Maryland recognizes three types of attorneys who can be appointed to represent children in contested custody, access/visitation/parenting time, and domestic violence cases. All of these roles require that the attorney be appointed by court order to represent the child client.
Child Privilege Attorney
This is the narrowest role. A Child Privilege Attorney (“CPA”) is charged with determining whether the child’s privilege or confidentiality with a mental health professional (such as, psychiatrist, psychologist, social worker/LCSW, licensed professional counselor, or other licensed mental health provider) should remain intact or be waived. If privilege is not waived, a mental health professional will likely be prevented, or at least very limited, from testifying, disclosing his/her file, and sharing information about the therapy. If privilege is waived, then the mental health professional can testify, disclose his/her file, and share such information. Pursuant to Nagle v. Hooks, 296 Md. 123 (1983), parents in a contested custody case lose the right to decide whether or not their child(ren)’s privilege should remain intact or be waived, and so an attorney is appointed to make that decision. In sum, the CPA is a gatekeeper. A CPA may notify the court of his/her waiver position in a written report but does not testify.
Best Interest Attorney
The Best Interest Attorney (“BIA”) role includes the duties of a CPA, in addition to making an independent assessment of what is in the child’s best interest and advocating for that before the court. This may require disclosure of confidential information. The BIA is required to make the child’s position part of the record, even if different from the position the BIA advocates regarding the child’s best interests. A BIA may meet with and interview the child client; investigate the relative abilities of the parents or parties in the litigation; visit the child(ren) in the home(s); interview parents, parties, and witnesses; observe the child with each parent and any parties; review records (educational, medical, dental, psychiatric, psychological); interview the child’s providers (school personnel, childcare providers, healthcare providers, mental health professionals); participate in the litigation (pleadings and motions, discovery) and settlement negotiations; participate in trial (calling witnesses, presenting evidence and argument); and, preparing the child to meet with the judge or testify, if the child is to do so. A BIA does not testify or file a report with the court.
Child Advocate Attorney
The Child Advocate Attorney (“CAA”) may include the duties of a CPA, in addition to acting as an independent attorney for the child client, owing the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client. A CAA is appointed when the child is in need of a voice in court and the child demonstrates “considered judgment”. Considered judgment shows a decision-making process of understanding the risks and benefits of the child client’s legal position and ability to communicate the child client’s wishes. Factors for consideration regarding the presence, or not, of considered judgment include: the child’s developmental stage; cognitive ability; socialization; emotional and mental development; the child’s position; ability to communicate with the attorney; ability to articulate reasons for the legal position; and, relevant available reports from mental health professionals and schools. The CAA may perform the same duties as a BIA, likewise a CAA does not testify or file a report with the court.
Maryland Code, Family Law Article, §1-202 authorizes the court to appoint BIAs and CAAs and to impose and allocate the cost between the parties. A lawyer appointed as a BIA or CAA is required to exercise ordinary care and diligence in the representation of the child client. A CPA, BIA, or CAA may be appointed for multiple siblings; each child need not have his/her own, separate CPA, BIA, or CAA, unless a conflict of interest exists or arises against joint representation. The Maryland Rules of Civil Procedure further set out, in Appendix 19-D, Guidelines for CPAs, BIAs, and CAAs. The Guidelines define and discuss the different roles and their duties, as well as training, education, and qualification requirements, and mechanism for compensation. Each county Circuit Court in Maryland is required to maintain a roster of court-approved child counsel, from whom the court can appoint CPAs, BIAs, and CAAs. Each county court also determines the fee arrangement for such attorneys. For example, in Montgomery County, Maryland, the court rate for court-appointed child counsel is $250 per hour, unless the parties agree otherwise or the case qualifies for pro bono/free or reduced fee representation. Some counties have specific forms for the Order appointing the child’s counsel. Lastly, court-appointed child’s counsel must abide by the Maryland Rules of Professional Conduct, which apply to all Maryland attorneys.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked In, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.
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