Appointing counsel for children might seem logical, but it can cause many problems and certainly raises many issues. Is the child’s attorney supposed to do an independent investigation to see what is truly best for the child, or is the attorney simply to be a “mouth piece” for the child client? Who pays the lawyer? What is the role of the child’s attorney in court: can this attorney file motions and make argument at trial? Does the child’s lawyer have party standing? Does the attorney have any expertise in counseling or psychology so as to permit the attorney to render an opinion? If the child’s attorney issues a recommendation can the attorney be forced to testify and to be cross-examined on the report? If the attorney testifies, is the lawyer disqualified from arguing the case? If the children have an attorney, in what ways can a parent talk to the child about the case?
Most appointed attorneys will want a specific retainer agreement that spells out fees, their roles as “advocacy” or “best interests” representation, and ground rules for representation. There is little uniformity in these details. Legal practice and customs vary from county to county and from judge to judge.
Whether or not to appoint children’s counsel, and defining the terms governing the appointment, is a very substantial decision that should be made only after careful and deliberate consideration, and with consultation with an experienced custody litigation attorney. The act of filing a motion or request for appointment counsel is likely to result in a separate motion hearing or conference with the trial judge. Adding a third lawyer to the case makes the matter procedurally more complex: Having three lawyers available for trial instead of two makes scheduling and trial much more complex and time consuming. The parents’ lawyers must guide their client through the maze of difficulties described in this and prior blogs.
Sometimes a child “just wants to be heard.” In this case, appointing a joint counselor or custody evaluator might be a better choice. Remember at all times that an appointed attorney is not a custody evaluator.