By Stephanie D'Atri, Loebsack & Brownlee, PLLC
“Children deserve to have custody proceedings conducted in the manner least harmful to them and most likely to provide judges with the facts needed to decide the case” – American Bar Association Section of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases (August 2003)
There are several often-confused roles of an attorney representing or advocating for children: (1) Child’s Attorney; (2) Best Interests Attorney; and (3) Guardian ad Litem. The latter, a child’s Guardian ad Litem (“GAL”), is usually a non-lawyer volunteer who is appointed by the court in child abuse, neglect, and dependency (“AND”) cases pursuant to N.C. Gen. Stat. § 7B-601(a). This role is not optional; our statutes actually require the judge to appoint a volunteer GAL in AND cases. This type of GAL can be a lawyer, but GALs are not obligated to (and shouldn’t) perform any lawyer-related functions. Before I started my legal career, I became a GAL for abused, neglected, and dependent children – I investigate the child’s circumstances, write court reports about my observations, and testify about what I believe is best for the child, even though the child to whom I have been appointed may have an entirely different position about where he or she is to be placed and/or with whom. I am precluded from objecting and must instead sit quietly and respond to another lawyer’s questions. A very strange feeling for a zealous attorney… But it’s also been one of the most rewarding jobs that I’ve ever had.
I mention this very well defined role of a GAL in AND cases because it is quite different than the attorney roles of advocating for or representing a child – i.e. the actual subject of the proceeding – in custody cases. You certainly don’t see attorneys representing a parcel of land in a land dispute or the house in a foreclosure proceeding, so why is it that we now have attorneys representing non-party children in high conflict child custody cases?
High conflict cases are just that – high conflict – and very litigious. The parents are in an emotional war over who gets primary custody of their beloved child, each distorting facts and positioning themselves in ways that make them look like the better parent to the presiding judge. The child often gets caught in the middle and becomes a bargaining chip and prize for the “winner.” But who is there to look out for the child’s wishes and interests and to make sure that his/her voice is heard too?
It is this question that propelled the “Child’s Attorney” into existence. Custody judges can only decide cases based on what is presented to them – and they may never get all of the information relevant to the child’s long-term success, particularly in a situation with two pro se litigants. Having an independent lawyer for children in high conflict custody cases often prompts voluntary settlements between the parties, thereby reducing litigation, costs to the litigants, and court resources, which ultimately saves valuable taxpayer dollars. If the case does ultimately reach the trial stage, then the lawyer for the child can provide timely and reliable information to the judge about the child’s wishes so that the best result for the child’s custody placement is achieved.
Many states have been appointing attorneys to represent children in custody proceedings for years and have quite well-developed and effective systems. While our North Carolina statutes do not specifically provide for the appointment of a lawyer in this high conflict custody scenario, a 2003 ABA publication suggests that the role is not only allowed, but is particularly important for the judge when conducting a best interests analysis (http://www.americanbar.org/content/dam/aba/migrated/domviol/pdfs/0908/Standards_of_Practice_for_Lawyers_Representing_Children.authcheckdam.pdf).
Our North Carolina Supreme Court may have actually contemplated the role of a Child’s Attorney and its importance in deciding custodial arrangements almost 139 years ago: “We think the boy was a competent witness, and ought to have been examined in that character. Indeed, we think, being the party mainly concerned, he had a right to make a statement to the court as to his feelings and wishes upon the matter, and that this ought to have been allowed serious consideration by the court, in the exercise of its discretion, as to the person to whose control he was to be subjected.” Spears v. Snell, 74 N.C. 210 (1876). About a century later, the North Carolina Supreme Court reaffirmed its position that children have a right to be heard and have their wishes considered in most circumstances. See In Re Peal, 305 N.C. 640 (1982).
In addition to this authority, our N.C. State Bar also recently adopted 2012 Formal Ethics Opinion 9 to provide some clarification on this unique role and on how this type of lawyer should manage his or her representation under our Rules of Professional Conduct (http://www.ncbar.com/ethics/printopinion.asp?id=868). It specifically requires the lawyer to decline representation unless the court’s appointment order very clearly identifies his or her roles and responsibilities throughout the litigation. Notably, the ethics opinion “does not address or seek to question the authority of a court to appoint a lawyer to represent a child in a contested custody proceeding” and simply clarifies that lawyer’s duties.
So what exactly is a Child’s Attorney, as distinguished from a Best Interests Attorney? In short, a Child’s Lawyer must operate in a very traditional client-centered role – he or she has a fiduciary duty to take and argue positions as expressed by his or her client unless such a position would “seriously endanger” the child-client. If the child takes a position that would be contrary to his or her interests but may not necessarily put the child in harm’s way, then the Child’s Attorney must counsel the child, just as he or she would with any other client, so that the child is able to make informed, meaningful decisions about his or her wishes. Even if the child’s wishes are ultimately not granted, the opportunity to be heard creates a lasting sense of respect for the legal system. A Best Interests Attorney, as distinguished from the Child’s Lawyer, would not be bound by the child’s wishes and would instead advocate for positions that are squarely in line with what the GAL deems is the best interests of that child, even if the child disagrees or articulates an entirely opposite position.
The increasing appointment of attorneys to children in Wake County in particular is a direct result of Attorney Sally Scherer’s foundation of The Child’s Advocate (TCA). With the support of local family court judges, Scherer founded TCA in 2008 so that a skilled group of attorneys could represent these voiceless children in high conflict custody cases. After TCA merged with Legal Aid of North Carolina, Inc., in 2014, its focus has been on recruiting and training additional attorneys from the private bar to help represent the growing number of children in need of an independent advocate. As TCA continues to garner tremendous support from lawyers in the family law bar – who have increasingly recognized the importance of providing a lawyer for children caught in the cross-fire of custody litigation – more children will now have their voices heard through attorneys who can leverage settlements between parents, call and question witnesses at trial, and argue the children’s wishes to the court. After all, shouldn’t their wishes be given some consideration when the children are themselves the very subjects of the custody litigation?
For more information on TCA, their website is as follows: http://www.thechildsadvocate.org/. If you are interested in volunteering for this important role, please email TCA’s managing attorney, Suzanne Chester, directly at SuzanneC2@legalaidnc.org.
*Any opinion or views expressed in blogs posted on this site are those of the identified author and not the Committee as a whole.