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Why Attorneys Should Not Communicate With Unrepresented Children in Custody Disputes

Feature in Maryland Family Law Advocate,
a Publication of the Maryland State Bar Association Family & Juvenile Law Section.
By: A. Michelle Gomola, Esq.

Although there is no law that explicitly prohibits an attorney from communicating with a child in a custody dispute when the child is not represented by counsel, in most situations, it is inappropriate, unnecessary and potentially risky for an attorney to communicate with the child. Parents are the joint natural guardians of their minor child, absent certain enumerated exceptions. Md. Rule 5-203(a). As natural guardians, parents are jointly and severally responsible for their child’s welfare. Md. Rule 5-203(b). Accordingly, in a custody dispute, parents (and third-party custodians, as the case may be) are expected to act in the best interests of their child for their child’s wellbeing and their actions (or inactions) will be scrutinized by the court according to the best interest standard to determine what custody would be in the best interests of the child. Family law attorneys are required to advise their clients to act in what the client believes to be the best interest of their child. As such, family law attorneys in a custody dispute are ethically obligated to take into consideration, at a minimum, the child’s best interests when advising their client. Md. Rule 19-301.3. As Cynthia Batchelder, Esq. advocated at the Maryland State Bar Association’s seminar, “Hot Tips in Family Law 2018,” family law attorneys have an obligation, even if it is just a moral obligation, to consider the best interests of the child in a custody dispute and in consideration of the child’s best interests, an attorney for one parent should not communicate with the child.

I: Likely Not in Child’s Best Interest

Most judges in this state are of the view that, with rare exceptions, a child who is the subject of a custody dispute should not know that there is a custody dispute pending at all. The rationale for this notion is rooted in the best interests of the child standard. The court has an invested interest in protecting the welfare of children in custody disputes or divorce matters. It is well known that children can suffer greatly in divorce proceedings regardless of how diligent the parents, attorneys and courts are in minimizing the impact that a divorce has on children. Similarly, children can also suffer just as greatly in a custody dispute between unmarried parents. The paramount goal of Maryland law as it relates to custody is to protect the physical, emotional and mental wellbeing of the child. If a child’s knowledge of a pending custody case in which they are the subject is not in a child’s best interests, then communicating with an attorney that represents one of their parents (or their third-party custodian) is certainly not in a child’s best interests. Although there may be exceptions to the general rule that an attorney should not communicate with an unrepresented child who is the subject of a custody dispute, even when an exception arises and the attorney has good reason to believe that the child is of sufficient age and intelligence to have considered judgment, an attorney should, like the court does before deciding whether to speak with a child in the course of a custody hearing, analyze whether it is necessary to communicate with the child and whether such communication could potentially negatively affect the child. See Taylor v. Taylor, 306 Md. 290 (1986). However, absent specialized Best Interest Attorney training, most attorneys are not qualified to make such a determination and are certainly not trained or qualified to speak to a child in an age appropriate manner. A court-appointed attorney for a child is required to complete at least six (6) hours of training, which includes the topics of applicable representation guidelines and standards; children’s development, needs and abilities at different stages; and effectively  communicating with children, among many other topics.1 Even so, most mental health professionals advise that substantial additional training should be required before any court-appointed attorney for a child communicates with the child. Absent such specialized training about how to communicate with a child, no attorney should communicate with an unrepresented child in a custody dispute as it would very likely not be in the child’s best interests and could be damaging to the child.

