Appendix - Maryland Guidelines for Practice for Court-Appointed Lawyers Representing Children in Cases Involving Child Custody or Child Access, Md. Fam. Law. Actions. 9 app Maryland Guidelines for Practice for Court-Appointed Lawyers Representing Childre (2023)

MARYLAND GUIDELINES FOR PRACTICE FOR COURT-APPOINTED LAWYERS REPRESENTING CHILDREN IN CASES INVOLVING CHILD CUSTODY OR CHILD ACCESS

INTRODUCTION AND SCOPE

These Guidelines are intended to promote good practice and consistency in the appointment and performance of lawyers for children in cases involving child custody and child access decisions. However, the failure to follow a Guideline does not itself give rise to a cause of action against a lawyer nor does it create any presumption that a legal duty has been breached. These Guidelines apply to divorce, custody, visitation, domestic violence, and other civil cases where the court may be called upon to decide issues relating to child custody or access. Nothing contained in the Guidelines is intended to modify, amend, or alter the fiduciary duty that an attorney owes to a client pursuant to the Maryland Lawyers' Rules of Professional Conduct.

These Guidelines do not apply to Child In Need of Assistance ("CINA"), Termination of Parental Rights ("TPR"), or adoption cases. The appointment and performance of attorneys appointed to represent children in those cases is addressed by theGuidelines of Advocacy for Attorneys Representing Children in CINA and Related TPR and Adoption Proceedings.

1. DEFINITIONS

A court that appoints counsel for a minor child in a case involving child custody or child access issues should clearly indicate in the appointment order, and in all communications with the attorney, the parties, and other counsel, the role expected of child's counsel. The terminology and roles used should be in accordance with the definitions in Guidelines 1.1-1.3.

1.1. CHILD'S BEST INTEREST ATTORNEY

"Child's Best Interest Attorney" means a lawyer appointed by a court for the purpose of protecting a child's best interests, without being bound by the child's directives or objectives. This term replaces the term "guardian ad litem." The Child's Best Interest Attorney makes an independent assessment of what is in the child's best interest and advocates for that before the court, even if it requires the disclosure of confidential information. The best interest attorney should ensure that the child's position is made a part of the record whether or not different from the position that the attorney advocates.

1.2. CHILD'S ADVOCATE ATTORNEY

"Child's Privilege Attorney" means a lawyer appointed by a court in a case involving child custody or child access to decide whether to assert or waive, on behalf of a minor child, any privilege that the child if an adult would be entitled to assert or waive. This term replaces the term "Nagle v. Hooks Attorney." (Nagle v. Hooks, 296 Md. 123 (1983).) The court may combine the roles of Child's Privilege Attorney with either of the other two roles.

2. RESPONSIBILITIES

2.1. DETERMINING CONSIDERED JUDGMENT

The attorney should determine whether the child has considered judgment. To determine whether the child has considered judgment, the attorney should focus on the child's decision-making process, rather than the child's decision. The attorney should determine whether the child can understand the risks and benefits of the child's legal position and whether the child can reasonably communicate the child's wishes. The attorney should consider the following factors when determining whether the child has considered judgment:

(1) the child's developmental stage:

(a) cognitive ability,

(b) socialization, and

(c) emotional and mental development;

(2) the child's expression of a relevant position:

(a) ability to communicate with the attorney, and

(b) ability to articulate reasons for the legal position; and

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(3) relevant and available reports, such as reports from social workers, psychiatrists, psychologists, and schools.

A child may be capable of considered judgment even though the child has a significant cognitive or emotional disability.

In determining considered judgment, the attorney may seek guidance from professionals, family members, school officials, and other concerned persons. The attorney also should determine whether any evaluations are needed and request them when appropriate.

