Types of Attorneys for Children in Child Custody Cases

Courts in Maryland are required to place the best interests of the child first and foremost in divorce and custody matters. However, judges may sometimes need assistance in determining what this means from the child’s perspective. There are several different types of attorneys who are used to advocate for a child’s wishes and provide recommendations to the court. Each of these legal professionals has special training and serves a different role in ensuring the child’s best interests are adequately protected. If you are facing a child custody dispute, it’s important to be familiar with the types of attorneys for children and how they may play a part in your case.

Key Takeaways

• There are three main types of attorneys for children in divorce and custody matters in Maryland: a child’s privilege attorney, a child’s best interests attorney, and a child’s advocate attorney.
• A child’s privilege attorney’s role is to determine whether it is in the child’s best interests to waive confidentiality over certain protected communications, such as those with mental health professionals.
• A child’s best interests attorney makes recommendations regarding the type of custody arrangement they believe is best for the child.
• A child’s advocate attorney acts as a traditional lawyer and must zealously advocate for the child’s expressed wishes, even if they disagree with them.

1. Child’s Privilege Attorney

Under Maryland law, children are permitted to keep certain "privileged" conversations with adults private and out of the courtroom. While a child’s parents cannot force a child to waive this privilege, a child privilege attorney can determine whether it is in the child’s best interests to release protected information in a divorce case or child custody proceeding. Typically, the privileged communications at issue relate to those between the child and a mental health professional, such as a social worker, therapist, or psychiatrist. Privilege may also be waived for confidential communications between a religious counselor or drug and alcohol counselor, upon the determination of a child privilege attorney.

2. Child’s Best Interests Attorney

A child’s best interest attorney is an attorney who is appointed by the court to provide representation to the child in a divorce or custody case. They investigate the child’s situation and help to determine what custody arrangement is in the best interests of the child. While they are required to inform the court of the child’s wishes, they do not have to ask the judge to do what the child wants. The child’s best interests attorney is permitted to share confidential information with the court relayed by the child.

In deciding whether a child’s best interests attorney should be appointed, a judge will consider the nature of the potential evidence to be presented and whether there are other available options to gather information. Best interests attorneys for children may be appointed in the following situations:

• One party or both parties request the appointment
• There is a high level of conflict in the case
• There is inappropriate adult influence or manipulation
• Past or current child abuse or neglect is an issue
• The child or a party in the case has past or current mental health problems
• The child has special physical, educational, or mental health needs that require investigation or advocacy
• There is actual or threatened family violence
• Alcohol or substance abuse is an issue
• Termination of parental rights is being considered
• Relocation may reduce the child’s time with a parent, sibling, or both
• There are other factors in the case that the court deems relevant

The best interests attorney may not testify in the case or be cross-examined in court. Parents are typically ordered to pay the fees for the best interests attorney. Costs are usually divided in proportion with each parent’s income.

3. Child’s Advocate Attorney

Not to be confused with best interests attorneys for children, a child’s advocate attorney must treat the child client in the same manner they would treat an adult client. Specifically, they must follow the client’s instructions, regardless of whether they believe the course of action is in the best interests of their client, and zealously advocate on their behalf. A child’s advocate attorney must also keep all conversations and communications with the child confidential. In other words, they act as a traditional attorney for a child client and are their voice in the courtroom.

These types of attorneys for children are usually only appropriate in cases where the child is older or mature enough to articulate their preferences. They may be used in cases involving severe custody disputes or situations that have a high level of parental conflict. Like a best interests attorney, an advocate attorney will investigate the case and review records related to the child. But unlike a best interests attorney, their job is to advocate for what the child wants, even if they do not agree.