“Can a child hire an attorney in a divorce” is a surprisingly common question. If you imagine a young child interviewing various attorneys in one-on-one meetings, your imagination has led you astray. While a child may be represented in a divorce, he or she will almost certainly not do the hiring. The court may appoint an attorney to serve in three capacities for the minor child: as an attorney, as a guardian ad litem, or as a child representative. I cover the three categories in more detail in this blog post about children’s attorneys.
Let’s start by eliminating guardian ad litems from this discussion. A guardian ad litem is an attorney appointed by the court to conduct an investigation into the best interests of the child and submit a report to the court regarding same. The guardian ad litem’s report is available to all parties and he or she may be called to testify about that report. The guardian ad litem is not an advocate in the truest sense, rather he or she is more of an investigator, acting as the eyes and ears of the court.
What we’re left with are child representative and attorneys for the child. Let’s start by talking about the similarities. Both represent a child’s interest at hearing. Both are advocates, in that they are not dependent on another attorney calling them to testify. Indeed, both can issue discovery and otherwise participate in the litigation as though they were an attorney for either of the divorcing parents. Neither a child representative nor a child’s attorney may be called as a witness and neither has an obligation to produce a report to the court. Last, both are paid for by the child’s parents.
What’s the difference between a child representative and an attorney for the child? Their obligations to their client and to the litigation. A child’s attorney must follow his or her client’s wishes. That means that the attorney will follow the instructions of the child regardless of his or her personal opinion. The attorney has no obligation to settle the case or take any other action, unless instructed by the child. A child representative advocates for the child’s best interests, with input from the child but without the child having ultimate authority. Further, the child representative has an obligation to reduce the conflict of the case by encouraging settlement, alternative dispute resolution (typically mediation), and by disclosing his or her position during the pretrial stage of the case. Further, the child representative must have training in child advocacy.
So, in short, the answer to the question “can a child hire an attorney in a divorce” is a resounding “no.” Nonetheless, a child may be represented in a divorce by his or her own attorney, so long as that attorney is appointed by the court.