Attorneys for Children During a Divorce
Many people going through a tumultuous divorce have the difficult decision of whether to ask the Court to appoint an attorney to represent their child(ren). What many litigants may not know is that there are actually, with each type of attorney having an entirely different role. Whether your child needs an attorney is up to the facts of the case, and, ultimately, whether the Court believes appointment is necessary. However, understanding each category of attorney for a child is paramount to understanding your options.
Child’s Privilege Attorney (often referred to in Maryland as a Nagle v. Hooks attorney). The Privilege Attorney has the most limited role during a divorce. Simply put, his/her role is whether to waive the privilege that exists between a child and his/her mental health provider. If privilege is waived, that means the provider can testify and provide evidence to the Court. More likely than not, privilege will not be waived, and, when that happens, the treating provider is extremely limited in the information that can be provided, generally only being able to provide information related to facts (times of appointments, who brought the child to the appointment, etc.)
Best Interest Attorney. This is the most commonly appointed attorney in Maryland divorce proceedings. A Best Interest Attorney, commonly known as a BIA, is appointed to represent the child, with the goal being to provide the Court with a recommendation as to what is in the minor child’s best interest. Depending on the child’s age, that determination can consider the preferences of the minor child, but it will also consider any other factor the BIA determines to be in the child’s best interest. A BIA has a more expanded role than that of the CPA, and would meet with the child, the parents, doctors, and any other individual the BIA deems necessary to determine the best interest of the child.
Lastly, and the least commonly appointed attorney is a Child’s Advocate Attorney. An advocate attorney is appointed (not surprisingly) to advocate on behalf of his/her client, the minor child. Accordingly, the desires of the minor child are paramount in this type of representation. For that reason, a Child’s Advocate Attorney is generally only appointed in cases where the minor child is older, because the child has to have considered judgment in order to effectively convey his/her desires to the attorney.
Considering whether a parent requests a BIA or a Child’s Advocate Attorney is a choice for each individual parent to make. However, parents should consider many factors prior to making such an important decision, including, but not limited to, why the child feels the way they do, whether the child can effectively convey that information to an attorney, what outside influences may be in play, is the child’s behavior different than it was at a prior time, etc. The list of considerations is extensive.
The appointment of attorneys for children is governed by Maryland Rule 9-205.1. That Rule sets forth the factors the court considers for these requests as well as the content required in the subsequent Court order.
