determine the scope of their role in each particular case. In making this determination, a number of factors should be considered, including:
1) The philosophy of the appointing court regarding the role of the children's representative;
2) The age of the child;
3) The state of the child's...
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