The American Bar Association’s Standards of Practice for Lawyers Representing Children in Custody Cases (2003) 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 do not presume that children of certain ages are “impaired,” “disabled,” “incompetent,” or lack capacity to determine their position in litigation. The Child’s Attorney should make a separate determination whether the child has “diminished capacity” pursuant to Model Rule 1.14 (2000) with respect to each issue in which the child is called upon to direct the representation. Disability is contextual, incremental, and may be intermittent. The child’s 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.
Under these standards ALL LAWYERS FOR CHILDREN have the following duties:
The lawyer should:
1. 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 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 child’s expressed position except as provided by the applicable ethical standards.
2. Conduct thorough, continuing, and independent discovery and investigations.
3. Develop a theory and strategy of the case to implement at hearings, including presentation of factual and legal issues.
4. Stay apprised of other court proceedings affecting the child, the parties and other household members.
5. Attend meetings involving issues within the scope of the appointment.
6. Take any necessary and appropriate action to expedite the proceedings.
7. 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.
8. Participate in depositions, pretrial conferences, and hearings.
9. File or make petitions, motions, responses or objections when necessary.
10. Participate actively in all hearings and conferences with the court on issues within the scope of the appointment.
11. Make appropriate motions, including motions in limine and evidentiary objections, file briefs and preserve issues for appeal, as appropriate.
12. Present and cross-examine witnesses and offer exhibits as necessary.
13. If a child is to meet with the judge or testify, prepare the child, familiarizing the child with the places, people, procedures, and questioning that the child will be exposed to; and seek to minimize any harm to the child from the process.
14. 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.
15. Where appropriate, introduce evidence and make arguments on the child’s competency to testify, or the reliability of the child’s testimony or out-of-court statements. The lawyer should be familiar with the current law and empirical knowledge about children’s competency, memory, and suggestibility.
16. Make a closing argument, proposing specific findings of fact and conclusions of law.
17. Ensure that a written order is made, and that it conforms to the court’s oral rulings and statutorily required findings and notices.
18. The lawyer must be skilled at recognizing the child’s developmental limitations in participating in the litigation. The lawyer’s preparation of the child should include attention to the child’s developmental needs and abilities. The Child’s Attorney has an obligation to explain clearly, precisely, and in terms the client can understand, the meaning and consequences of the client’s 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 expert’s recommendations germane to the issue
19. The lawyer should also prepare the child for the possibility that the judge may render a decision against the child’s wishes, explaining that such a result would not be the child’s fault.
20. 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 law so that the child’s 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.
21. Child’s Attorneys are bound by their states’ ethics rules in all matters. A Child’s 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.