An attorney should be sensitive to cultural, racial, ethnic, or economic differences between the attorney and the child

2.2. CHILD'S BEST INTEREST ATTORNEY

A Child's Best Interest Attorney advances a position that the attorney believes is in the child's best interest. Even if the attorney advocates a position different from the child's wishes, the attorney should ensure that the child's position is made a part of the record. A Child's Best Interest Attorney may perform the following duties in exercising the attorney's obligation to the client and the court, as appropriate:

(a) Meet with and interview the child, and advise the child of the scope of the representation.

(b) Investigate the relative abilities of the parties in their roles as parents or custodians.

(c) Visit the child in each home.

(d) Conduct individual interviews with parents, other parties, and collateral witnesses.

(e) Observe the child's interactions with each parent and each other party, individually.

(f) Review educational, medical, dental, psychiatric, psychological, or other records.

(g) Interview school personnel, childcare providers, healthcare providers, and mental health professionals involved with the child or family.

(h) File and respond to pleadings and motions.

(i) Participate in discovery.

(j) Participate in settlement negotiations.

(k) Participate in the trial, including calling witnesses and presenting evidence and argument, as appropriate.

(l) If the child is to meet with the judge or testify, prepare the child, familiarizing the child with the places, people, procedures, and questioning that the child will be exposed to, and seek to minimize any harm to the child from the process.

(m) Inform the child in a developmentally appropriate manner when the representation is ending.

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A Child's Best Interest Attorney shall not testify at trial or file a report with the court

2.3. CHILD'S ADVOCATE ATTORNEY

If a Child's Advocate Attorney determines that the child has considered judgment, the attorney advances the child's wishes and desires in the pending matter. If a Child's Advocate Attorney determines that the child does not have considered judgment, the Child's Advocate Attorney should petition the court to (1) alter the attorney's role to permit the attorney to serve as a Child's Best Interest Attorney or (2) appoint a separate Child's Best Interest Attorney. A Child's Advocate Attorney may perform the following duties in exercising the attorney's obligation to the child and the court, as appropriate:

(a) Meet with and interview the child, and advise the child of the scope of the representation.

(b) Investigate the relative abilities of the parties in their role as parents or custodians.

(c) Visit the child in each home.

(d) Conduct individual interviews with parents, other parties, and collateral witnesses.

(e) Observe the child's interactions with each parent and each other party, individually.

(f) Review educational, medical, dental, psychiatric, psychological, or other records.

(g) Interview school personnel, childcare providers, healthcare providers, and mental health professionals involved with the child or family.

(h) File and respond to pleadings and motions.

(i) Participate in discovery.

(j) Participate in settlement negotiations.

(k) Participate in the trial, including calling witnesses and presenting evidence and argument, as appropriate.

(l) If the child is to meet with the judge or testify, prepare the child, familiarizing the child with the places, people, procedures, and questioning that the child will be exposed to, and seek to minimize any harm to the child from the process.

(m) Inform the child in a developmentally appropriate manner when the representation ends.

A Child's Advocate Attorney shall not testify at trial or file a report with the court.

2.4. CHILD'S PRIVILEGE ATTORNEY

A Child's Privilege Attorney notifies the court and the parties of the attorney's decision to waive or assert the child's privilege by

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(1) filing a document with the court prior to the hearing or trial at which the privilege is to be asserted or waived or

(2) placing the waiver or assertion of privilege on the record at a pretrial proceeding or the trial. A Child's Privilege Attorney may perform the following duties in exercising the attorney's obligation to the child and the court, as appropriate:

(a) Meet with and interview the child, and advise the child of the scope of the representation.

(b) Interview any witnesses necessary to assist the attorney in determining whether to assert or waive the privilege.

(c) Review educational, medical, dental, psychiatric, psychological, or other records.

3. CONFLICTS OF INTEREST

An attorney who has been appointed to represent two or more children should remain alert to the possibility of a conflict that could require the attorney to decline representation or withdraw from representing all of the children.

