by Thelma S. Clardy
In family law cases, an attorney must sometimes be appointed to represent a child. The issue thus arises what type of attorney should be appointed: guardian ad litem or attorney ad litem. There is also another type: amicus attorney. For purposes of this article, however, discussion will focus on the appointment of a guardian or attorney ad litem.
Under certain types of cases, the type of ad litem is determined by statute. Specifically, when a juvenile child is placed in the juvenile court system, the court is obligated to appoint an attorney for that child if the child’s family does not have the financial ability to retain an attorney.
In other types of cases as well, there may be a need for the child to have his or her own attorney, in either the form of an attorney ad litem or guardian ad litem. One might ask, what is the difference between the attorney ad litem and guardian ad litem?
Chapter 107 of the Texas Family Code, among other things, gives definitions for attorney ad litem and guardian ad litem. Specifically, Section107.001 defines attorney ad litem as an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation. (emphasis added).
On the other hand, a guardian ad litem is a person appointed to represent the “best interests of a child.” Thus, a guardian ad litem does not have to be an attorney and may be a volunteer advocate (such as a CASA volunteer), a professional other than an attorney who holds a relevant professional license and whose training relates to the determination of a child’s best interest, or an adult having the competence, training and expertise determined by the court to be sufficient to represent the best interest of the child; or an attorney ad litem. T.F.C. Section 107.001(5) (A)(B)(C), and (D). Thus, an attorney may serve in the dual capacity of an attorney and guardian ad litem.
The role of an attorney ad litem is to represent the child as he or she would represent any other client and the disciplinary rules of professional conduct apply equally to the attorney ad litem representing a child. T.F.C. Section 107.003(a). Additionally, under the Texas Family Code, an attorney ad litem shall, among other things, interview the child in a developmentally appropriate manner for a child 4 years of age or older, as well as interview each person who has significant knowledge of the child’s history and condition, including any foster parent of the child. It is imperative that the attorney ad litem investigate the child’s background in order to appropriately represent the child. The attorney may also request a hearing, consent or refuse to consent to an interview of the child by another attorney, receive pleadings, and file pleadings on behalf of the child.
Similarly, the guardian ad litem’s role is to obtain and review copies of the child’s relevant medical, psychological and school records, interview the child as well as each person who has significant knowledge of the child’s history and condition. T.F. C. 107.002 (a)-(b)(1) (2). However, while an attorney ad litem may call and question witnesses, a guardian ad litem cannot. T.F.C. Sec. 107.002(C)(4). This is understandable since the guardian ad litem may not necessarily be an attorney, but again, it is the guardian’s role to advocate for the best interests of the child, which is the overriding concern in any lawsuit involving a child.
When a conflict arises sometimes between the child’s stated best interest and the attorney’s need to advocate for the child, it is important for the attorney ad litem to ascertain whether the child can meaningfully participate in the legal proceedings. If not, the attorney ad litem should ensure that the guardian ad litem’s opinion and basis for any recommendation regarding the best interests of the child are presented to the court, and may present to the court a position that the attorney determines will serve the best interests of the child. T.F.C. section 107.008(c)(1).
Representing a child can be tricky at times. However, any attorney appointed or retained to represent a child should be sure to familiarize himself or herself with the requirements outlined in Chapter 107 of the Texas Family Code, a portion of which has been outlined herein.
Thelma Clardy is a solo practitioner. She can be reached at email@example.com.