Child custody and child access cases can be fraught with difficulties, high conflict, and/or dangers for the children involved. To represent the interests of children in these circumstances, judges may appoint a trained Child’s Attorney pursuant to Maryland Rule 9-205.1. Alternatively, the parties may agree to the appointment of an attorney for their child or children who advocates for their best interests.
When to Appoint a Child Counsel Attorney
Child Counsel Attorney appointments are traditionally approved in cases that involve:
- Abuse, neglect or family violence
- Alcohol or substance abuse
- High conflict
- Inappropriate adult influence or manipulation
- Mental health problems of the child or a party
- Physical, educational, or mental health needs of the child requiring investigation or advocacy
- Possible termination of parenting time or awarding custody or visitation to a non-parent
- Relocation that substantially reduces the child’s time with a parent or sibling
- Request of one or both parties
The 3 Different Types of Child Counsel Attorneys
There are three types of Child Counsel Attorneys that can be appointed, depending upon the purpose of the appointment and circumstances of the particular case.
- A Child Privilege Attorney (CPA) acts as a gatekeeper and determines whether or not a child’s legally confidential and privileged information should be shared. The types of confidential and privileged information are most often kept with a mental health professional. Mental health professionals who commonly interact with and gather information from children in these cases include psychologists, psychiatrists, social workers, licensed professional counselors or health providers.
If a CPA “waives privilege”, a mental health professional who has interacted with the child may testify in court or disclose any known information about the child. If a CPA “asserts privilege”, a mental health professional will be prevented from testifying or sharing information. The trained CPA determines whether the child’s confidential information is necessary to disclose for the optimal outcome for the child. If not necessary for this purpose, it is protected.
Parents, even if they agree, cannot waive privilege on behalf of their child, and a minor is unable to waive their own privilege. The CPA must consider whether waiving privilege will damage the therapeutic relationship that has been established between the child and their mental health provider, or if the need to have the provider testify outweighs that risk.
- A Best Interest Attorney (BIA)’s role includes that of a CPA, except they also decide upon a path forward that is in the child’s best interest. A BIA advocates for the child during the litigation process, just as each parent may have their own counsel advocating on their behalf. Advocating for the child may entail disclosing the child’s information, if its disclosure is deemed to be in the child’s best interest. With adult clients, attorneys typically keep attorney-client information confidential, however, BIAs are not required to do so in child custody, access or support cases. It should be noted that BIAs are also required to disclose the child’s preferences during a hearing, even though the child’s position may differ from the position of the BIA.
Thorough research is required on behalf of the BIA, to make a decision that is truly in the best interest of the child. This research may include interviewing the child, interviewing the parents or any witnesses, observing the child with the parents or witnesses, interviewing the child’s teachers or school personnel, reviewing mental or physical health records, and visiting the child’s home or homes.
- A Child Advocate Attorney (CAA) serves as an independent attorney for the child. With a CAA, a child client is treated as an adult client, as the CAA provides the child with the same confidentiality and full representation as an adult would receive. A CAA may be appointed when a child displays a level of maturity and competence known as “considered judgment”.
Factors that contribute to a child’s judgment, making them reasonably eligible to have a CAA, include developmental stage, ability to communicate, ability to reason about their legal position, among other qualities showcasing the child’s maturity level.
A CAA is appropriate if and when the child’s interests are deemed different or separate from those of their parents. It should be noted that without a CAA, a judge may choose to interview a child independently. This information is usually less comprehensive and accurate, is included as a part of the official case, and is not confidential.
Maryland law authorizes the Court to appoint Child Counsel Attorneys in child custody or child support cases when need is shown. County courts in Maryland determine associated fees or fee arrangements, including pro bono representation. An attorney may be appointed for multiple siblings, though a conflict of interest could preclude joint representation. Several attorneys at TNS Family Law are certified and experienced child counsel, including Christopher Nicholson, Mary Roby Sanders, Rebecca Fleming, Alaina Storie and Snehal Massey.
If you have questions about Child Counsel Attorneys, please contact Turnbull, Nicholson & Sanders, P.A. at (410) 339-4100 or info@tnsfamilylaw.com. Our team of family law attorneys is here to help guide you.
Related Posts:
Can I Modify My Child Custody Agreement?
Divorcing During the Pandemic: Parent Coordination
What Are the Grounds For Absolute Divorce in Maryland?
Maryland Divorce FAQs