A Judge’s Guide

MANAGING THE CHILD CUSTODY CASE
Addressing Attorney Behavior
So far, this chapter has focused on the behaviors of judges and parties involved in
family court proceedings. Attorneys for the parties can also play a role in fueling
the fires of conflict in child custody cases. In order to better address negative
attorney behavior, you should refer to the American Academy of Matrimonial
Lawyers (AAML) BOUNDS OF ADVOCACY. 34 These standards encourage attorneys
to settle cases through alternative dispute resolution, 35 to advise clients how
meritless custody claims are harmful to children, 36 and to refuse to represent
clients who seek the attorney’s assistance in engaging in vindictive conduct toward
opposing parties. 37
Representing the Parties, Including the
Child
Importance of Attorneys for All Parties
The ABA STANDARDS RELATING TO TRIAL COURTS require that judges appoint
an attorney for parties in specified domestic relations cases, including an attorney
for the child, when appropriate. 38 The commentary relevant to these standards
states:
. . . [T]he legal and ethical duty of judges to decide cases justly and
efficiently requires that counsel be appointed where needed to
prevent miscarriage of justice. A particularly important instance of
such cases is those that involve the relationship of parent and child,
which is close to personal liberty in the hierarchy of accepted values.
Where custody of children is controverted in the divorce or
separation of the parents, the consequences may include partial or
entire loss of custody to one parent or the other. A person
threatened with this consequence should have the assistance of
counsel. Moreover, the interests of the child in either divorce or
termination proceedings should not be left to representation by other
parties in the proceedings – parents, foster parents, or social agencies
– but should be asserted through independent representation of
counsel or by a guardian ad litem. 39
Likewise, the Institute of Judicial Administration (IJA)/ABA JUVENILE JUSTICE
STANDARDS RELATING TO COUNSEL FOR PRIVATE PARTIES, Standard 1.1
provides that “[t]he participation of counsel on behalf of all parties subject to
juvenile and family court proceedings is essential to the administration of justice
and to the fair and accurate resolution of issues at all stages of those proceedings.”
Standard 2.3(b) goes on to state that “independent counsel should also be
provided for the juvenile who is the subject of proceedings affecting his or her
status or custody [and] should be available . . . in all proceedings collateral to
neglect and dependency matters . . .”
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