Children have the right to an adequate standard of living, health care, education and services. Children have the right to be raised in a home led by a parent who is empathetic and emotionally supportive. Children have the right to enjoy a healthy relationship with both of their parents and extended family members. They have the right to a balanced diet, a warm bed to sleep in and protection from abuse, neglect, exploitation and discrimination.
Placement in a home that affords the child the greatest percentage of these factors is in the court’s view …in the child’s best interests.
It is easy for parents caught up in a conflict to focus their case on one or two of these factors. As a child’s attorney, any assessment of the child’s best interests must be based on objective criteria as set forth in the law related to the purposes of the proceedings.
Children’s Attorneys should bring to the attention of the court any facts which, when considered in context, seriously call into question best interest issues. At hearings on custody or parenting time, Children’s Attorneys should present the child’s expressed desires (if any) to the court, except for those that the child expressly does not want presented. The child’s attorney must consider the child’s individual needs understanding that a child’s various needs and interests may be in conflict and must be weighed against each other keeping in mind that the child’s developmental level, including his or her sense of time, is relevant in the assessment of needs.
A “Best Interests Child’s Attorney” when working with very young children or children with diminished capacity is functioning in a nontraditional role by determining the position to be advocated independently of the client. The Best Interests Child’s Attorney should base this determination, however, on objective criteria concerning the child’s needs and interests, and not merely on the lawyer’s personal values, philosophies, and experiences. A best-interests case should be based on the state’s 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.
A child’s attorney is in a pivotal position during negotiations. The child’s attorney 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 child’s attorney may effectively assist negotiations of the parties and their lawyers by focusing on the needs of the child. Settlements frequently provide at least short-term relief for all parties involved and are often the best way to resolve a case. The child’s attorney’s role is to advocate the child’s interests and point of view in the negotiation process.