Document Type

Article

Publication Date

2000

Abstract

The thesis of this article is that it is a mistake to try to develop a single lawyer role for children in protection cases which tries to accommodate their developing capacities from infants to articulate teens. Sometimes a child needs a traditional attorney; sometimes a best interests advocate. We should adopt different standards for the different lawyer roles. Trying to define a single lawyer role for children of all ages and all capacities is an impossible task. This article argues that we should resolve the ambivalence not by adopting a client-directed or a best interests approach, but by having two sets of standards-one for the client-directed attorney role and one for a best interests guardian ad litem (GAL). Both roles should be clearly established, aggressive, active, and the court should appoint either one or the other, or both, under certain circumstances as set out in law. Legal principles can guide the GAL's best interests determination to limit the unrestrained discretion so properly complained about by legal scholars. This article criticizes the current client-directed models because they contain within themselves the sort of unrestrained and unreviewed discretion that the proponents complain about in the best interests model.

Comments

2000, Published in Family Law Quarterly 34, no. 3, Fall (2000), by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association

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