Elrod Discusses ABA Standards for Lawyers Representing Children in Custody Cases
Professor Linda Elrod, Director of the Children and Family Law Center, discussed the newly adopted American Bar Association (ABA) Standards for Lawyers Representing Children in Custody Cases at Washburn Law, Friday, November 7, 2003. Professor Elrod's presentation was based on her recent article, "Raising the Bar for Lawyers Who Represent Children: ABA Standards of Practice for Custody Cases," published in the Summer 2003 issue of Family Law Quarterly.
The Standards were proposed by the ABA Family Law Section after a ten year drafting process. The ABA adopted them in August 2003 at their Annual meeting. These Standards follow closely the ABA Standards for Lawyers Who Represent Children in Abuse and Neglect Cases, adopted in 1996.
Among the key points of the Standards are that lawyers should always act as lawyers, whether the lawyer is representing the child as an advocate or as a best interest lawyer. The Custody Standards abolish use of the term "guardian ad litem" for a lawyer's role. The guardian ad litem who does an investigation, writes up a report, testifies and is cross examined is reserved for someone acting in a nonlawyer capacity. Both the child's attorney, who represents a child client as any other client, and the best interest lawyer, who represents the best interest of the child, conduct their activities as lawyers-- they meet with the client, give advice, file motions, ask for investigations, present evidence, examine and cross-examine witnesses, and may appeal.
The Custody Standards provide a list for judges of when a lawyer should be appointed - with the judge having the discretion to appoint a child advocate or a best interest lawyer. The Standards mandate specialized child advocacy training for both types of lawyers. The Standards require clear understanding of the role the lawyer is to play. The appointment order must be in plain English and sent to parents and also their counsel. The Standards require adequate compensation for lawyers who represent children.
Professor Elrod indicated that the Standards are a major step forward in providing a voice for children.
