Discretionary appointment of counsel

Key_development Question_mark

Legislation, Custody Disputes - Children

Neb. Stat. § 42-358(1) allows judges to appoint counsel for minors:


The court may appoint an attorney to protect the interests of any minor children of the parties. Such attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify on matters pertinent to the welfare of the children. The court shall by order fix the fee . . . for such attorney, which amount shall be . . . paid by the parties as ordered. If the court finds that the party responsible is indigent, the court may order the county to pay the costs.


Additionally, Neb. Stat. § 2616 provides that for termination of a guardianship of a minor, "[i]f, at any time in the proceeding, the court determines that the interests of the ward are, or may be, inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen or more years of age."  In Lisa M. v. Patrick D. (In re Robert D.), 696 N.W.2d 461 (Neb. 2005), the court appointed a lawyer to serve in the guardian ad litem (GAL) role.  The lawyer sought clarification that he was not appointed as an attorney, to which the judge responded that “the guardian ad litem should also perform the duties of counsel for the juvenile and to express and advocate for his desires.”  The Supreme Court of Nebraska first held that the juvenile’s interests were adequately represented by the GAL and there was no abuse of discretion in failing to appoint an attorney.  However, it observed that the trial court had erred in suggesting the lawyer should perform a dual role as GAL and attorney, since “A guardian ad litem may be an attorney, but an attorney who performs the functions of a guardian ad litem does not act as an attorney and is not to participate in the trial in an adversarial fashion such as calling or examining witnesses or filing pleadings and briefs. Id . In contrast, an attorney appointed under § 30-2616(c) is an advocate for the minor child and is not a guardian ad litem.”  But the Supreme Court of Nebraska found no prejudice resulting from this error, since the lawyer had only served in a GAL role.

Appointment of Counsel: discretionary Qualified: no