A Judge’s Guide

REPRESENTATION FOR THE CHILD IN CUSTODY CASES
While all of the duties mentioned above are important, getting to know and
understand the child is arguably the most important aspect of the lawyer’s duty to
the child, regardless of the role assigned. Unfortunately, this aspect of child
representation often gets buried beneath the named parties’ objectives of
representation. The lawyer for the child must constantly strive to remain focused
upon the child’s needs and view the situation from the child’s perspective, rather
than from the perspective of the parents. Only after gaining an authentic
understanding of the child can the lawyer begin to address the child’s needs in a
manner that will truly benefit the child. 32
Undertaking legal representation for a child requires extensive communication,
significant trust, and a degree of intimacy with the child. Jean Koh Peters, a
leading authority on the representation of children, refers to this process as
understanding the “child-in-context.” 33 Lawyers for children “must individualize
every representation . . . so that the representation reflects the child-in-context and
the child’s unique view of the world.” 34 In essence, this concept requires the
lawyer to understand the child, on the child’s own terms, consistent with all the
facts known about the child by both the child and those closest to the child. 35
In addition to understanding the importance of legal representation for children, it
is imperative that judges examine their processes for the appointment of counsel
for children. They should ask the following questions:
Are they appointing representatives for children?
Are these representatives attorneys or non-attorneys?
What are the qualifications of the individuals being appointed?
Have they received training on both legal and non-legal topics
relevant to child advocacy?
How are they being compensated?
If they are not handling the case pro bono, is their compensation
adequate to support the advocacy required by codes of
professional responsibility?
How is the provision of these advocacy services being
monitored?
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