ULC

Representation of Children in Abuse, Neglect, and Custody Proceedings Act Summary

When a child is a party to, or a witness in, a court proceeding involving abuse, neglect, or custody, difficult issues can arise for attorneys involved in the proceeding.  Is the attorney’s duty to represent the child as a client (subject to the limits of the child’s ability to participate), or is it the attorney’s duty to represent the “best interests” of the child as defined by some external standard or the court?  Over the last ten years, numerous organizations and associations have attempted to address these and related issues, including the American Bar Association, the American Academy of Matrimonial Lawyers, the National Association of Counsel for Children, and the American Law Institute.  While each of these organizations has produced standards for child representation, the standards have differed significantly and have been adopted unevenly.

 

In 2006, the Uniform Law Commission promulgated the Uniform Representation of Children in Abuse, Neglect, and Custody Proceedings Act (URCANCPA).  The act provides clear statutory language that will help to eliminate the problems caused by disparate State statutes while enhancing the quality and professionalism of child representation throughout the States.

 

The act calls for three specific categories of representatives for children—the child’s attorney, the best interests attorney, and the court-appointed advisor.  The first type of representative, the child’s attorney, enters into a traditional attorney-client relationship with the child and is subject to traditional ethical and professional regulations regarding the attorney-client relationship.  Therefore, the child’s attorney is generally required to advocate for the child’s expressed objectives rather than what the attorney subjectively may believe is in the child’s best interest.  If the child is incapable or unwilling to direct the attorney on a particular issue, the attorney may then act in the child’s best interests so long as that interest is not in conflict with the child’s objectives.  If a situation arises in which the attorney feels the child’s objectives put the child at risk of substantial harm, the act requires that the attorney request a court-appointed advisor for the child or withdraw from representation and request the appointment of a best interests attorney.

 

A best interests attorney, quite differently, is charged primarily with advocating for the child’s best interests.  Under the act, a child’s best interests are not determined subjectively by the attorney; rather, the best interests attorney looks to established legal standards.  While this means that the attorney isn’t bound by the child’s expressed objectives, the attorney is still obligated to take those objectives—and the underlying reasoning—into account.  Because the best interests attorney is, as the name implies, a licensed attorney, he or she is bound by traditional attorney-client disclosure rules.  Nonetheless, the act provides an exception to that general rule permitting the best interests attorney to make use of the information in the confidential communications from the child for purposes of the representation as long as the attorney does not disclose the source of that information.  Thus, if a child were to disclose a parent’s alcoholism to the best interests attorney, the attorney could use that information to conduct an independent investigation of the parent and could submit the results of that investigation as evidence, but the attorney could not reveal that the child was the initial source of the information.

 

The final category of representative addressed by the act is the court-appointed advisor.  The advisor’s primary duty is to assist the court in determining the child’s best interests by investigating the case and reporting findings to the court.  While the advisor may be a licensed attorney, a license to practice law is not necessary and, in fact, the advisor is not permitted to perform acts otherwise restricted to a licensed attorney.

 

One of the fundamental principles of the act is that an attorney—either a child’s attorney or a best interests attorney—should be appointed for every child subject to an abuse or neglect proceeding due to the significant impact an order arising out of such a proceeding will have on the child’s future.  This principle, which is consistent with both American Bar Association’s policy and current legal trends, is intended to protect the child’s interests and insure that any court order is based on a thorough assessment of the child’s circumstances.  Mandatory appointment of an attorney may also help States comply with federal law.  Under the federal Child Abuse Prevention and Treatment Act (CAPTA), States are required to appoint a guardian to advocate for the child’s best interests in an abuse or neglect proceeding in order to receive federal CAPTA funding.  CAPTA expressly permits this guardian to be an attorney.  Therefore, States may satisfy their requirements under CAPTA by appointing either a best interests attorney or a court-appointed advisor pursuant to URCANCPA.

 

Appointment of a representative is not always mandatory under the act.  Recognizing that the appointment of a representative in child custody proceedings may serve to exacerbate acrimony between the parties or create significant financial burdens, the Uniform Law Commission drafted the act to leave appointment of a representative to judicial discretion in child custody proceedings.  While the appointment is fully within the courts discretion, the act supplies several factors for consideration by the court including the child’s desire for a representative or any inappropriate adult influence or manipulation of the child.

 

At the time of the initial appointment, whether mandatory or discretionary, the court may appoint a child’s attorney or a best interests attorney.  The act does, however, permit the court to later add a second attorney of the other type, to allow a child’s attorney to withdraw and be replaced by a best interests attorney, or to allow the best interests attorney to be reappointed as a child’s attorney.  The court-appointed advisor may be appointed at the time of the initial appointment or later in the proceeding regardless of the type of attorney, if any, the court initially chooses to appoint.

 

The URCANCPA is ultimately an act drafted to protect children.  Inadequate, ambiguous, and widely varying State laws regarding representation frustrate efforts by the States and by the courts to insure that children’s best interests and expressed objectives are fully protected in proceedings involving abuse, neglect, or custody.  By enacting the URCANCPA, States can provide their courts with solid statutory guidance on representation and work towards developing a sensible nationwide approach to protecting children’s right to competent representation.