6. Children
One of the most troubling issues in family law is determining a lawyer’s obligations to children. The lawyer must competently represent the interests of the client, but not at the expense of the children. The parents’ fiduciary obligations for the well being of a child provide a basis for the attorney’s consideration of the child’s best interests consistent with traditional advocacy and client loyalty principles. It is accepted doctrine that the attorney for a trustee or other fiduciary has an ethical obligation to the beneficiaries to whom the fiduciary’s obligations run.[70] Statutory and decisional law in most jurisdictions imposes a fiduciary duty on parents to act in their child’s best interests. [71] For this analysis to be of benefit to practitioners, however, a clearer mandate must be adopted as part of the ethical code or its official interpretations.
6.1 An attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children.
Comment
Although the substantive law in most jurisdictions concerning custody, abuse and termination of parental rights is premised upon the "best interests of the child," the ethical codes provide little (or contradictory) guidance for an attorney whose client's expressed wishes, interests or conduct are in direct conflict with the well-being of children. This Goal emphasizes that the welfare of each family member is interrelated.
Matrimonial lawyers should counsel parties to examine their wishes in light of the needs and interests of the children and the relationship to other family members. In so doing, the matrimonial lawyer is not only advising the client to adhere to applicable substantive law, but is also reminding the client that the family relationship continues.
Parents owe a continuing fiduciary duty toward each other,[72] as well as toward their children, to serve their children’s best interests. In many instances, parents should subordinate their own interests to those of their children. Matrimonial lawyers and parents alike should collaboratively seek parenting arrangements that eliminate fractious contact between parents, minimize transition or transportation difficulties and preserve stability for the children.
Children do not benefit from involvement in their parents’ divorce. The attorney should warn the client against leaving papers from the attorney out where children can read them and to avoid talking about the case when children can overhear.
If the parents are in conflict and disagree about custody and other parenting issues, the attorney should consider, with the cooperation of the other parent’s attorney, sending the parties to a neutral mental health professional who is a family therapist. The goal of this referral is to resolve their disputes through counseling with the help of that mental health professional. The referring agreement should include confidentiality for all contacts with the therapist and exclusion of that therapist as a witness in the divorce case.
The attorney should discourage the client and refuse to participate in multiple psychological evaluations of children for the purpose of finding an expert who will testify in their favor. Repeated psychological evaluations of children are contrary to the children’s best interest.[73]
6.2 An attorney should not permit a client to contest child custody, contact or access for either financial leverage or vindictiveness.
Comment
Tactics oriented toward asserting custody rights as leverage toward attaining some other, usually financial, goal are destructive. The matrimonial lawyer should counsel against, and refuse to assist, such conduct. Proper consideration for the welfare of the children requires that they not be used as pawns in the divorce process. Thus, for example, in states where child support is determined partly on the basis of the amount of time a parent spends with the child, the lawyers should negotiate parenting issues based solely on considerations related to the child, then negotiate child support based on financial considerations. If despite the attorney’s advice the client persists, the attorney should seek to withdraw.
6.3 When issues in a representation affect the welfare of a minor child, an attorney should not initiate communication with the child, except in the presence of the child’s lawyer or guardian ad litem, with court permission, or as necessary to verify facts in motions and pleadings.
Comment
Issues affecting a child’s welfare may arise before, during, and after legal proceedings. There is a risk of harm to the child from an attorney’s contacts and attempts to involve the child in the proceedings. Advice to or manipulation of the child by a parent’s lawyer has no place in the lawyer’s efforts on behalf of the parent. Information properly to be obtained from a child regarding the parents and the parents’ disputes should be obtained under circumstances that protect the child’s best interests.[74]
6.4 An attorney should not bring a child to court or call a child as a witness without full discussion with the client and a reasonable belief that it is in the best interests of the child.[75]
Comment
Taking sides against either parent in a legal proceeding imposes a large emotional burden on a child. Some children do not want to express a preference in child custody disputes; they want their parents to resolve the issue without calling them. Other children want their views expressed, and their views may be highly relevant to the outcome of the dispute. All participants in a family law proceeding (including attorneys for all parties, any party’s therapist, child custody evaluator, and the judge) should strive to permit a child’s views and information to be expressed in a manner that least exposes the child to the rigors of the courtroom. The attorney should weigh carefully the risks and benefits to the child of testifying, including consulting with appropriate experts as to the potential for harm.
