Best Interest Attorneys
Guardian ad Litem’s No More – The New Best Interest Attorney
(Published in Montgomery County Women’s Bar Association Museletter)
In the recent Court of Appeals’ decision in Fox v. Wills, 390 Md. 620, 890 A.2d 726 (2006), the Court held that attorneys for minor children are not entitled to any kind of immunity from malpractice actions. As a result, countless Guardian ad litem attorneys began filing requests to terminate their appointment, leaving Courts without qualified attorneys to fill this important role.
The Court of Appeals’ decision reversed the opinion of the Court of Special Appeals, Fox v. Wills, 151 Md. App. 31, 822 A.2d 1289 (2003), which held that an attorney for minor children does not function “strictly as legal counsel to a child client,” but acts principally as an arm of the Court, and is “performing judicial functions.” Therefore, the attorney had “at least qualified immunity.” Fox v. Wills, 151 Md. App. at 40, 42, 44.
The Court of Appeals noted that, unlike other states, there was no Maryland statute that specifically authorizes the appointment of a “Guardian ad litem,” nor was there a statute that supports the conclusion that an attorney for a minor acts as an arm of the Court. Fox v. Wills, 390 Md. at 633. At the time of the Court’s decision, the Maryland statute under which Guardian ad litem’s were being appointed was Section 1-202 of the Family Law Article:
§1-202. Appointment of attorney for minor; fees
In an action in which custody, visitation rights, or the amount of support for a minor child is contested, the court may:
appoint to represent the minor child counsel who may not represent any party to the action; and
impose against either or both parents counsel fees.
Under this statute, the Court would appoint “Guardian ad litem’s” to represent the child’s best interests or act as the child’s advocate; however, the statute did not define these roles. This statute also did not provide for a duty to the Court or any duty other than to the minor. Thus, “an attorney appointed pursuant to §1-202 of the Family Law Article is not entitled to any type of immunity from a malpractice suit.” Fox v. Wills, 390 Md. at 624.
Following this decision, House Bill 700 was introduced by Delegates Kathleen Dumais and Michael Smigiel. Keith Schiszik, a family law attorney and frequent lecturer in training Guardian ad litem’s, testified on behalf of the American Academy of Matrimonial Lawyers. Soon after the Fox decision was rendered, Mr. Schiszik received numerous calls from attorneys who were receiving threats from their child clients that “if you don’t do what I want you to do, I will sue you.” The children were being informed about the Fox decision by parents attempting to use the child to gain leverage in the custody case.
The initial Bill provided for qualified immunity for attorneys of minor children. However, the House Judiciary Committee would not endorse any kind of immunity for lawyers. The Bill was therefore revised to exclude any immunity and simply enable the appointment of specific attorneys for minor children.
Effective as of June 1, 2006, §1-202 of the Family Law Article was repealed and reenacted as follows:
§1-202. Appointment of attorney for minor; fees
(A) In an action in which custody, visitation rights, or the amount of support of a minor child is contested, the court may:
(I) appoint a lawyer who shall serve as a child advocate attorney to represent the minor child and who may not represent any party to the action; or
(II) appoint a lawyer who shall serve as a best interest attorney to represent the minor child and who may not represent any party to the action; and
impose against either or both parents fees.
(B) A lawyer appointed under this section shall exercise ordinary care and diligence in the representation of a minor child.
Nothing has been changed by the new law with respect to a lawyer’s duties. The added provision in the statute that requires the exercise of “ordinary care and diligence” applies to all lawyers with all clients. The language was included to preclude the argument that any immunity is afforded by the new law.
Under the new law, there are now three (3) types of attorneys for minor children – Best Interest, Nagle v. Hooks and Child Advocate. A Best Interest Attorney is charged with helping the Court determine what is in the child’s best interests. The Nagle v. Hooks attorney is charged with determining whether or not to waive a child’s psychological or psychiatric privilege. A Child Advocate attorney is charged with advocating the desires of the minor child, regardless of what may be in the child’s best interests.
