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Protecting Your Child’s Best Interest in a Custody Case

By May 21, 2020
Protecting Your Child's Best Interest in a Custody Case | Lovelace Law

In a custody dispute, the most important factor is always the child’s best interest. However, when emotions are running high between parents or conservators of the child, that can be hard to agree on. When trying to resolve a complex and emotional case, parties and their attorneys can lose sight of what really is in the child’s best interest.

How does the court make sure the child’s interest is protected?

The Texas Family Code creates several roles that are specifically intended to assist the court in protecting the child’s best interest. These include amicus attorneys, attorney ad litems, and guardian ad litems. Each of these roles can be filled by a person appointed by the court; however, in private cases, the court can only appoint one to represent the child or the child’s interest.

While they all serve the purpose of protecting the child’s interest, each role is distinct from the next. To learn the differences between each and to find out which court-appointed advocate would best suit your case, continue reading below.

What is an amicus attorney?

An amicus attorney, under Texas law, is an attorney appointed by the court in a suit, other than a suit filed by the state, whose role is to provide legal services necessary to assist the court in protecting a child’s best interests. The amicus attorney does not represent the child or provide legal services to the child. Instead, an amicus attorney is appointed by the court to advocate for the best interests of the child. Rather than acting as the child’s attorney, the amicus will investigate the case and provide information to the court to help the judge decide the best resolution to a custody dispute.

It is the role of the amicus to conduct this investigation, meet with all of the parties in the case, interview the child, and use that information to provide an unbiased opinion to the court about what is best for the child involved in the case.

When is an amicus attorney appointed?

If custody is contested in your case, you may request that the court appoint an amicus. In a private case—one where the government is not involved—an amicus may be appointed any time that the child’s best interest is at issue. If an amicus attorney is appointed by the court, the court may not appoint an attorney ad litem or a guardian ad litem for the child. An amicus is not necessary for a case in which the parties are agreeable or can cooperate well. Instead, the appointment of an amicus is a tool for the court to use when there is a dispute about custody that the parties are not able to resolve on their own or by negotiating through their attorneys to reach an agreement. It is most appropriate to appoint an amicus when the parties have vastly different ideas of the kind of custody arrangement that would be best for the child. While each party may have an attorney that is fighting for that party’s wishes, the amicus is impartial and is able to hear from both parties and the child to determine and recommend to the court the arrangement that would be best for the child.

What is a guardian ad litem?

Like an amicus attorney, a guardian ad litem is appointed to guard the child’s best interest. Unlike an amicus, the guardian ad litem does not represent the child’s best interest to the court. This means the guardian ad litem does not provide legal advice or participate in the litigation. Rather, the guardian ad litem serves as a witness to the child’s daily life and needs, as well as the impact that the litigation is having on a child. Being a lawyer is not a requirement to be appointed as a guardian ad litem. In fact, most commonly the court will appoint non-lawyer volunteers from the Court Appointed Special Advocates (CASA) program as guardian ad litems in cases where the government has removed a child from her parents. These advocates are able to work with the child and all the parties to watch out for the child’s needs during the litigation and report to the court and all the parties how the case is affecting the child.

When is a guardian ad litem appointed?

Most frequently, the court will appoint a guardian ad litem in child abuse and neglect cases brought by the government, although they can be appointed in private cases. It is rare for a guardian ad litem to be appointed to a child in a case between two parents when the government is not involved, because in that situation, a guardian ad litem is not as useful to the litigation as an amicus attorney would be. However, in cases where one or both parents do not have an easy way to get insight into the child’s daily life, a guardian ad litem may be able to observe the child, her home environment, and her interactions with the parties. By doing this, a guardian ad litem may be able to provide useful information to all of the parties that they would not be able to get on their own.

What is an attorney ad litem?

An attorney ad litem is distinct from the two previous roles in one important way: the attorney ad litem is appointed to represent the child’s wishes. An attorney ad litem acts as an attorney for the child—rather than advocating for the child’s best interests, the attorney advocates for the child’s desires. The attorney ad litem has an attorney-client relationship with the child and owes the child the same duty of confidentiality as the attorney would owe to any adult client.

When is an attorney ad litem appointed?

Although attorney ad litems are not appointed as frequently as amicus attorneys, appointment of an attorney ad litem would be appropriate when the child is mature enough to express his or her opinions and engage with the attorney regarding the case or when the parties agree that the child’s desires should play an important part in the litigation. The attorney ad litem is able to provide advice to the child about the child’s situation and help represent the child’s expressed interests to the court, making this appointment a valuable tool to make sure the child’s wishes are heard. In many cases, when parties are arguing over what is best for the child, the child’s desires can easily be put on the back burner. The purpose of appointing an attorney ad litem is to ensure that the child’s desires are not overlooked.

If you are involved in a custody dispute, the appointment of one of these advocates may be helpful in your case. To determine if a court-appointed amicus attorney, guardian ad litem, or attorney ad litem is appropriate or necessary in your case contact an experienced family law attorney today.