If a conflict of interest develops, the attorney should bring the conflict to the attention of the court as soon as possible, in a manner that does not compromise either client's interests

4. TRAINING AND CONTINUING EDUCATION

Unless waived by the court, an attorney appointed as a Child's Best Interest Attorney, Child's Advocate Attorney, or Child's Privilege Attorney should have completed at least six hours of training that includes the following topics:

(a) applicable representation guidelines and standards;

(b) children's development, needs, and abilities at different stages;

(c) effectively communicating with children;

(d) preparing and presenting a child's viewpoint, including child testimony and alternatives to direct testimony;

(e) recognizing, evaluating, and understanding evidence of child abuse and neglect;

(f) family dynamics and dysfunction, domestic violence, and substance abuse;

(g) recognizing the limitations of attorney expertise and the need for other professional expertise, which may include professionals who can provide information on evaluation, consultation, and testimony on mental health, substance abuse, education, special needs, or other issues; and

(h) available resources for children and families in child custody and child access disputes.

Each court should require attorneys seeking appointments as child counsel to maintain their knowledge of current law and complete a specific amount of additional training over a defined interval.

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5. QUALIFICATIONS

An attorney appointed to serve as a Child's Best Interest Attorney, Child's Advocate Attorney, or Child's Privilege Attorney should, as a minimum:

(a) be a member of the Maryland Bar in good standing, with experience in family law, or have been approved to represent children through a pro bono program approved by the bench; and

(b) unless waived by the court, have successfully completed the six hours of training specified in Guideline 4.

In addition, courts should seek to appoint attorneys who:

(a) are willing to take at least one pro bono appointment as child counsel per year, and

(b) have at least three years of family law experience or other relevant experience. In evaluating relevant experience, the court may consider the attorney's experience in social work, education, child development, mental health, healthcare, or other

6. COMPENSATION

Each court should develop a compensation structure for the three roles of child counsel: Child's Best Interest Attorneys, Child's Advocate Attorneys, and Child's Privilege Attorneys.

6.2. COMPENSATION MECHANISM

Each court should take steps to ensure that child counsel are compensated adequately and in a timely fashion, unless the attorney has been asked to serve pro bono publico. Courts may use the following mechanisms to ensure attorney compensation:

(a) Require one or more of the parties to deposit a significant retainer amount or a fixed fee determined by the court into an attorney escrow account or the court's registry.

(b) If a party qualifies for a fee waiver, compensate child counsel out of available funds. See Guideline 6.3.

(c) Enter a judgment for any unpaid fees.

6.3. FEE WAIVERS

Each court should prepare its budget to ensure that it has sufficient funds to cover the expense of counsel fees for children when the parties are not able to pay the full fees, or the court should develop a pro bono publico component to its program to provide counsel for children.

Each court should apply the same fee waiver procedure, forms, and standard for the appointment of child counsel that are set forth in the Guidelines for Grant Recipients for all family services funded by the Family Division/Family Services Program Grants. If a fee waiver is granted, the court should apply a cap on compensation that is appropriate to the role for which child counsel is appointed.

Md. Fam. Law. Actions. 9 app Maryland Guidelines for Practice for Court-Appointed Lawyers Representing Children in Cases Involving Child Custody or Child Access

Adopted June 4, 2007, eff. 7/1/2007.

FAQs

What is a child privilege attorney Maryland? ›

“Child's Privilege Attorney” means a lawyer appointed by a court in a case involving child custody or child access to decide whether to assert or waive, on behalf of a minor child, any privilege that the child if an adult would be entitled to assert or waive. This term replaces the term “Nagle v.

What a guardian ad litem Cannot do? ›

A guardian ad litem is an attorney and must follow all of the ethical rules that bind attorneys. For example, they may not communicate directly to a party who is represented by counsel or knowingly offer false evidence.

At what age can a child refuse to see a parent in Maryland? ›

From the age of 16, children generally get to make their own decisions about where they're going to spend their time. This can be regardless of what the court decided previously.

