Attorney Appointed for Children in Custody Cases

When conflict is high in a divorce or custody case, sometimes a child’s voice, and even their best interest, can get lost in the debate between parents. In cases of family violence or abuse, or when a child’s special needs require special attention, the Maryland Family Court judge may appoint a lawyer to advocate for your child and assist the Court in determining the child’s best interest. Understanding who the child’s lawyer is, and her role in the case, will help you take full advantage of this court-appointed resource, and make sure your child’s needs are being met.

Why a Legal Representative for Your Child May be Appointed to Your Case

Maryland Family Court judges have the authority to appoint child lawyer in divorce, child custody, and contested child support cases. This happens when there are special concerns about whether the child’s interest is being adequately reflected by the parents. (More on that later.) In fact, in Maryland, a child age 16 or older even has the authority to file his or her own motion to change custody. When that happens, or when high conflict between parents threatens to drown out a child’s needs and best interests, the Court may appoint a child lawyer to step in, meet with your child, and represent his or her best interests, privacy interests, or preferences in court. The Court can appoint a child representative on a motion from either party, or on its own initiative.

When a Maryland Court Will Appoint a Child Lawyer

Not every high-conflict case requires an independent child lawyer. According to Maryland Law, when deciding whether to appoint an attorney for a child, the Court is instructed to consider:

• The nature of potential evidence to be presented
• Other methods of obtaining that information (including social service investigations and mental health evaluations)
• Available resources for payment (most often one or both parents)

While cost, and the parents’ ability to pay, is a consideration, your child will not be deprived of representation just because you are unable to pay for it. When circumstances require, the Court has the authority to appoint child attorneys, and to request that those attorneys represent children pro bono, without cost to the parents.

The rule also outlines several factors indicating when appointment of a child lawyer is most appropriate:

1. Request of one or both parties;
2. High level of conflict;
3. Inappropriate adult influence or manipulation;
4. Past or current child abuse or neglect;
5. Past or current mental health problems of the child or party;
6. Special physical, educational, or mental health needs of the child that require investigation or advocacy;
7. Actual or threatened family violence;
8. Alcohol or other substance abuse;
9. Consideration of terminating or suspending parenting time or awarding custody or visitation to a non-parent;
10. Relocation that substantially reduces the child's time with a parent, sibling, or both; or
11. Any other factor that the court considers relevant.

Why Parents May (or May Not) Request a the Appointment of a Child’s Lawyer

In certain cases, a child’s lawyer can be a powerful advocate to cut through the noise of litigation and make sure your child’s best interests are being met. A child’s legal representative can be especially helpful in cases where the two parents’ stories are vastly different, or where one party has been abusive or manipulative in the past, such as when trying to divorce a narcissist. They can also be powerful allies in cases involving Child Protective Services investigations, or parental interference. Finally, they can provide assistance when a child’s medical or mental health needs are at the center of the child custody dispute.

If your child’s other parent is resisting the appointment of a child lawyer, it may be because of the cost of bringing a third attorney into high-conflict litigation. While pro-bono child representatives are sometimes an option, more often, parents will be asked to pay some, if not all, the child’s attorney’s fees.

However, a parent may also object to the appointment of a child advocate out of concern that an independent legal representative for the child will uncover uncomfortable information about the parents. It is important to remember that no parent is perfect. If a child’s lawyer is doing her job, she will find good and bad things about both parents. The goal is to provide your child a voice in the courtroom, and to assist the Court to sort out the good and the bad to determine what is in your child’s best interests.

3 Types of Child’s Lawyers in Custody Cases

The term “Child’s Lawyer” is an umbrella term that covers the various roles an attorney can play in representing a child’s interest in court. These legal professionals can take on one (or more) of three possible roles:

Best Interest Attorney

A Child’s Best Interest Attorney (previously known as a “guardian ad litem”) is an attorney appointed by the court to protect and advocate for what she determines to be the child’s best interests. When appointed, she will:

• Meet with your child;
• Explain her role in the case;
• Visit the child in each parent’s home;
• Interview parents, teachers, counselors, doctors, childcare providers, and other relevant witnesses;
• Observe each parent’s interactions with the child;
• Review educational, medical, mental health, and other records;
• File and respond to motions;
• Receive information and documents related to the case (Discovery);
• Participate in settlement negotiations;
• Prepare your child for any meetings with the judge or testimony they may offer;
• Call witnesses and present evidence and arguments at trial.