Where a child’s information is material on an issue other than custody, counsel should explore whether the same information can be introduced from another source, rendering the child’s testimony cumulative and unnecessary.
6.5 An attorney should disclose information relating to a client or former client to the extent the lawyer reasonably believes necessary to prevent substantial physical or sexual abuse of a child.
Comment
Under current RPC 1.6(b)(1), an attorney may reveal information reasonably believed necessary “to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm.”[76] Many states permit the attorney to reveal the intention of the client to commit any crime and the information necessary to prevent it. The rules do not appear to address, however, revelation of conduct that may be severely detrimental to the well being of the child, but is not criminal. Also, while engaged in efforts on the client's behalf, the matrimonial lawyer may become convinced that the client or a person with whom the client has a relationship has abused one of the children. Under traditional analysis in most jurisdictions, the attorney should refuse to assist the client. The attorney may withdraw if the client will not be adversely affected and the court grants any required permission. Disclosure of risk to a child based on past abuse would not be permitted under this analysis, however.
Notwithstanding the importance of the attorney-client privilege, the obligation of the matrimonial lawyer to consider the welfare of children, coupled with the client’s lack of any legitimate interest in preventing his attorney from revealing information to protect the children from likely physical abuse, requires disclosure of a substantial risk of abuse and the information necessary to prevent it. If the client insists on seeking custody or unsupervised visitation, even without the attorney's assistance, the attorney should report specific knowledge of child abuse to the authorities for the protection of the child.[77]
As stated in the Comment to the ABA Ethics 2000 Commission’s proposed revision of RPC 1.6(b)(1):
Although the public interest is usually best served by a strict rule requiring lawyers to preserve the confidentiality of information relating to the representation of their clients, the confidentiality rule is subject to limited exceptions. In becoming privy to information about a client, a lawyer may foresee that the client intends serious harm to another person. However, to the extent a lawyer is required or permitted to disclose a client's purposes, the client will be inhibited from revealing facts which would enable the lawyer to counsel against a wrongful course of action. The public is better protected if full and open communication by the client is encouraged than if it is inhibited. Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Substantial bodily harm includes life-threatening or debilitating injuries and illnesses and the consequences of child sexual abuse. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat.[78]
It may also be appropriate to seek the appointment of a guardian ad litem or attorney for the child or children.[79] The entire thrust of the family law system is intended to make the child's well-being the highest priority. The vindictiveness of a parent, the ineffective legal representation of the spouse, or the failure of the court to perceive on its own the need to protect the child's interests do not justify an attorney’s failure to act. However, even the appointment of a guardian or lawyer for the child is insufficient if the matrimonial lawyer is aware of physical abuse or similarly extreme parental deficiency. Nor would withdrawal (even if permitted) solve the problem if the attorney is convinced that the child will suffer adverse treatment by the client.
6.6 An attorney should not make or assist a client in making an allegation of child abuse unless there is a reasonable basis and evidence to believe it is true.
Comment
An attorney who is made aware of abuse by a party (or someone closely associated with a party) is permitted, if not obligated, to provide that information during divorce or custody proceedings (see 6.5). While reporting the existence of child abuse is crucial, however, a claim that a parent has abused a child is ugly and leads to the most unpleasant and harmful litigation in the field of family law. Such claims draw the child into testing or some other form of examination, which itself may be traumatic. The harm to both the accusing and accused parent will almost always be very great.
Desperate or angry spouses sometimes cannot resist the temptation to use such a strong weapon as an abuse charge. Use of such charges to obtain an unfair advantage in the dispute is inexcusable. If a client insists on making such a claim that the lawyer believes unjustified, the lawyer should withdraw from further representation. The lawyer should use all available information and resources — including evaluation by a doctor, therapist, or other health professional — to be sure there is a reasonable basis and substantial supporting evidence for such a charge. Even when the allegation is believed to be justified, it should be made in a manner least harmful to any children and least likely to inflame the dispute.