Whose Voice….

Andrea J. MooneyAndrea J. Mooney

Clinical ProfessorCornell Law School

Two little boys: Gerald and Jeremy

Gerald’s StoryGerald’s Story

In re Gault, 387 U.S.1 In re Gault, 387 U.S.1 (1967)(1967)

RepresentatiRepresentation of on of

children in children in the U.S.the U.S.

Representation of children Representation of children in the U.S.in the U.S.

• Parents speaking for children:Yoder v. WisconsinTinker v. DesMoines

Representation of children Representation of children in the U.S.in the U.S.

• Non-parents speaking for children:– Attorney for the child (“law guardian”)

• Represents child’s position/wishes

– Guardian ad litem• Represents child’s best interests

Guardian ad litemGuardian ad litem

• “ad litem” – for the case• May be a lawyer, social worker• Best interest representation• May/may not consult with child• May/may not inform court that this is

not what child wants

Representation of Representation of childrenchildren

• Most states appoint Guardians ad litem (GALs)

• Five states appoint lawyers for children• Some states do a hybrid: lawyers who

are acting as GALs

Problems with GAL Problems with GAL representationrepresentation

• Lawyer has a duty to “zealously advocate”

• Exception: if client is infant or incompetent

• Little guidance provided as to age or developmental level

• How can you zealously advocate if you are determining what is in the child’s best interest?

Representation of children

• Problems with straight attorney representation:– Can’t do it in every case– Little guidance as to age, developmental level– Lawyer must develop on-going relationship

with child and take developmental concerns into account

– “substituted judgment” too easy

When do children need When do children need representation?representation?

• State vs. child

• State vs. parent

• Parent vs. parent

• Parent vs. child

Children’s representation

• Except in parent v. parent (custody) cases, state must first prove that parent (or child) has done something before it can ask what is in the child’s best interest.

• Custody: only question is child’s best interest

State vs. ChildState vs. Child

• Juvenile delinquency– State is taking a child’s liberty away– Quasi-criminal procedures

• Status offenses– Truancy– Ungovernability– Incorrigibilty– Beyond the lawful control of a parent

State v. child

• Child is present in court

• Court may ask to speak to child

State vs. ChildState vs. Child

• Lawyer almost universally functions as a “defense” attorney in J.D. cases

• Lawyer may also function as GAL in status offenses

State vs. ParentState vs. Parent

• Child abuse or neglect

• Termination of parental rights

State v. parent

• Child almost never in court

• Difficult for attorneys to zealously advocate for a client in some circumstances

• Hearsay exception to evidence rules allow someone else (caseworker, therapist) to testify as to what a child said, or even did

State vs. ParentState vs. Parent

• Child abuse or neglect: Jeremy’s story

• Ethical obligations of attorneys

Parent vs. Parent• Custody – representation for the

child is most often discretionary

• Ultimate question for the court is the child’s best interests

Parent v. Parent

• Court may speak with child in chambers

• May aggravate the “Gumby-syndrome”

• Children need to know what power they have/do not have

Parent v. child

• Status offenses: child is incorrigible

• Nebraska’s safe haven law

The child’s voiceThe child’s voice

• In GAL cases, may not ever be heard

• In attorney for the child, may be heard

The child’s voiceThe child’s voice

• Children only come to court in JD and Status offense cases

• Children rarely testify in court• Children come to court for a

permanency hearing, but are not really “heard.”

Fin