APPENDIX 19-D. MARYLAND GUIDELINES FOR PRACTICE FOR COURT-APPOINTED ATTORNEYS REPRESENTING CHIL...
West's Annotated Code of MarylandMaryland Rules
MD Rules Attorneys, Appendix 19-D
APPENDIX 19-D. MARYLAND GUIDELINES FOR PRACTICE FOR COURT-APPOINTED ATTORNEYS REPRESENTING CHILDREN IN CASES INVOLVING CHILD CUSTODY OR CHILD ACCESS
Introduction and Scope
These Guidelines are intended to promote good practice and consistency in the appointment and performance of attorneys for children in cases involving child custody and child access decisions. However, the failure to follow a Guideline does not itself give rise to a cause of action against an attorney nor does it create any presumption that a legal duty has been breached. These Guidelines apply to divorce, custody, visitation, domestic violence, and other civil cases where the court may be called upon to decide issues relating to child custody or access. Nothing contained in the Guidelines is intended to modify, amend, or alter the fiduciary duty that an attorney owes to a client pursuant to the Maryland Attorneys' Rules of Professional Conduct.
These Guidelines do not apply to Child In Need of Assistance (“CINA”), Termination of Parental Rights (“TPR”), or adoption cases. The appointment and performance of attorneys appointed to represent children in those cases is addressed by the Guidelines of Advocacy for Attorneys Representing Children in CINA and Related TPR and Adoption Proceedings.
1. Definitions.--A court that appoints an attorney for a minor child in a case involving child custody or child access issues should clearly indicate in the appointment order, and in all communications with the attorney, the parties, and other attorneys, the role expected of child's attorney. The terminology and roles used should be in accordance with the definitions in Guidelines 1.1--1.3.
1.1. Child's Best Interest Attorney.--“Child's Best Interest Attorney” means an attorney appointed by a court for the purpose of protecting a child's best interest, without being bound by the child's directives or objectives. This term replaces the term “guardian ad litem.” The Child's Best Interest Attorney makes an independent assessment of what is in the child's best interest and advocates for that before the court, even if it requires the disclosure of confidential information. The best interest attorney should ensure that the child's position is made a part of the record whether or not different from the position that the attorney advocates.
1.2. Child's Advocate Attorney.--“Child's Advocate Attorney” means an attorney appointed by a court to provide an independent attorney for a child. This term replaces the less specific phrase, “child's attorney.” A Child's Advocate Attorney owes the child the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client. A Child's Advocate Attorney should be appointed when the child is need of a voice in court, such as in relocation cases, when there are allegations of child abuse, or where the child is sufficiently mature and sees his or her interests as distinct from the interests of the child's parents.
1.3. Child's Privilege Attorney.--“Child's Privilege Attorney” means an attorney appointed by a court in a case involving child custody or child access to decide whether to assert or waive, on behalf of a minor child, any privilege that the child if an adult would be entitled to assert or waive. This term replaces the term “Nagle v. Hooks Attorney.” (Nagle v. Hooks, 296 Md. 123 (1983)). The court may combine the roles of Child's Privilege Attorney with either of the other two roles.
2.1. Determining considered judgment.--The attorney should determine whether the child has considered judgment. To determine whether the child has considered judgment, the attorney should focus on the child's decision-making process, rather than the child's decision. The attorney should determine whether the child can understand the risks and benefits of the child's legal position and whether the child can reasonably communicate the child's wishes. The attorney should consider the following factors when determining whether the child has considered judgment:
A child may be capable of considered judgment even though the child has a significant cognitive or emotional disability. In determining whether a child has considered judgment, the attorney may seek guidance from professionals, family members, school officials, and other concerned persons. The attorney also should determine whether any evaluations are needed and request them when appropriate.
An attorney should be sensitive to cultural, racial, ethnic, or economic differences between the attorney and the child.
2.2. Child's Best Interest Attorney.--A Child's Best Interest Attorney advances a position that the attorney believes is in the child's best interest. Even if the attorney advocates a position different from the child's wishes, the attorney should ensure that the child's position is made a part of the record. A Child's Best Interest Attorney may perform the following duties in fulfilling the attorney's obligation to the client and the court, as appropriate:
2.3. Child's Advocate Attorney.--If a Child's Advocate Attorney determines that the child has considered judgment, the attorney advances the child's wishes and desires in the pending matter. If a Child's Advocate Attorney determines that the child does not have considered judgment, the Child's Advocate Attorney should petition the court to (1) alter the attorney's role to permit the attorney to serve as a Child's Best Interest Attorney or (2) appoint a separate Child's Best Interest Attorney. A Child's Advocate Attorney may perform the following duties in fulfilling the attorney's obligation to the child and the court, as appropriate:
A Child's Advocate Attorney shall not testify at trial or file a report with the court.
2.4. Child's Privilege Attorney.--A Child's Privilege Attorney notifies the court and the parties of the attorney's decision to waive or assert the child's privilege by (1) filing a document with the court prior to the hearing or trial at which the privilege is to be asserted or waived or (2) placing the waiver or assertion of privilege on the record at a pretrial proceeding or the trial.
A Child's Privilege Attorney may perform the following duties in fulfilling the attorney's obligation to the child and the court, as appropriate:
If a conflict of interest develops, the attorney should bring the conflict to the attention of the court as soon as possible, in a manner that does not compromise either client's interests.
In addition, courts should seek to appoint attorneys who:
6.3. Fee waivers.--Each court should prepare its budget to ensure that it has sufficient funds to cover the expense of attorneys' fees for children when the parties are not able to pay the full fees, or the court should develop a pro bono publico component to its program to provide attorneys for children. Each court should apply the same fee waiver procedure, forms, and standard for the appointment of an attorney for a child that are set forth in the Guidelines for Grant Recipients for all family services funded by the Family Division/Family Services Program Grants. If a fee waiver is granted, the court should apply a cap on compensation that is appropriate to the role for which a child's attorney is appointed.
[Adopted June 6, 2016, eff. July 1, 2016.]
MD R Attorneys, Appendix 19-D, MD R ATTORNEYS Appendix 19-D
Current with amendments received through February 1, 2023. Some sections may be more current, see credits for details.
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