At what age can a child make custody decision in Maryland? ›

In Maryland, a court will take the child's preference into account when they are 16 years old. Once a child reaches the age of 16, they also have the right to petition for the custody arrangement to be altered.

What does a best interest attorney do in Maryland? ›

A best interest attorney independently decides what custody arrangement the attorney believes is best for the child. The attorney must tell the court what the child wants, but is not required to ask the court to do what the child wants.

What is guardian ad litem? ›

When a petition is filed to establish a guardianship, the court appoints a guardian ad Litem (GAL). The GAL represents the client's best interests (not the client him or herself) in the guardianship proceeding. The GAL also acts as a neutral investigator for the court.

What is the concept of the child witness rule? ›

– A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family.

How do you act around a guardian ad litem? ›

The Do's of Handling a Guardian Ad Litem
  1. Follow the guardian ad litem's instructions. One must comply with anything the guardian ad litem asks.
  2. Be polite and civil. Presenting a good persona in court makes for a more positive environment for everyone.
  3. Respect the guardian ad litem's recommendations and perspectives.

What is guardian ad litem CPC? ›

In light of the law laid down in the C.P.C. and thereafter in light of the law interpreted by the Apex Court it can be said that a “guardian ad litem” is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc.

What do judges look for in child custody cases in Maryland? ›

The judge will consider whether someone shows signs of fitness to be a parent/guardian including criminal past, time availability, mental stability, financial fitness, and more. Maryland courts examine a wide range of indicators that someone may be fit or unfit for caregiving.

What do judges look for in child custody cases? ›

Mental and Physical Well-Being of Parents

Parents' mental well-being is of great concern to a judge in a child custody case. Psychological disorders, overwhelming stress, drug or alcohol abuse, and mental health crises can prevent a parent from acting in their child's best interests.

How can a father lose custody in Maryland? ›

While emotional abuse is not as easy to prove as physical abuse, it is a reason a parent can lose child custody.
...
Termination of Parental Rights
  1. Sexual abuse of the child.
  2. Torture of the child.
  3. Chronic and life-threating neglect of a child.
  4. Chronic abuse of the other parent or child.
Jun 3, 2021

Does Maryland favor mothers in custody cases? ›

Maryland law presumes that both natural parents are the natural custodians of their children. The law does not favor either the mother or father.

What makes a parent unfit in Maryland? ›

The legal definition of an unfit parent is when the parent through their conduct fails to provide proper guidance, care, or support. Also, if there is abuse, neglect, or substance abuse issues, that parent will be deemed unfit.

What are the deciding factors in child custody? ›

The child's emotional, physical and educational needs will be considered and how any changes in their circumstances will affect the child. The child's age, gender, characteristics and background will all be a factor in the decision process.

What is a guardian in family court? ›

What is a Children's Guardian? Children's Guardians are qualified in social work and trained and experienced in working with children and families. They are appointed by the court to represent the rights and interests of children in cases that involve social services.

What does it mean to be someone's guardian? ›

Legal guardians have custody of the children and the authority to make decisions concerning the child(ren)'s protection, education, care, discipline, etc. Legal guardianship is assigned by a court, such as the family court, according to state laws.

How do you pronounce ad litem? ›

How to pronounce ad litem - YouTube

Is a child testimony enough to convict someone? ›

A testimony by a child witness can form the sole basis of conviction. However, in such cases, the courts should refrain from imposing extreme punishments such as the death penalty. In Suresh v.

What determines the competency of a child to testify? ›

— The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify ...

What age can a child give evidence in court? ›

There is no clear age at which children can give evidence in family court proceedings. Section 1(3) of the Children Act 1989 sets out a check-list of factors the court is required to take into account when making a decision which affects the welfare of a child.

