Appointment of an Attorney to Represent the Child in a Custody Case

Appointment of an Attorney to Represent the Child in a Custody Case

In hotly contested custody cases, where the parents cannot agree on anything, courts often will appoint an attorney to represent the child or children of the parties to help resolve the custody issue. The decision to appoint an attorney is within the discretion of the court.

Role of Appointed Attorney

When the mother and father of children are engaged in a bitter dispute over the custody of their children, it is usually advantageous to have a neutral third party represent the children. The attorney for the children can interview them outside the presence, and hopefully outside the influence, of either parent. The attorney can independently talk to teachers, counselors, and other family members. The attorney can recommend professional evaluations of the children and the parents. In some states, the attorney can also recommend which parent should have custody and terms of any visitation. Part of the attorney’s duties may include the duty to investigate the facts and present them as a report to the court, with or without a recommendation. Conflicts arise when the attorney and children disagree as to which parent should have custody. To avoid the potential conflict, the attorney should verify with the court what role to play in representing the children.

Duties of the Attorney

An appointed attorney has several duties: (1) investigating the case, by interviewing the parents and the children separately and together, and by interviewing school teachers, family members, and others who have had the opportunity to watch the interaction of the children and their parents; (2) representing the child or children in court proceedings; and (3) developing plans for the disposition of the custody and visitation of the children. This should all be accomplished without undue trauma to the children. Representing the child includes participating in any trial by calling and examining witnesses, making motions and objections, and offering opening and closing statements.

When the attorney believes that it would be in the best interests of the children to be in the custody of one parent, with visitation with the other, and the children strongly disagree, the attorney has the duty of pointing out the discrepancy and reasons for the discrepancy to the court so that the court can fully explore the reasons given by the attorney and the children. It is for the court and not the attorney to make the final decision regarding custody.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.