In a child custody case, or a contested child support case, the judge may choose to appoint a lawyer for the child. The judge may also choose to interview the child personally. A child who is at least 16 years old may also choose to ask for a custody change directly.
The judge may appoint a lawyer to serve one of three different roles.
- A “child privilege attorney” decides whether a child’s confidential or privileged information should be released in court.
- A “best interest attorney” advocates for the child’s best interests.
- A “child advocate” advocates for the child’s wishes.
Child Privilege Attorney
The law allows children (and adults) to keep certain communications and information private. The child privilege attorney decides whether it is in the child’s best interest to release protected information in the court case. A child’s parents cannot force the child to give up (or “waive”) this privilege. The privilege often relates to information from a child’s psychiatrist, psychologist, therapist, or social worker. The attorney can also waive the privilege for other confidential communications, such as those with a religious entity or with a drug and alcohol counselor. A child privilege attorney must assert a child’s privilege and ensure that information is kept confidential if the attorney decides that doing so is in the child’s best interest. The court must appoint a child privilege attorney when a minor is not mature enough to exercise his or her own privilege.
Best Interest Attorney
A best interest attorney independently decides what custody arrangement he or she believes is best for the child. The attorney must tell the court what the child wants, but is not required to ask the court to do what the child wants. A best interest attorney is allowed to share confidential information with the court (even though usually attorneys are required to keep their attorney-client communications confidential.) The court decides in each case whether or not to appoint a best interest attorney. The Maryland Rules provide a list of reasons that may convince a judge to appoint a best interest attorney. These reasons include a high level of conflict and inappropriate adult influence and manipulation. A best interest attorney may not testify or be cross-examined in court.
Read the Rule: MD Rule 9-205.1
A child advocate serves as an independent lawyer for the child. A child advocate must treat child client the same way that they would treat an adult client. The attorney must follow the client’s instructions, whether or not he or she believes that course of action is in the client’s best interest. The attorney must keep attorney-client communications confidential. A child advocate is generally only appropriate where the child is mature and thinks his or her own interests are different from those of the parents.
Alternatives to a Child Advocate
When there is no attorney to advocate on a child’s behalf, the judge may choose to interview the child in the judge’s chambers to hear the child’s wishes or views. The judge usually only interviews the child once, at the time of the merits hearing (the main court date for the case). These interviews are part of the official case. They are not confidential and are generally recorded.
Paying for the appointed lawyer
An interview with the judge in chambers is less expensive than using an appointed attorney. (Parents are often required to pay for their child’s attorney’s fees, although it is possible that a child advocate may be appointed without cost to the parties.) However, official interviews with judges can be stressful and scary for the child, because they are conducted in the courthouse and because the judge is a stranger to the child. The judge, unlike a child advocate, will not have a chance to develop a relationship with the child. Also, the judge cannot gather and review as much evidence as a child’s attorney can.
In rare instances a child can be his or her own direct advocate. In Maryland, a child who is at least 16 years old has the right to petition for a change in custody if they choose to.