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Professor Andrea Mooney, Clinical Professor, Cornell Law School, University of Cornell. Session 1 - Children's Voices, citizenship and inclusion. Getting It Right for Every Child: Childhood, Citizenship and Children's Services, Glasgow, 24-26 September 2008. http://www.iriss.org.uk/conference/girfec
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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