The Court’s sample Order for appointing a Best Interest Attorney appears at the end of this article. FN1. Note that the sample Order states that the “overriding obligation of the Best Interest Attorney shall be to assist the Court in determining the best interest of the child(ren).” If an attorney is required to “assist the Court,” then the attorney has a “duty to the Court.” If an attorney has a duty to the Court, then the attorney may be viewed as “an arm of the Court” – the rationale for qualified immunity by the Court of Special Appeals in Fox, supra.
In addition, the Maryland Rules Committee has established Guideline requirements for attorneys representing minor children – a virtual laundry list of actions an attorney “may” take and educational requirements the attorney should hold. These Guidelines are awaiting review by the Court of Appeals. Once Guidelines are approved, there should be an added layer of protection against unwarranted malpractice suits. That is, if a lawyer has complied with the Guidelines, a malpractice action will be more difficult to maintain.
In sum, there is never going to be unqualified immunity for lawyers who act recklessly in their representation of a minor child. However, for those lawyers who wish to continue their invaluable service of representing minor children without the looming threat of suits from multiple parties for up to three (3) years after the child reaches the age of eighteen (18), there may be some protections afforded in the wording of the Order for appointment and/or the Guidelines being reviewed by the Court of Appeals.
FN1: Sample Best Interest Attorney Order
ORDER
(Best Interest Attorney)
UPON CONSIDERATION of the Plaintiff/Defendant’s Motion for Appointment of Best Interest Attorney and the Defendant/Plaintiff’s Opposition thereto, and good cause having been shown, it is this _____ day of ______________, 20__, by the Circuit Court for Montgomery County, Maryland
ORDERED, that _____________, Esquire, ______________, (301) _________, be and the same is hereby appointed as Best Interest Attorney for ____________, born __________, minor child(ren), to represent the best interests of said child(ren) in the above-captioned case in all matters relating to custody and visitation; such representation shall include consideration of the waiver (or not) of the psychiatric/psychologist privilege for the aforesaid minor child(ren), and may include requests for counseling and psychiatric evaluation; and it is further
ORDERED, that the Best Interest Attorney shall present the child(ren)’s needs and wishes in whatever manner the Court deems appropriate, but the overriding obligation of the Best Interest Attorney shall be to assist the Court in determining the best interest of the child(ren); and it is further
ORDERED, that the Best Interest Attorney shall do the following, if he or she deems appropriate:
Meet with and interview the child(ren), and advise the child(ren) of the scope of the representation.
Investigate the relative abilities of the parties in their roles as parents or custodians.
Visit the child(ren) in each home.
Conduct individual interviews with parents, other parties, and collateral witnesses.
Observe the child(ren)’s interactions with each parent and each other party, individually.
Review educational, medical, dental, psychiatric, psychological, or other records.
Interview school personnel, childcare providers, healthcare providers, and mental health professionals involved with the child(ren) or family.
File and respond to pleadings and motions.
Participate in discovery.
Participate in settlement negotiations.
Participate in the trial, including calling witnesses and presenting evidence and argument, as appropriate.
If the child(ren) is/are to meet with the judge or master to testify, prepare the child(ren), familiarizing the child(ren) with the places, people, procedures, and questioning the child(ren) will be exposed to; and seek to minimize any harm to the child(ren) from the process.
When the representation ends, the lawyer should inform the child(ren) in a developmentally appropriate manner.
HOWEVER, THE BEST INTEREST ATTORNEY SHALL NOT TESTIFY AT TRIAL OR FILE A WRITTEN REPORT WITH THE COURT.
And it is further, ORDERED, that the Plaintiff/Defendant shall advance to his/her attorney the sum of $ ____________ to be placed in the Registry of the Court within thirty (30) days, subject to further Order of Court as to payment of the aforesaid appointed attorney’s fees; and it is further
ORDERED, that this appointment, unless otherwise ordered by the Court, shall terminate after thirty (30) days from entry of a final Custody Order.
____________________________________
JUDGE, Circuit Court for Montgomery
County, Maryland
