Book contents
- Frontmatter
- Contents
- Acknowledgments
- Contributors
- 1 Children, Social Science, and the Law: An Introduction to the Issues
- PART I CHILDREN'S RIGHTS, THEIR CAPABILITIES, AND SOCIETY'S RESPONSIBILITIES TO CHILDREN
- 2 The Personal Responsibility and Work Opportunity Reconciliation Act of 1996: What Will It Mean for Children?
- 3 Advocacy for Children's Rights
- 4 Children's Rights and Capacities
- 5 Children's Legal Representation in Civil Litigation
- PART II CHILDREN AND FAMILY CHANGE
- PART III JUVENILE AGGRESSION AND JUVENILE JUSTICE
- PART IV CHILDREN AS VICTIMS AND WITNESSES
- PART V CONCLUSIONS AND FUTURE DIRECTIONS
- Author Index
- Case Index
- Subject Index
- References
5 - Children's Legal Representation in Civil Litigation
Published online by Cambridge University Press: 24 July 2009
Book contents
- Frontmatter
- Contents
- Acknowledgments
- Contributors
- 1 Children, Social Science, and the Law: An Introduction to the Issues
- PART I CHILDREN'S RIGHTS, THEIR CAPABILITIES, AND SOCIETY'S RESPONSIBILITIES TO CHILDREN
- 2 The Personal Responsibility and Work Opportunity Reconciliation Act of 1996: What Will It Mean for Children?
- 3 Advocacy for Children's Rights
- 4 Children's Rights and Capacities
- 5 Children's Legal Representation in Civil Litigation
- PART II CHILDREN AND FAMILY CHANGE
- PART III JUVENILE AGGRESSION AND JUVENILE JUSTICE
- PART IV CHILDREN AS VICTIMS AND WITNESSES
- PART V CONCLUSIONS AND FUTURE DIRECTIONS
- Author Index
- Case Index
- Subject Index
- References
Summary
Children's legal representation has developed in a largely ad hoc manner among the states, with little concern for traditional ethical principles of zealous advocacy, children's constitutional rights, or attorneys' malpractice liability (Haralambie, 1993). It has not even been clear whether children have any right to be represented in civil litigation by counsel, either appointed or privately retained. Although the U.S. Supreme Court articulated a constitutional right to independdent representation for children in certain delinquency cases (Arizona v. Gault, 1967), no similar constitutional right has been declared for children involved in the child welfare system or family courts. (For a discussion of the history, current status, and future of the children's legal rights advocacy movement, see Small & Limber, this volume.)
Children most often have independent representation in child welfare proceedings filed by child protective services agencies to free children temporarily or permanently from their parents' care because of abuse, neglect, or abandonment. Much less frequently, children have independent representation in custody cases between the child's parents or between a parent and a private third party such as a grandparent. Children are more likely to have independent representation in custody cases when issues of abuse or neglect are raised by one of the private parties. The rationale for appointing independent representation for children is (a) to provide an independent person to advocate for their best interests and (b) to give children a voice for their expressed position in cases that so directly impact their lives.
