What Is a Child's Counsel?
Child's counsel is an attorney appointed by the court to represent a child's interests in custody proceedings. Unlike the parents' attorneys who advocate for their clients, child's counsel focuses solely on what is best for the child. At Leffler, Bayoumi & Oliver, LLC, we have attorneys certified to serve as child's counsel, and we also represent parents in cases where child's counsel has been appointed.
When Is a Child's Counsel Appointed?
Courts typically appoint child's counsel in situations involving:
- High-conflict custody disputes
- Allegations of abuse or neglect
- Parental mental health or substance abuse issues
- Relocation disputes
- Cases where the child's wishes may differ from both parents
- Children with special needs
Like most family law issues, whether it is appropriate to appoint a child's counsel in a custody dispute is highly fact-specific. Even in the above types of cases, the appointment can depend on the complexity and severity of the circumstances affecting the child and the overall custody dispute. It may also depend on the child's age, since cases involving very young children are best suited for a court or private custody evaluation by a social worker or psychologist.
Types of Child Representatives
Maryland recognizes different roles for attorneys representing children:
Best Interest Attorney (BIA)
A BIA advocates for what they determine to be in the child's best interest, which may or may not align with the child's expressed wishes. The BIA conducts an independent investigation, which includes interviewing the child, parents, and relevant third parties. The BIA is also required to review relevant documents and records. While the BIA often tries to work with the parents to reach a child-centered resolution to their custody dispute, their ultimate responsibility is to ensure that at a custody hearing, the Court is hearing the relevant and necessary evidence to make the most informed decision regarding a custodial resolution that meets the child's best interest. Often, but not always, a BIA may make her own recommendations to the Court based on her investigation as to the appropriate custodial outcome for the child.
Child Advocate Attorney
A child advocate attorney represents the child's expressed wishes, similar to how an attorney represents an adult client. This role is typically only appropriate in limited cases involving older children who can articulate their preferences.
Child Privilege Attorney
A Child Privilege Attorney is a court-appointed attorney who represents a child for the limited purpose of protecting the child's legal confidentiality with respect to mental health. This role arises when the child is in, or requires, therapy and/or counseling. Because children cannot decide on their own whether those private communications should be shared, the attorney reviews the information and advises the court on whether disclosure is in the child's best interest. The goal is to safeguard the child's privacy while ensuring the court has only the information truly necessary to make informed decisions. A Best Interest Attorney is also a Child Privilege Attorney.
What Child's Counsel Does
Child's counsel performs various functions:
Investigation
- Meeting with the child in age-appropriate settings
- Interviewing both parents
- Speaking with teachers, therapists, and other caregivers
- Reviewing school and medical records
- Observing the child with each parent when appropriate
- Observing the child's home environment with each parent
- Reviewing court documents and prior orders
Court Participation
- Appearing at hearings and trial
- Cross-examining witnesses
- Presenting evidence relevant to the child's interests
- Making recommendations to the court when appropriate
- Filing motions when needed to protect the child
- Conducting discovery
Ongoing Involvement
- Monitoring the child's situation during the case
- Explaining, in a developmentally appropriate way, the status and/or progress of the court proceeding to the child
- Recommending resources necessary for the child, if needed
The Child's Voice
One crucial role of child's counsel is ensuring the child's perspective is heard. Depending on the age of the child, the child's preference may not have a significant bearing on a recommendation the counsel may make regarding a custodial outcome. An experienced child's counsel looks beyond the surface of what a child says they want, carefully evaluating whether the preference comes from the child's true comfort and stability, or from outside influences, differing parenting styles, or subtle pressure. Ultimately, the attorney helps the court understand the child's complex feelings.
Confidentiality With Children
Communications between child's counsel and the child are confidential and protected by the attorney-client privilege. The attorney may need to share information with the court if there is child abuse or other physical safety concerns must be reported.
Cost of Child's Counsel
The court typically allocates child's counsel fees equally between the parents. However, the court may deviate from that depending on each parent's ability to pay, which parent requested the appointment, and which parent's conduct made appointment necessary.
Working With Child's Counsel
If child's counsel has been appointed in your case, your full cooperation is necessary. Discuss expectations with your attorney before your meeting and ensure that you are providing the child's counsel with the access and documentation they request. It is also important to remember that this attorney is not working for either parent or the child directly but is serving as a resource for the court to help the court ensure that the child's best interests are protected in contentious custody disputes.
When Recommendations Differ
If the child counsel makes a recommendation and you disagree with their recommendations, there are efforts your attorney can take to try to discredit the recommendation. At trial, your attorney can present contrary evidence. Remember that the judge makes the final decision, not child's counsel. Recommendations are influential but not binding.
Our Services
At Leffler, Bayoumi & Oliver, LLC, our attorneys serve both as court-appointed child's counsel and as advocates for parents in cases where child's counsel is involved. We help clients navigate the process thoughtfully and provide strategic representation when recommendations are challenged or contested.
Contact us to learn how child's counsel may impact your custody matter.
