andrea j. mooney whose voice…. andrea j. mooney clinical professor cornell law school
Post on 18-Dec-2015
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Representation of children Representation of children in the U.S.in the U.S.
• Parents speaking for children:Yoder v. WisconsinTinker v. DesMoines
Representation of children Representation of children in the U.S.in the U.S.
• Non-parents speaking for children:– Attorney for the child (“law guardian”)
• Represents child’s position/wishes
– Guardian ad litem• Represents child’s best interests
Guardian ad litemGuardian ad litem
• “ad litem” – for the case• May be a lawyer, social worker• Best interest representation• May/may not consult with child• May/may not inform court that this is
not what child wants
Representation of Representation of childrenchildren
• Most states appoint Guardians ad litem (GALs)
• Five states appoint lawyers for children• Some states do a hybrid: lawyers who
are acting as GALs
Problems with GAL Problems with GAL representationrepresentation
• Lawyer has a duty to “zealously advocate”
• Exception: if client is infant or incompetent
• Little guidance provided as to age or developmental level
• How can you zealously advocate if you are determining what is in the child’s best interest?
Representation of children
• Problems with straight attorney representation:– Can’t do it in every case– Little guidance as to age, developmental level– Lawyer must develop on-going relationship
with child and take developmental concerns into account
– “substituted judgment” too easy
When do children need When do children need representation?representation?
• State vs. child
• State vs. parent
• Parent vs. parent
• Parent vs. child
Children’s representation
• Except in parent v. parent (custody) cases, state must first prove that parent (or child) has done something before it can ask what is in the child’s best interest.
• Custody: only question is child’s best interest
State vs. ChildState vs. Child
• Juvenile delinquency– State is taking a child’s liberty away– Quasi-criminal procedures
• Status offenses– Truancy– Ungovernability– Incorrigibilty– Beyond the lawful control of a parent
State vs. ChildState vs. Child
• Lawyer almost universally functions as a “defense” attorney in J.D. cases
• Lawyer may also function as GAL in status offenses
State v. parent
• Child almost never in court
• Difficult for attorneys to zealously advocate for a client in some circumstances
• Hearsay exception to evidence rules allow someone else (caseworker, therapist) to testify as to what a child said, or even did
State vs. ParentState vs. Parent
• Child abuse or neglect: Jeremy’s story
• Ethical obligations of attorneys
Parent vs. Parent• Custody – representation for the
child is most often discretionary
• Ultimate question for the court is the child’s best interests
Parent v. Parent
• Court may speak with child in chambers
• May aggravate the “Gumby-syndrome”
• Children need to know what power they have/do not have
The child’s voiceThe child’s voice
• In GAL cases, may not ever be heard
• In attorney for the child, may be heard
The child’s voiceThe child’s voice
• Children only come to court in JD and Status offense cases
• Children rarely testify in court• Children come to court for a
permanency hearing, but are not really “heard.”
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