A Child’s Best Interest Attorney does not submit reports directly to the Court, and cannot be called as a witness to testify at trial.

Child Privilege Attorney

Every person has a right to keep certain information private, such as:

• Certain medical and educational records,
• Therapy or mental health information including both diagnosis and treatment,
• Communication with privileged individuals (such as clergy or counselors).

When that protected information is used in court, the person to whom it is related has the ability to assert a “privilege” to exclude it as confidential.

Under Maryland law, a parent cannot waive a child’s right to protect that information for his or her own benefit. However, sometimes, information related to a child’s wellbeing is needed to determine their best interests. Most often, this information comes from the child’s therapist, psychologist, psychiatrist, doctor, religious leader, school counselor, or social worker.

To protect the child’s privileged information, the Maryland Court can appoint a Child Privilege Attorney (formerly known as a “Nagle v Hooks Attorney” after a 1983 Maryland Supreme Court case of the same name). This type of child’s lawyer is authorized to decide whether it is in the child’s best interest to release the protected information. If not, the attorney may assert the child’s privilege at court and prevent testimony or admission of evidence related to the confidential information. The Court must appoint a Child Privilege Attorney anytime confidential information is going to be presented and the child is not mature enough to assert his or her own privilege.

Child Advocate Attorney

The third type of child lawyer is the Child Advocate A Child Advocate is generally only appointed to represent teenagers or older children. Often, a Child Advocate also serves as a Child’s Privilege Attorney. A Child Advocate has the closest to a traditional attorney-client relationship with the child they represent. She acts as an independent lawyer for the child, representing the child’s position at court and following their instructions. Unlike a Best Interest Attorney, communication between a Child Advocate and the child she represents is confidential.

Should Parents Talk to a Child’s Lawyer?

Your child’s attorney has the authority to talk to you, and in some cases to observe you and your child together in your own home. It may be natural to try to persuade your child’s lawyer to see things from your perspective. To an extent, a child’s lawyer does rely on parents, and their attorneys, to understand the issues in the case, and provide context for the child’s preferences.

However, you should always remember that what you say to your child’s lawyer is not protected by attorney-client privilege. If you pressure the lawyer to sway her best interests, determination, or admit to contested issues, those statements may be used against you later in the case. Try to keep the focus on your children, and on the facts of the case, rather than your emotions. If you have concerns about talking to your child’s lawyer directly, talk to your own attorney. They may be able to arrange a meeting time, place, and situation that will protect your interests, or even be present to speak on your behalf.

Can a Child’s Lawyer and the Child Disagree?

As part of her role, a child’s lawyer must determine whether the child has “considered judgment.” That is, whether the child understands the risks and benefits of their legal position and can reasonably communicate their wishes to the Court. In making that determination, the legal representative for the child should consider several factors:

• The child’s cognitive ability, socialization, and mental and emotional development;
• The child’s ability to express their position, communicate with the attorney, and explain the reasons behind their legal position;
• Relevant reports (such as from social workers, mental health professionals, or schools) that may support or contradict their position

Even children with cognitive or emotional disabilities may have “considered judgment.” However, it may be necessary for the child’s counsel to speak with professionals, family members, or other witnesses to determine whether the child’s position is their own. They may also need to have a professional evaluation done to determine the child’s ability to form and express their opinion.

As many parents know, what a child wants is often not what is in their best interests. When a Child Best Interest Attorney’s determination differs from the child’s “considered judgment,” the child’s lawyer is required to make the child’s position known to the Court as part of the record. However, it is her job to advocate for the child’s best interests, not necessarily the child’s desires.

In contrast, a Child’s Advocate is the child’s lawyer, for good or ill. A Child’s Advocate must advance the child’s preferences and position, even if it conflicts with the lawyer’s own beliefs about the child’s best interests.

At the Law Office of Shelly M. Ingram, our child custody attorneys can help you protect yourself and your children in a high-conflict divorce, custody, or child support case. We know when and how to work with court-appointed child lawyer, and can help you decide whether to request separate legal representation for your child. Call (301) 658-7354 or contact us online to schedule a confidential consultation with one of our Maryland attorneys.