Pasternak & Fidis Reporter

September 10, 2015

Kids and Their Lawyers: Children’s Custody Attorneys in D.C., Maryland, and Virginia

The old saying “out of the mouth of babes” neatly packages the concept that children can say perceptive and remarkably wise things, despite their youth. Although children may have much to offer in insight, they are usually indirect, unvoiced participants in custody cases. But children can have a direct voice and be represented by their own counsel. This article describes the types of child advocacy in Maryland, Virginia, and the District of Columbia.

A Maryland judge may appoint counsel for a child who is the subject of a custody proceeding to serve any one of three different roles: 1) to decide whether to waive or assert a child’s legal privilege of nondisclosure (“child privilege attorney”); 2) to advocate for the child’s best interest (“best interest attorney”); or 3) to advocate solely for the child’s wishes (“child advocate”). In addition to the power of appointment in custody and access cases, Maryland judges have the authority to appoint a child advocate in cases where the amount of support of a minor child is contested.

A child privilege attorney is appointed to decide whether or not a child’s privilege of nondisclosure should be waived or asserted. Children are entitled to the same legal protections as adults are when it comes to certain communications and personal information. The child privilege attorney decides whether or not otherwise protected, confidential information should or should not be released in a court proceeding. A child’s parents do not have the right to waive their child’s privilege. A child privilege attorney is often appointed for the purpose of deciding whether to waive a child’s privilege with his or her psychiatrist, psychologist, therapist, or social worker. However, a child’s attorney can waive confidentiality for other privileged communications, such as those with a religious entity or drug and alcohol counselor. A child privilege attorney also has the duty to assert a child’s privilege and ensure that information is kept confidential if the attorney determines that it is in the best interest of the child to do so. The court is required to appoint a child privilege attorney when a minor is not of sufficient maturity to exercise his or her own privilege.

A best interest attorney makes an independent determination about the child’s best interest and what custodial arrangement best supports the child’s best interest. A best interest attorney must tell the court what the child wants; however the attorney is not bound to advocate for the outcome that the child desires. A best interest attorney is permitted to disclose confidential information, even though he or she acts as an attorney, who is generally ethically bound to keep their attorney-client communications confidential. The court determines on a case-by-case basis whether or not to appoint a best interest attorney. The Maryland Rules provide eleven bases upon which a judge may appoint such an attorney, including the presence of a high level of conflict and inappropriate adult influence and manipulation. A best interest attorney may not testify or be cross-examined in court.

A child’s advocate serves as wholly independent counsel. An attorney appointed for this purpose must treat their child client in the same way that they would an adult client. The attorney must abide by the instruction of his or her client (whether or not he or she believes that course of action is in the client’s best interest) and must keep attorney-client communications confidential. A child advocate attorney is generally only appropriate where the child is sufficiently mature and sees his or her interests as distinct from those of the child’s parents.

A Virginia judge may appoint counsel, called a guardian ad litem (GAL), at his/her discretion in a custody case. However, in a custody case where each parent is represented by counsel, the court must decline to appoint counsel for a child unless the court expressly finds that the child is not otherwise adequately represented in the proceedings. A GAL is tasked with the representation of the child’s legitimate interests and must generally keep the child’s confidences. However, those confidences must sometimes be abridged. In any case in which the opinion of the GAL and the child’s conflict as to the child’s best interest, the attorney must disclose to the court the child’s wishes. The GAL may disclose confidences if the GAL believes that those confidences must be revealed in order to perform his or her advocacy duties for the child’s best interest. A judge may consider the GAL’s opinion in a custody case, along with other statutory factors.

In Virginia a GAL acts as an attorney and may not be cross-examined or testify, except in very rare cases. The Virginia standards of performance direct that the attorney should never put the child in a position to choose a parent or placement, but rather to articulate their concerns and views. When a GAL is appointed for a child, the parents’ attorneys may not communicate with the child without the parents’ consent.

A child may also arrange to hire his or her own attorney in addition to or in lieu of a guardian ad litem. Virginia’s ethical rules expressly provide that a child of sufficient age and maturity may receive his or her own independent counsel and even permit a child to get a second opinion from another lawyer, even if he or she has an appointed GAL.

District of Columbia
District of Columbia law also provides for the appointment of a GAL to appear on behalf of a child and represent his best interests, and for the appointment of a child’s attorney, or both. The District has adopted standards to assess when it is appropriate to appoint a GAL, including when 1) one or both parents request one; 2) there is high conflict between parents or with parent and child; 3) there is undue parental manipulation; and 4) significant parental relocation occurs.

A GAL represents a child’s best interest; the GAL is not bound by the child’s wishes or direction. However, the GAL should reveal certain confidences to the court if the child’s wishes differ from the guardian ad litem’s recommendations. A GAL may also reveal other attorney-client communications if the child consents or if the attorney finds it is in his or her client’s best interests to do so. A child attorney is bound by ethical
rules regarding confidentiality.

A court may also appoint an “expressed wishes attorney” who is bound by the child’s direction. An expressed wishes attorney may also work for a child in tandem with a GAL. A guardian ad litem may request the appointment of an expressed wishes attorney if the child’s opinion and the guardian ad litem’s opinion conflict. In that instance, the guardian ad litem will continue to advocate for the child’s best interest and another attorney will argue for the child’s expressed wishes.

Alternatives to A Child Advocate
When there is no child’s attorney to advocate on a child’s behalf, a judge may choose to conduct an in-chambers interview of the child in order to ascertain the child’s wishes or views. This interview occurs between the child and the judge, generally only once and generally at the time of a merits hearing. These interviews are judicial proceedings; they are not confidential and are generally recorded by a stenographer.

The in-chambers interview is a more economical vehicle for hearing a child’s voice than using child’s counsel. Parents are often required to pay for their child’s attorney’s fees, although it is possible that a child advocate may be appointed without cost to the parties. However, in-chambers interviews can be stressful and intimidating for the child as they are conducted in the courthouse and with a person the child will have never encountered before. A judge, unlike a child advocate, will not have the opportunity to develop a relationship with the child or personally gather and review evidence with the same depth and scope that a child’s attorney can.

In rare instances a child can be his or her own direct advocate.In Maryland, a child 16 years of age or older possesses the right to petition for a change in custody on their own behalf. However, Virginia and the District of Columbia do not grant children such specific rights.