Jeanne M. Huey
Managing Partner — Hunt Huey PLLC
SUMMER 2019 ISSUE:
FAMILY LAW MATTERS
For most of us, getting caught up in a family court custody case can be both frightening and confusing. This is true whether you are a parent or guardian of a child, or just a witness who cares about the child. It is frightening because the stakes are so high. It is confusing because the attorneys and judges have duties and rules they must follow that you may not know about. When the court appoints an attorney on behalf of a child, it complicates things even more because the parent or guardian does not control what that court-appointed attorney does on behalf of the child. In fact, the parent’s interests may conflict with the child’s if the parent is unable to provide a stable home environment.
The Texas Family Code can be found online. It contains rules court-appointed attorneys must follow and outlines their duties in family law cases.1 Texas laws are different than any other state. It is important that you only rely on the definitions in the Texas Family Code and not some other general description of court-appointed attorneys—typically referred to as an “ad litem” attorney—that are available on the internet.
The court will usually appoint an attorney on behalf of a child when it finds that the child’s interests are not being represented by any other party to the case.2 Put another way, when the court appoints an attorney in a case involving a child, it means that the judge believes no one in the case, such as the child’s guardians or the representative of the State of Texas, are adequately representing the child’s best interests, but rather their own interests as they relate to the child. The court- appointed attorney assists the court in answering the question: “What is in the child’s best interest?”3 There are many factors that a court considers when determining what is in the child’s best interest; those factors are outside the scope of this article but can be found online.4 In some situations the court is required to appoint an attorney for a child—such as a termination or conservatorship case filed by a governmental entity (i.e., the Texas Department of Family and Protective Services).5
The court-appointed attorney is tasked with doing what the court cannot. They go into the child’s home and school and meet with people who know the child’s circumstances. They then bring this information back to the court. Just how they do this and what information they bring to the court’s attention depends on the type of appointment the court makes.
There are two types of court-appointed attorneys in Texas, and each type has a different name, a different purpose, and different duties. In order to qualify for either appointment in a family law case, an attorney must “be trained in child advocacy or have experience determined by the court to be equivalent to that training.”6 Because of this, the court will usually appoint an attorney whose skills and experience it understands. The other attorneys involved in the case will probably know the appointed attorney as well. This is good to keep in mind if you need to talk about the court-appointed attorney to anyone else in the case. Know also that a court-appointed attorney does not work for free. They get paid. In certain circumstances, the court may even order one or both parents to pay part or all of their attorney’s fees.7
The first type of court-appointed attorney is called an “Amicus Attorney.”8 An Amicus Attorney is an attorney appointed to provide the legal services necessary to help the court protect a child's best interests, and does not actually provide legal services to the child.9 Because of this, an Amicus Attorney does not have an attorney-client relationship with the child and is not limited by the child’s wishes or directions in what they can recommend to the court as being in the child’s best interest.10
The second type of court-appointed attorney is an “Attorney ad litem."11 An Attorney ad litem has a more traditional attorney-client relationship with the child because they are appointed to provide the child with legal services.12 In providing these services, if the Attorney ad litem determines that the child can appropriately formulate a desire about what they want—and properly express it—the Attorney ad litem is required to do what the child wants.13 If the Attorney ad litem determines that the child cannot decide or express their objectives in a meaningful way, or, if it appears that the child has been improperly influenced or coached in what to say to the Attorney ad litem, then the attorney will take steps to determine what they believe is in the child’s best interest and advocate for that position on the child’s behalf.14
Another type of advocate a court may appoint for a minor child in a family law matter is a “Guardian ad litem.” You should know about this type of court appointment because a Guardian ad litem does not provide legal services to the child or the court—even if the role is filled by an attorney—but it will not be discussed further here.
As soon as an attorney is appointed as Amicus or Ad Litem for a child, the attorney will be allowed to meet and spend time with the child.15 The attorney will talk privately with the child—not the parents—about who they are, why they are there, and what the attorney’s job is, to determine what the child wants to have happen in the case—all in an age appropriate manner.16 The Amicus or Ad Litem will also have access to any of the child’s medical, school, or other records they may need to review in order to carry out their duties.17 They will take part in the case and be present at any hearing or other event just like any other party or attorney in that case.
Because of the relationship between the court-appointed attorney and the child, some parents or guardians want to talk to the child before they meet with the attorney to “clue them in” or even influence what the child is going to say in the private meeting. This is obviously a bad idea. It will make the child feel pressured and will usually result in negative consequences when the court finds out about it. Also, each time the child meets with or speaks with the appointed attorney, no one should question the child afterward about what was said. As difficult as it might be, letting the court-appointed attorney do their job without interfering and, of course, following your own attorney’s advice, are the best things you can do in this situation.