How do you make a good impression on a guardian ad litem? ›

7 Tips For Working With A Guardian Ad Litem
  1. Pay them. It is very important to make sure GAL fees are paid. ...
  2. Be accessible and helpful. ...
  3. Don't badger or pester them. ...
  4. Be honest. ...
  5. Let them do their jobs. ...
  6. Remember they are the voice for your kids. ...
  7. Don't attack the other side.
Jun 15, 2016

How do I file a complaint against a guardian ad litem in Illinois? ›

You must file a complaint with the Guardian ad Litem Review Board. Your complaint must be filed within six (6) years after the act about which you are complaining. Use the complaint form on Guardian ad Litem Review Board website.

How do I file a complaint against a guardian ad litem in Virginia? ›

You may contact the Virginia State Bar at (804) 775-0500 or visit www.vsb.org for additional information about filing a misconduct inquiry.

What is CPC injunction? ›

1. Introduction. An injunction is a judicial order that prohibits a person from commencing or continuing an action that threatens or infringes on the legal rights of another, or forcing a person to perform a certain conduct, such as making compensation to an injured party.

Who is an indigent person? ›

Therefore, the indigent person, in terms of explanation I to Rule 1 of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay court fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is not prescribed.

What is a caveat in CPC? ›

-- (1)Where an application is expected to be made, or has been made, in a suit or proceeding instituted, or about to be instituted, in a Court , any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

Is Maryland a 50/50 custody State? ›

Shared physical custody does not require a 50/50 split of time. Generally, if parents have shared physical custody, it means that either parent was awarded 35% or more of the overnights. In Maryland, there is no rebuttable presumption in favor of shared custody–whether physical or legal.

Can a bipolar father get custody? ›

Mental illness doesn't disqualify a parent

If it negatively impacts parenting ability or the relationship with the child, the court takes that into account when determining parenting time.

Can I move out of state with my child without father's permission Maryland? ›

Parents in the state of Maryland must provide notice and obtain permission in order to relocate their child's permanent residence in or out of state.

How do you win a custody battle against a narcissist? ›

The process of securing child custody against a narcissist is essentially the same as with anybody else. Both parents must either agree on a custody plan during mediation and take it to court to be approved, or they must fight over the specifics of their arrangement during litigation.

How many factors does the court evaluate when making a custody decision? ›

Therefore, the judge will evaluate each parent's age, health, medical conditions, and disabilities. Judges will also evaluate whether parents have any substance abuse disorders.

How do you win a custody battle? ›

Read on for the top 6 tips to win a child custody battle.
  1. Focus on the Best Interest of Your Child. ...
  2. Hire an Experienced Family Law Attorney. ...
  3. Work Together to Keep Things From Getting Ugly. ...
  4. Address Issues That Could Work Against You. ...
  5. Exercise Caution With Your Social Media Use. ...
  6. Stay Positively Engaged in Your Child's Life.
Mar 24, 2021

Can a custodial parent deny visitation in Maryland? ›

No. Court ordered visitation rights may not be denied to the non-custodial parent, even though the non-custodial parent is not paying child support. A parent who has been denied visitation does not have the right to stop paying court ordered child support.

How can a father lose visitation rights? ›

file an application before the regular court & express the actual position and their behaviour, where child is resisting to meet them and convince the court then automatically court may cancell the visitation rights.

What are grounds for emergency custody in Maryland? ›

What Is Emergency Custody in MD?
  • Allegations or threats of physical or sexual abuse.
  • Child abandonment.
  • Allegations of substance abuse that jeopardized the safety of the child.
Jan 21, 2016

What does a guardian ad litem do in South Carolina? ›

A guardian ad litem conducts an investigation into matters that might not be brought before the court by the attorneys representing the parties. The guardian ad litem is NOT the child's custodial guardian or their attorney. “ad Litem” is Latin for “the suit” or “for the purposes of the legal action only.”

How do I file a complaint against a guardian ad litem in Virginia? ›

You may contact the Virginia State Bar at (804) 775-0500 or visit www.vsb.org for additional information about filing a misconduct inquiry.

