Representing Children Who Can’t or Won’t Direct Counsel: Best Interests Lawyering or No Lawyer at All?

Abstract:     
Child advocacy groups argue with increasing force that children’s lawyers should function as traditional, client-directed attorneys and that lawyers overstep their professional role when they represent children’s interests rather than children’s wishes. Consistent with this trend, the American Academy of Matrimonial Lawyers recently revised its standards for representation of children to flatly oppose the appointment of lawyers for children who lack capacity to direct counsel. This Article questions the Academy’s stance and contends that the professional role of an attorney is sufficiently flexible to encompass the representation of children who are unable or unwilling to provide coherent direction for counsel. Acting as fiduciary, counselor, and advocate, a lawyer for the non-directive child can maintain professional boundaries and still ensure that the decision-maker acts with knowledge of the child’s perspective. Even for the pre-verbal child, a lawyer can take legal actions to protect the child in the litigation process and convey the child’s world to the court through traditional avenues, including witness testimony and documentary evidence. Because Arizona court rules have authorized the appointment of best interests attorneys in family court since 2006, the Arizona experience is instructive. This article reports on a series of interviews in which Arizona family and juvenile court judges share their perspectives on children’s representatives in general and best interests attorneys in particular.

Number of Pages in PDF File: 45

Keywords: child custody, guardian ad litem, representation, ethics, professional responsibility, child development, divorce, best interests, capacity, attorney-client

Accepted Paper Series