What is a Best Interest Attorney, and What are Their Responsibilities?

Almost all parents desire to have what is best for their child. Even parents within intact families can disagree about what is in their child’s best interests. Add into the mix the complexity of a divorce or custody dispute. and the process of identifying what is really best for children during this transitional time often becomes quite complicated. Fortunately, that’s where a best interest attorney comes in.

Family law cases are emotional and stressful for the parents involved in them, and perhaps even more emotional for the children who have no control over the situation, but whose lives it profoundly affects. Decisions about children in legal matters, like child custody disputes, are supposed to be made “in the best interest” of the child. But who helps the court decide what that is, especially when the parents are at odds about the child’s welfare? Enter the court-appointed best interest attorney.

What is a Best Interest Attorney?

A best interest attorney is an attorney appointed by the court for the purpose of protecting and helping determine what is in a child’s best interest. This individual makes an independent assessment of the situation and advocates for that to the court. Note, while the attorney advocates on behalf of the child in a case, the best interest attorney is not the child’s attorney in the same sense that we typically think about attorney-client relationships.

In a typical attorney-client relationship, the client identifies goals, and the attorney advocates for what the client wants. Conversely, a best interest attorney is not obligated to advocate for what the child desires the outcome to be, or, for that matter, what either of the parents wants. Instead, the best interest attorney is charged with investigating what would be best for the child, and advocating for that at trial.

In some jurisdictions, a “guardian ad litem” is the equivalent of a best interest attorney in Maryland.

When is a Best Interest Attorney Appointed?

A best interest attorney is not required in every case involving a child, but may be appointed if either party requests one. The court may also order the appointment of a best interest attorney if it deems necessary. This type of attorney is frequently appointed in the following situations:

• The parents have a high-conflict relationship or dispute;
• There are allegations that the child has been abused or neglected;
• The court has ordered a custody evaluation in the case;
• One or both parties have significant mental health issues;
• There are concerns about the parental fitness of one or both parents;
• One parent has been estranged from the child;
• There is a long history of custody litigation in the case; or
• The child needs to communicate with the court without the risk of influence from a parent.

Regardless of who requests the involvement, the cost of the additional attorney is usually the responsibility of the parties to the litigation and is often shared equally between parents.

What Does a Best Interest Attorney Do in a Family Law Case?

Like any attorney, a best interest attorney must uphold the ethics of the legal profession in advocating for their child client. That includes maintaining the confidentiality of communications with the child, but on this point there are certain exceptions. Interestingly, the attorney must share with the court what outcome the child desires, but is not required to ask the court to do what the child wants.

In order to effectively advocate on behalf of the child, the best interest attorney may use information learned from the child directly or learned during the course of the attorney’s own investigation into the matter. Note that the investigation may include all the same litigation tools as the parents’ own attorneys including issuing discovery, taking depositions, subpoenaing witnesses and records and compelling witnesses to appear at trial.

Other responsibilities include:

• Explaining the nature of the representation in an age-appropriate way to the child, including the fact that the attorney is working to do what is best for the child, even if that is not what the child wants to happen.
• Thoroughly investigating all materials relevant to the case. This includes reviewing records such as court files, school records, social service records, and medical records. Investigation also requires interviewing the child and any other people with relevant information, such as teachers, coaches, clergy, neighbors, case workers, family members, babysitters, medical professionals, counselors, and even other attorneys in the case.
• Considering all information gathered from the investigation, reaching a conclusion as to what would be in the child’s best interest, and advocating for that outcome at hearings in the legal matter.

What Qualifies Someone to Act as a Best Interest Attorney?

A best interest attorney must, of course, be a licensed attorney in good standing within the state of Maryland. Beyond that, most best interest attorneys also practice family law, and are familiar with the specific legal issues in divorce and custody cases. In addition, this type of attorney are required to complete many hours of special training on subjects including child development, interviewing children, custody evaluations, the impact of family dysfunction, and effectively representing child clients.

Should There Be a Best Interest Attorney in My Case?

If your legal matter involves any of the circumstances described above, you may want to consider requesting the appointment of a best interest attorney. Having a best interest attorney involved prevents decisions about the child from becoming a push-pull between the parents’ positions. An ethical, compassionate, knowledgeable professional injects objectivity into the proceedings.

If you have questions about the role of a best interest attorney in Maryland, or whether you should have a best interest attorney involved in your family law case, we invite you to contact Strickler, Platnick & Hatfield to schedule a consultation.