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Whose Voice is it Anyway? Child advocacy and protection in the United States - Andrea Mooney
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Whose Voice is it Anyway? Child advocacy and protection in the United States - Andrea Mooney


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Professor Andrea Mooney, Clinical Professor, Cornell Law School, University of Cornell. …

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.

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  • 1. Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School
  • 2. Two little boys: Gerald and Jeremy
  • 3. Gerald’s Story
  • 4. In re Gault, 387 U.S.1 (1967)
  • 5. Representation of children in the U.S.
  • 6. Representation of children in the U.S.
    • Parents speaking for children:
    • Yoder v. Wisconsin
    • Tinker v. DesMoines
  • 7. Representation of children 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
  • 8. Guardian 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
  • 9. Representation of children
    • Most states appoint Guardians ad litem (GALs)
    • Five states appoint lawyers for children
    • Some states do a hybrid: lawyers who are acting as GALs
  • 10. Problems with GAL representation
    • 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?
  • 11. 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
  • 12. When do children need representation?
    • State vs. child
    • State vs. parent
    • Parent vs. parent
    • Parent vs. child
  • 13. 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
  • 14. State 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
  • 15. State v. child
    • Child is present in court
    • Court may ask to speak to child
  • 16. State vs. Child
    • Lawyer almost universally functions as a “defense” attorney in J.D. cases
    • Lawyer may also function as GAL in status offenses
  • 17. State vs. Parent
    • Child abuse or neglect
    • Termination of parental rights
  • 18. 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
  • 19. State vs. Parent
    • Child abuse or neglect: Jeremy’s story
    • Ethical obligations of attorneys
  • 20. Parent vs. Parent
    • Custody – representation for the child is most often discretionary
    • Ultimate question for the court is the child’s best interests
  • 21. 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
  • 22. Parent v. child
    • Status offenses: child is incorrigible
    • Nebraska’s safe haven law
  • 23. The child’s voice
    • In GAL cases, may not ever be heard
    • In attorney for the child, may be heard
  • 24. The 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.”
  • 25. Fin