Rule 10, Part 3

by Annette Burns on March 18, 2013

This is the third of three posts about Rule 10, Arizona Rules of Family Law Procedure.   Rule 10 covers the use of either a best interests attorney or an attorney for the child in a family court proceeding.  What’s the difference between a best interests attorney and an attorney for the child?   That distinction, too complex to deal with in a Rule, comes from other sources referred to in the Comments to Rule 10:

COMMITTEE COMMENT [AMENDED 2007]

The American Bar Association Standards of Practice for Lawyers Representing Children in Custody Cases, adopted August 2003, provides guidance to the court, counsel, and litigants about the appointment of attorneys for children. The Standards include suggestions about when and how an attorney should be appointed, and in which capacity, and detail what the attorney’s responsibilities are to the court and the client.

A court-appointed advisor shall not function as an attorney but shall independently investigate the case and make recommendations to the court. The National Conference of Commissioners on Uniform State Laws 2005 draft of the Representation of Children in Abuse and Neglect and Custody Proceedings Act provides guidance to the court, court-appointed advisors and litigants about the appointment of court-appointed advisors, as well as their role and responsibilities.

(The latter Act was last revised/ amended in 2007, not 2005 as the Rule Comment states.)

At the risk of oversimplifying, the easiest answer to the difference between the two types of attorneys is set out in the ABA Standards of Practice:

“Child’s Attorney”: A lawyer who provides independent legal counsel for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.   

“Best Interests Attorney”: A lawyer who provides independent legal services for the purpose of protecting a child’s best interests, without being bound by the child’s directives or objectives. 

(Emphasis added)

So, the oversimplified explanation of the two roles is that an attorney for a child treats the child as an adult.    Positions for hearing are discussed with the child along with the reasonableness and legal ramifications of them, and the child’s wishes are advocated by the attorney.  The attorney does not substitute his or her judgment for the child, even if the attorney has a different view of what might be best for the child.    As with adult representation, however, the attorney can explain to his child-client that the attorney feels the child’s position or wishes are not justified or may not be adopted by the court, and the potential ramifications of taking those positions in court.  If the child insists that his wishes be promoted, the attorney must either advocate for those positions or withdraw, if he cannot.    The best interests attorney must, however, gather information from all available and relevant sources and come to his or her own conclusion about what is in the best interests in a particular case, and then files a position statement and examines witnesses designed to promote that best interests position to the court.

The age of the child-client is obviously crucial in these two roles.    While no specific age parameters are set, it would be difficult or impossible to act as attorney for a child who is simply too young to promote a position or discuss the ramifications of taking a certain position.     It is probably safe to assume that a child younger than eight is not competent to understand concepts sufficiently to be represented “as an adult”, and therefore a best interests attorney is the only option for an under-eight child.    Similarly, children age 12 and over may be presumed to have the necessary skills to understand concepts to assist in their own representation, and therefore a child’s attorney may be the best option for ages 12 and over.  That analysis (strictly my own) leaves children ages 8-12 in a zone of uncertainty.    An attorney appointed in either capacity for children age 8-12, or for children whose cognitive abilities are compromised by learning disabilities or other factors, or who show a great level of immaturity, should ask for guidance from the court if the attorney determines that he or she may have been appointed in the wrong capacity for the case.   A thorough review of the ABA Standards of Practice should also be made.   Some of the duties listed in the Standards apply to both types of representation, and the Standards give valuable advice about particular situations such as potential conflicts of interest between children of different ages and interests.

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