- Type
- Chapter
- Information
- Children, Social Science, and the Law , pp. 106 - 128Publisher: Cambridge University PressPrint publication year: 2002
References
American Academy of Matrimonial Lawyers. (1995). Representing children: standards for attorneys and guardians ad litem in custody or visitation proceedings. Chicago: Author
American Bar Association. (1969). Model code of professional responsibility. Chicago: Author
American Bar Association. (1983). Model rules of professional conduct. Chicago: Author
American Bar Association. (1996). Standards of practice for lawyers who represent children in abuse and neglect cases. Chicago: Author
Arizona v. Gault, 387 U.S. 1 (1967)
Child Abuse Prevention and Treatment Act (CAPTA), P.L. 93–247
CSR, Inc. (1994). Final report on the validation and effectiveness study of legal representation through guardians ad litem. Washington, DC: U.S. Department of Health and Human Services
Duquette, D. (1990). Advocating for the child in protection proceedings: A handbook for lawyers and court appointed special advocates. Lexington, MA: Lexington Books
(1992). Child protection legal process: Comparing the United States and Great Britain. Pittsburgh Law Review, 54, 239–294Google Scholar
Emery, R. E., & Rogers, K. C. (1990). The role of behavior therapists in child custody cases. In M. Hersen & R. M. Eisler (Eds.), Progress in behavior modification (pp. 60–89). Beverly Hills, CA: Sage
(1996). The ethics of empowerment: Rethinking the role of lawyers in interviewing and counseling the child client. Fordham Law Review, 64, 1655–1697Google Scholar
(1977). Distributive and procedural justice: Combined impact of “voice” and improvement on experienced inequity. Journal of Personality and Social Psychology, 35, 108–119CrossRefGoogle Scholar
Goldstein, J., Solnit, A. J., Goldstein, S., & Freud, A. (1996). The best interests of the child: The least detrimental alternative. New York: Free Press
Goodman, G. S., Emery, R. E., & Haugaard, J. J. (1998). Developmental psychology and law: Divorce, child maltreatment, foster care, and adoption. In I. Siegel & A. Renninger (Eds.), Child psychology in practice (pp. 775–876), in W. Damon (Series Ed.), Handbook of child psychology (Vol. 4). New York: Wiley
, , , & (1991). Craig vs. Maryland. Amicus brief to the U.S. Supreme Court on behalf of the American Psychological Association. Law and Human Behavior, 15, 13–30CrossRefGoogle Scholar
, & (1996). Forward: Children and the ethical practice of law. Fordham Law Review, 64, 1281–1298Google Scholar
(1996). A paradigm for determining the role of counsel for children. Fordham Law Review, 64, 1399–1433Google Scholar
Haralambie, A. M. (1993). The child's attorney: A guide to representing children in custody, adoption, and protection cases. Chicago: American Bar Association
(1997). Current trends in legal representation. Child Maltreatment, 2, 193–201CrossRefGoogle Scholar
, & (1995). Practical and theoretical problems with the AAML Standards for representing “impaired” children. Journal of the American Academy of Matrimonial Lawyers, 13, 57–94Google Scholar
(1998). Clinical education and the “best interest” representation of children in custody disputes: Challenges and opportunities in lawyering and pedagogy. Indiana Law Journal, 73, 605–633Google Scholar
Jacobs, T. A. (1995). Children and the law: Rights and obligations. St. Paul, MN: West Group
Jones, L. R., & Snow, J. E. (1997). Two voices, one vision: The ethical imperative for mental health professional-attorney representation of children. Unpublished manuscript
, , , & (1993). Individual and corporate dispute resolution: Using procedural fairness as a decision heuristic. Administrative Science Quarterly, 38, 224–251CrossRefGoogle Scholar
Lind, E. A., & Tyler, T. R. (1988). The social psychology of procedural justice. New York: Plenum
(1996). The lawyer as caregiver: Child client's competence in context. Fordham Law Review, 64, 1473–1504Google Scholar
Maryland v. Craig, 497 U.S. 836 (1990)
Mnookin, R. (1985). In the interest of children: Advocacy, law reform, and public policy. New York: W. H. Freeman
National Association of Counsel for Children. (2001). Recommendations on the representation of children in abuse and neglect cases. Advocacy for children and families: Moving from sympathy to empathy (pp. 95–112). Denver, CO: Author
National Center on Child Abuse and Neglect. (1980). Representation for the abused and neglected child: The guardian ad litem and legal counsel. Washington, DC: U.S. Department of Health and Human Services
National Council of Juvenile and Family Court Judges. (1998). Principles for appointment of representatives for children in custody and visitation proceedings
(1997a). The lawyer in the interdisciplinary meeting. Child Maltreatment, 2, 226–244CrossRefGoogle Scholar
Peters, J. K. (1997b). Representing children in child protective proceedings: Context, ethics and practice. Charlottesville, VA: Michie Company
Proceedings of the conference on ethical issues in the legal representation of children: Recommendations of the conference. (1996). Fordham Law Review, 64, 1301–1323
Sorenson, E., Bottoms, B. L., & Perona, A. (1997). Intake and forensic interviewing in the children's advocacy center setting: A handbook. Washington, DC: National Network of Children's Advocacy Centers
(1995). Rights and duties: An overview of the attorney–child client relationship. Loyola University of Chicago Law Review, 26, 259–285Google Scholar
, , & (1997). Advocacy's role in identifying dysfunctions in agencies serving abused and neglected children. Child Maltreatment, 2, 212–225CrossRefGoogle Scholar