Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School

Two little boys: Gerald and Jeremy

Gerald’s Story

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

Representation of children in the U.S.

Representation of children in the U.S. Parents speaking for children: Yoder v. Wisconsin Tinker v. DesMoines

Parents speaking for children:

Yoder v. Wisconsin

Tinker v. DesMoines

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

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 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

“ 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 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

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 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?

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

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 representation? State vs. child State vs. parent Parent vs. parent Parent vs. child

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

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. 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

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

Child is present in court

Court may ask to speak to child

State vs. Child Lawyer almost universally functions as a “defense” attorney in J.D. cases Lawyer may also function as GAL in status offenses

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

Lawyer may also function as GAL in status offenses

State vs. Parent Child abuse or neglect Termination of parental rights

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

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. Parent Child abuse or neglect: Jeremy’s story Ethical obligations of attorneys

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

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

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

Status offenses: child is incorrigible

Nebraska’s safe haven law

The child’s voice In GAL cases, may not ever be heard In attorney for the child, may be heard

In GAL cases, may not ever be heard

In attorney for the child, may be heard

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.”

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