Attorneys for Children in Custody Cases
In a contested child custody case or child support case, the judge may appoint a lawyer for the child. The judge may also interview the child personally. A child who is at least 16 years old may ask for a custody change directly.
In determining whether to appoint an attorney for a child, the court will consider the case's specific factors, allegations, and concerns. The judge may appoint a lawyer to serve one of three different roles.
- “Child’s Privilege Attorney” - decides whether a child’s confidential or privileged information should be released in court.
- “Child’s Best Interest Attorney” - advocates for the child’s best interests.
- “Child’s Advocate Attorney” - advocates for the child’s wishes.
The Maryland Rules provide guidelines for court-appointed attorneys representing children in child custody, support, and access (visitation) cases.
NOTE: The court can also order an attorney appointed as a best interest attorney or a child advocate attorney to take on the responsibilities of a child privilege attorney. The court can also order a child privilege attorney to change their role to that of a best interest attorney or a child advocate.
Read the law: Md. Code, Family Law § 1-202
Read the rule: Md. Rules, Title 9, Chapter 200, Appendix
Family Services: Child Counsel from the Maryland Courts
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Child's Privilege Attorney
The law allows children (and adults) to keep certain communications and information private. The child privilege attorney decides whether it is in the child’s best interest to release protected information in the court case. A child’s parents cannot force the child to give up (or “waive”) this privilege. The privilege often relates to information from a child’s psychiatrist, psychologist, therapist, or social worker. The court must appoint a child privilege attorney when a minor is not mature enough to exercise their own privilege.
The child privilege attorney can also waive the privilege for other confidential communications, such as those with a religious entity or with a drug and alcohol counselor. A child privilege attorney must assert a child’s privilege and ensure that information is kept confidential if the attorney decides that doing so is in the child’s best interest.
Read the rule: Md. Rules, Title 9, Chapter 200, Appendix
Read the case: Nagle v. Hooks, 296 Md. 123 (Court of Appeals 1983)
Child's Best Interest Attorney
A best interest attorney independently decides what custody arrangement the attorney believes is best for the child. The attorney must tell the court what the child wants but is not required to ask the court to do what the child wants. A best interest attorney is allowed to share confidential information with the court (even though usually attorneys must keep their attorney-client communications confidential). The court decides in each case whether to appoint a best interest attorney.
The Maryland Rules list reasons that may convince a judge to appoint a best interest attorney. These reasons include a high level of conflict and inappropriate adult influence and manipulation. A best interest attorney may not testify or be cross-examined in court.
Read the Rule: Md. Rule 9-205.1 , Title 9, Chapter 200, Appendix
Child's Advocate Attorney
A child advocate serves as an independent lawyer for the child. A child advocate must treat a child client the same way they treat an adult client. The attorney must follow the client’s instructions, whether or not the attorney believes the course of action is in the client’s best interest. The attorney must keep attorney-client communications confidential. A child advocate is generally only appropriate where the child is mature and thinks their own interests are different from those of the parents.
Read the rule: Md. Rules, Title 9, Chapter 200, Appendix
Alternatives to a Child Advocate - When there is no attorney to advocate on a child’s behalf, the judge may choose to interview the child in the judge’s chambers to hear the child’s wishes or views. The judge usually only interviews the child once, at the time of the merits hearing (the main court date for the case). These interviews are part of the official case. They are not confidential and are generally recorded.
Read the case: Marshall v. Stefanides, 17 Md.App. 364 (Court of Special Appeals 1973)
Must the court appoint an attorney for the child upon request?
No, the court is not required to appoint an attorney for the child every time it is requested. Maryland law allows courts to appoint attorneys in child custody or contested child support cases but does not require that the court do so.
Read the law: Md. Code, Family Law § 1-202
Read the case: Garg v. Garg, 393 Md. 225 (Court of Appeals 2006)
Paying for the appointed lawyer
Parents are usually required to pay for their child’s attorney’s fees, although it is possible that a child advocate may be appointed without cost to the parties. Parties involved in the case may be required to deposit money into an account to pay the attorney’s fees. A judge can also issue a judgment for any unpaid fees.
Read the law: Md. Code, Family Law § 1-202
An interview with the judge in chambers is less expensive than using an appointed attorney. However, official interviews with judges can be stressful and scary for the child because the interviews are conducted in the courthouse and because the judge is a stranger to the child. Unlike a child advocate, the judge will not have a chance to develop a relationship with the child. Also, the judge cannot gather and review as much evidence as a child’s attorney can.
Older children
In rare instances, a child can be their own direct advocate. In Maryland, a child who is at least 16 years old has the right to petition for a change in custody. The child would petition the court for a change in their own name. Generally speaking, the criteria for demonstrating a substantial change in circumstances and best interest standards still apply.
NOTE: There are no reported appellate decisions that interpret the Maryland statute that provides for this right to petition for change of custody by a child who is at least 16 years old.
Read the law: Md. Code, Family Law § 9-103