What does a guardian ad litem do in Tennessee? ›

In Juvenile Court, a Guardian ad Litem, an attorney, is appointed to represent the best interests of a child or children in cases where the child or children is alleged to be dependent and neglect.

What does a guardian ad litem do in Missouri? ›

The guardian ad litem may examine, cross- examine, subpoena witnesses, and offer testimony. The guardian ad litem when appropriate to represent the best interests of the child shall file petitions, motions, parenting plans, responses, or objections.

Who pays for a guardian ad litem in SC? ›

In South Carolina Department of Social Service (DSS) cases the Guardians are compensated by a state fund, so the parties do not pay out of pocket. However, in private custody and visitation cases, the Guardian ad Litem's fee is paid by the parties to the case.

How much is a guardian ad litem in SC? ›

Typical fee caps range from $3,500.00 to $7,500.00. Many folks mistaken believe that once they pay the initial retainer to the GAL, they no longer have an obligation to remain current with their payment of the GAL's fees throughout the case.

How much does a guardian ad litem make in SC? ›

How much does a Guardian AD Litem make in South Carolina? As of Oct 15, 2022, the average annual pay for a Guardian AD Litem in South Carolina is $38,261 a year. Just in case you need a simple salary calculator, that works out to be approximately $18.40 an hour. This is the equivalent of $735/week or $3,188/month.

How much does a guardian ad litem cost in Virginia? ›

Code §8.01-9). Compensation for the Court appointed attorney or GAL shall be paid pursuant to Va. Code §19.2-163, and is limited to a cap of $120.00 in district courts and to a cap of $158.00 in circuit courts.

How do you write a complaint letter about a lawyer? ›

Formal complaint against [name of lawyer or law firm]

describe what the lawyer had been hired to do for you [for example dealing with the sale or purchase of a house] • say when this was [give the date or dates when the problem occurred]. My complaint is that [list what you think went wrong or wasn't done properly.

How do I complain about a GAL? ›

Guardian ad Litem Complaints
  1. Tell your Guardian ad Litem and they will arrange for someone to support you in making the complaint. ...
  2. Tell your social worker and they will contact the service.
  3. You can email us at gal@barnardos.ie to request to speak to someone.

Do guardian ad litems get paid in NC? ›

§ 7B-603. Payment of court-appointed attorney or guardian ad litem. (a) An attorney or guardian ad litem appointed pursuant to G.S. 7B-601 shall be paid a reasonable fee fixed by the court or by direct engagement for specialized guardian ad litem services through the Administrative Office of the Courts.

Does a guardian ad litem have to be an attorney in Tennessee? ›

(c) The person appointed guardian ad litem shall be a lawyer licensed to practice in the state of Tennessee. If there are insufficient lawyers within the court's jurisdiction for the appointment of a lawyer as guardian ad litem, the court may appoint a nonlawyer.

How do you get temporary guardianship in Tennessee? ›

Appointing Temporary Guardianship

In cases where the custodial parent has a preference as to whom he wishes to assign temporary guardianship, Tennessee law permits that a transfer of guardianship agreement can be signed by both parties. It must notarized by a state-designated notary and filed with the court.

How much does a guardian ad litem cost in Missouri? ›

Guardian Ad Litem Missouri Cost

This cost most often ranges from $1,000 to $3,000. If the parents are required by the court to pay for the Guardian ad Litem, they may need to pay an initial deposit in addition to periodic payments to the Guardian ad Litem Missouri during the case.

Can I appoint a guardian for my child? ›

A legal guardian can only be appointed by someone who has parental responsibility for the child, such as a parent or special guardian, although a court can also rule on parental responsibility.

Can a legal guardian deny visitation in Missouri? ›

A parent of a child cannot be denied visitation without some kind of hearing. When the court considers its custody decision, it will often consider the issue of visitation at the same time. It may also occur at a later time pursuant to another motion or hearing.

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