After meeting with the child, the court-appointed attorney must interview the other people involved in the child’s life.18 That may include parents, teachers, grandparents, babysitters, doctors, or anyone who the attorney determines has relevant information about the child’s circumstances. If you are a party to the case, a parent, or guardian, and you are interviewed by the Amicus attorney or Attorney ad litem, you should make sure that your own attorney is there with you. If you do not have an attorney when it comes time to meet with the court-appointed attorney, this is the time to do all you can to get one.
When meeting with the court-appointed attorney about the case, it is important to remember that this is an interview, not a conversation. You should be prepared just like you would for any important interview. Think about what you want to say beforehand and discuss it with your attorney. If you are meeting in your home, clean up and present your best self. You may want to gather photos and important documents, like the child’s report cards or medical or other records, that will help the court-appointed attorney understand the child’s situation—but, make sure that you have cleared it with your own attorney before sharing any documents or photos. After the interview, make sure that your attorney follows up and keeps you updated with what the court-appointed attorney is doing so that you can keep up with what is happening in the case and provide the court-appointed attorney with any additional information they may need as the case goes on. Politely asking for updates from the court-appointed attorney also shows you are interested and involved in the child’s life.
When you talk with the court-appointed attorney, remember that they cannot tell you confidential information that they have learned from the child, so don’t ask.19 They also cannot give you legal advice—and that probably includes explaining the next steps in the process to you.20 If they think you have asked something that requires legal advice, they will probably tell you that you should ask your own attorney and if you don’t have one, that you should get one. Do not be insulted by this. They do not say this because they are rude or don’t want to help you, but because the rules that govern an attorney’s conduct require that they respond this way to anyone who is not their client and asks for legal advice. Also, keep in mind that all attorneys (and judges) have a legal duty to report suspected physical or mental abuse or neglect of a child to the proper authorities.21
Finally, you should know that there are very limited circumstances under which a judge may want to meet with an Amicus attorney they have appointed. There is some question in Texas about whether this is ever proper, and only an attorney can tell you if it is appropriate in your case.22 You should know, however, that except for this very limited possibility, there is a strict rule against anyone involved in the lawsuit talking to the judge without all the parties to the case being there.23
The court-appointed attorney for a child in a family court case can have a significant impact on what the court finds is in the child’s best interest. By understanding and respecting the roles and responsibilities of the court-appointed attorney when you are involved in such a case, you can better interact with court-appointed attorneys and increase the chance of positively affecting the outcome.
1 Tex. Fam. Code § 7.001 et seq.
2 Tex. Fam. Code § 160.612.
3 Tex. Fam. Code § 153.002 (“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003); see also Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex. 1966).
4 In re Vogel, 261 S.W.3d 917, 923-24 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing In re C.A.M.M., 243 S.W.3d 211, 221 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)); see also Tex. Fam. Code § 263.307.
5 Tex. Fam. Code § 107.012.
6 Tex. Fam. Code § 107.003(a)(2).
7 Tex. Fam. Code § 107.021(b).
8 Tex. Fam. Code § 107.001 et seq.
9 Tex. Fam. Code § 107.001(1); O'Connor v. O'Connor, 245 S.W.3d 511, 515 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (trial court "is, in effect, the amicus attorney's client for a limited purpose").
10 In re Collins, 242 S.W.3d 837, 847 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding).
11 Tex. Fam. Code § 107.0131.
13 Tex. Fam. Code § 107.003(a)(1)(B), 107.004(a)(2).
14 Tex. Fam. Code § 107.008(b).
15 Tex. Fam. Code § 107.006(a), § 107.006(a).
16 Tex. Fam. Code § 107.003(a)(1)(B).
17 Tex. Fam. Code § 107.003(a)(1)(D).
18 Tex. Fam. Code § 107.003.
19 Tex. Disciplinary Rules Prof’l Conduct R. 1.05(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).
20 Tex. Disciplinary Rules Prof’l Conduct R. 4.03.
21 Tex. Fam. Code § 261.101, § 107.007(b).
22 In re S.A.G., 403 S.W.3d 907, 916 (Tex. App.—Texarkana 2013, pet. denied).
23 Tex. Code Jud. Conduct, Canon 3(B)(8) reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G, app. C.