A Judge’s Guide

REPRESENTATION FOR THE CHILD IN CUSTODY CASES
of Counsel for Children (NACC) initially endorsed the ABA Abuse and Neglect
Standards with reservation as to the ABA’s Standard B-4, which deals with the
attorney’s position when the child cannot meaningfully participate or when the
child’s directions are deemed injurious to the child. The NACC later wrote its
own revised version of Standard B-4, which directs the attorney to assume a
substituted judgment role based on objective criteria when the child cannot
meaningfully participate. The revised version would also require the attorney to
request appointment of a guardian ad litem, a discretionary act under the ABA
Abuse and Neglect Standards, if the child’s wishes are seriously injurious to the
child.
The ABA Standards of Practice for Lawyers
Representing Children in Custody Cases
The American Bar Association Section of Family Law Standards of Practice for
Lawyers Representing Children in Custody Cases (ABA Custody Standards)
“apply to the appointment and performance of lawyers serving as advocates for
children or their interests in any case where temporary or permanent legal custody,
physical custody, parenting plans, parenting time, access, or visitation are
adjudicated, including but not limited to divorce, parentage, domestic violence,
contested adoptions, and contested private guardianship cases.” 12 While
emphasizing a client-directed model, the ABA Custody Standards also create the
role of a “best interests” attorney,” who is not bound by the child’s directives. 13
The ABA Custody Standards envision a robust advocacy role for the best interests
attorney, with the only (but very significant) difference between an attorney
functioning in that role and one functioning in a client-directed role being that the
best interests attorney may determine the position to be advocated, 14 with the
related ability to use, without disclosing, client confidences. 15 The complete ABA
Custody Standards can be found in the Appendix to this book.
The Attorneys’ Roles
The ABA Custody Standards contemplate two distinct types of attorneys being
appointed in custody cases. The first is the child’s attorney, defined as “[a] lawyer
who provides independent legal counsel for a child and who owes the same duties
of undivided loyalty, confidentiality, and competent representation as are due an
adult client.” 16 The second is the “best interests attorney,” who “provides
independent legal services for the purpose of protecting a child’s best interests,
without being bound by the child’s directives or objectives.” 17 The Standards
stress that neither attorney should serve as a witness or play any other role in the
case.
Neither kind of lawyer should be a witness, which means that the lawyer
should not be cross-examined, and more importantly should neither testify
nor make a written or oral report or recommendation to the court, but
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