A Judge’s Guide

REPRESENTATION FOR THE CHILD IN CUSTODY CASES
instead should offer traditional evidence-based legal arguments such as
other lawyers make. . . .
The Child’s Attorney role involves a confidential relationship with
privileged communications. Because the child has a right to confidentiality
and advocacy of his or her position, the Child’s Attorney can never
abandon this role while remaining involved in the case in any way. Once a
lawyer has a lawyer-client relationship with a minor, he or she cannot and
should not assume any other role for the child, especially as Best Interests
Attorney or as a witness who investigates and makes a recommendation. 18
The Standards clearly define the role and responsibilities of both the Child’s
Attorney and the Best Interests Attorney. These unique duties are outlined below.
Child’s Attorney
The Child’s Attorney must explain to the child in a developmentally
appropriate way the events of the litigation, and any information that will
help the child in the decision-making process.
The Child’s Attorney can express his or her assessment of the case and his
or her opinion about the best position for the child to take. “However, a
child may agree with the lawyer for inappropriate reasons. A lawyer must
remain aware of the power dynamics inherent in adult/child relationships,
recognize that the child may be more susceptible to intimidation and
manipulation than some adult clients, and strive to detect and neutralize
those factors. The lawyer should carefully choose the best time to express
his or her assessment of the case. The lawyer needs to understand what
the child knows, and what factors are influencing the child’s decision. The
lawyer should attempt to determine from the child’s opinion and
reasoning what factors have been the most influential or have been
confusing or glided over by the child.” 19
The child determines the overall objectives of the case. The Child’s
Attorney is not required to consult with the child on matters in which he
or she would not need to consult with an adult client or where the child’s
developmental level prevents the attorney from obtaining such direction,
“as with an infant or preverbal child.” 20
The Standards do not presume impairment, disability, or incompetency
based on a child’s age. Therefore, the Child’s Attorney should make a
separate determination under the Model Rules if he or she believes the
child has “diminished capacity.” 21
In the absence of expressed objectives by the child, the Child’s Attorney
“should make a good faith effort to determine the child’s wishes.” 22 If the
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