II: Risk of Psychological Damage to Child

Children typically love both of their parents and feel that both of their parents are a part of them, which is why children have a loyalty to both parents. Mental health professionals agree that an attorney who represents one parent in a custody dispute should not communicate with an unrepresented child for the same reasons that the court does not believe that parents should communicate with their child in a way that causes the child to know that there is a custody dispute pending: it stokes feelings of guilt, anxiety and a divided loyalty in the child, directly placing the child in the middle of the custody conflict. If an attorney for one parent communicates with a child it makes the child hyper-aware that there is a major conflict going on between the child’s parents. The potential psychological damage a child could sustain from speaking to one parent’s attorney is not a risk worth taking as it could negatively affect the relationship between the child and each parent. Alternatively, if an attorney believes that the voice of a child should be heard, the most therapeutic way to do so, and arguably the best way in any custody dispute, is through Collaborative Law. A specially trained Child Specialist who is a licensed mental health professional can communicate with the child, assess the needs of the child and report back to the parents and their attorneys so that the parents can make the best custody decisions for their family jointly and outside of court. Although a Child Specialist may not be necessary in every Collaborative case, it is the most valuable benefit, unique to Collaborative Law, when the circumstances suggest that a child’s voice should be heard. As Scott A. Holzman Ph.D. advocates, “in all cases where there is a custody dispute, some form of Alternative Dispute Resolution, such as mediation and/or Collaborative Law, should be considered before entering the litigation process” to truly protect the best interests of the child and avoid involving the child in the custody dispute. 1 Maryland Rules, Appendix 19-D(4): Maryland Guidelines for Practice for Court-Appointed Lawyers Representing Children in Cases involving Child Custody or Child Access.

III: Ethically Problematic

The Maryland Attorneys’ Rules of Professional Conduct provide that an attorney, when dealing with an unrepresented person, “shall not state or imply that the attorney is disinterested.” Maryland Rule 19-304.3. Additionally, if an attorney “knows or reasonably should know that the unrepresented person misunderstands the attorney’s role in the matter, the attorney shall make reasonable efforts to correct the misunderstanding.” Maryland Rule 19-304.3. An attorney takes a substantial risk in communicating with an unrepresented child in a custody dispute as the attorney could easily confuse the child and unintentionally mislead the child. In many cases, a minor child is not competent to testify, F.L. § 9-103 a child who is 16 years old or older and subject to a custody order can petition in her own name for a change of custody, this provision is rarely used and such actions are limited to older teens. Any time an attorney is communicating with an unrepresented individual who is not experienced in dealing with legal matters, there is a risk that the individual might assume that the attorney is a disinterested authority on the law, even when the attorney represents a client. See Comment to Md. Rule 19-304.3. A minor child may not be capable of understanding that an attorney for one of their parents in a custody dispute is not a disinterested authority on the law. Worse, a minor child may misinterpret that because the attorney represents one of their parents, the attorney may advocate for the child’s interests. The comments to Maryland Rule 19-304.3 further provide that in order to avoid any misunderstanding in communicating with an unrepresented individual, an attorney should identify the attorney’s client and explain that the client may have interests opposed to those of the unrepresented person. However, a minor child in a custody dispute may not be capable of understanding the attorney’s explained role, interests and relationship to the child and the child’s parents. As such, all family law attorneys should be very cautious in communicating with any unrepresented person, let alone a minor child. All such communications should likely only be held on the record for both the attorney’s benefit and the minor child’s benefit because any communication between an attorney and a child disrupts the child’s life, at best, and could open the door to professional liability for the attorney as well. Worse, if an attorney chooses to communicate with a minor child, presumably with their client’s consent, evidence of that communication with the child could be used by the opposing party to question that parent’s good judgment in allowing their attorney to communicate with the minor child. Such evidence, if admitted, could potentially negatively impact that client’s chances of custody if the court determines that the communication in some way had an adverse impact on the welfare of a child and the child’s stability. Taylor v. Taylor, 306 Md. 290 (1986). If so, the attorney could be at risk for professional liability if the client was not properly advised. Furthermore, any information an attorney may seek to obtain from a child is likely not worth the risk and may not be admissible. Absent extenuating circumstances, an attorney should not communicate with an unrepresented minor child in a custody dispute. If there are specific questions that an attorney believes need to be asked of a child and the case is not a Collaborative case, the attorney should first consider requesting a custody evaluation or the appointment of a court-appointed attorney for the child so that a clearly non-adverse party can interview the child.In short, unless such communication would very likely be viewed by both the Court and a qualified mental health professional as absolutely crucial to preserving the child’s best interest, always err against the communication.

DISCLAIMER: The materials available on this blog are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to your particular issue or problem.

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