COVID Court closures are expected to create a significant backlog of family cases and delays getting to trial and resolution. This is especially difficult for families whose complex situation calls for Court intervention, but access to the Court has been quite limited. What options do these families have while they await rescheduled hearing and trial dates & their day in Court?
This series of articles explores options to help stabilize families in crisis through:
· Parent Coordination
· Early Neutral Case Evaluation
· Child Counsel Representation
· Custody Evaluations
What is a Child Counsel?
Child Counsel attorneys are appointed by the Court to represent children in contested custody cases. This article focuses on:
· Best Interest Attorneys
· Child Advocate Attorneys
A Best Interest Attorney (or BIA) makes an independent assessment of what living arrangement, parenting time schedule (physical custody), and decision-making arrangement (legal custody) is in the child client’s best interests, in addition to making the child’s position part of the record (even if different from the BIA’s position about the child’s best interests).
A Child Advocate Attorney (or CAA) represents a child client who has “considered judgment” (an understanding of the risks and benefits of the child client’s positon and ability to communicate their wishes) in support and pursuit of the child’s position with the same duties of loyalty, confidentiality, and competence owed an adult client.
Child Counsel also includes the Child Privilege Attorney role, which is not addressed here.
What Does Child Counsel Representation Look Like?
Maryland’s Guidelines for Practice of Court-Appointed Lawyers Representing Children in Cases Involving Child Custody or Child Access set for the following duties in which the child’s attorney may engage:
· Meet with and interview the child, and advise the child of the scope of the representation.
· Investigate the relative abilities of the parties in their roles as parents or custodians.
· Visit the child in each home.
· Conduct individual interviews with parents, other parties, and collateral witnesses.
· Observe the child's interactions with each parent and each other party, individually.
· Review educational, medical, dental, psychiatric, psychological, or other records.
· Interview school personnel, childcare providers, healthcare providers, and mental health professionals involved with the child or family.
· File and respond to pleadings and motions.
· Participate in discovery.
· Participate in settlement negotiations.
· Participate in the trial, including calling witnesses and presenting evidence and argument, as appropriate.
· If the child is to meet with the judge or testify, prepare the child, familiarizing the child with the places, people, procedures, and questioning that the child will be exposed to, and seek to minimize any harm to the child from the process.
· Inform the child in a developmentally appropriate manner when the representation is ending.
A Child Counsel attorney does not testify at trial or file a report with the Court.
How Can Custody Evaluations Help During Court Backlog?
A Child Counsel attorney begins work when appointed (and if paid, when payment received). Otherwise, their work is not dictated by the Court’s schedule. Rather, a BIA or CAA can hit the ground running, investigate pressing issues, develop a position (either about the BIA child client’s best interests or promoting the CAA child client’s goals), and pursue that position, including through negotiations and settlement discussions.
While only a court can make a final, binding decision, in contested matters, a Child Counsel attorney can provide live/real time input about the child client, which may help stabilize a chaotic family situation either resulting in settlement or until the family can have its day in court.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law.