Discretionary appointment of counsel

Generally

In a case with contested issues of child custody, visitation rights, or support, the court has discretion to appoint independent counsel for a child who is the subject of the case. Md. Code Fam. Law § 1-202.  The statute permits appointment of either “a lawyer who shall serve as a child advocate attorney” or “a lawyer who shall serve as a best interest attorney.” Id. at (a)(1).  Attorneys fees may be imposed against one or more parties to the action. Id. at (a)(2). 

One of the Maryland rules provides parameters about what the court should consider in deciding whether to appoint counsel. MD. R. 9-205.1(b).  There are eleven factors for the court to consider including “available resources for payment [of counsel]”, the level of conflict, whether a request for appointment was made by one or both parties, whether there are concerns about inappropriate adult influence or manipulation, past or current child abuse or neglect, special needs, actual or threatened family violence, alcohol or other substance abuse, and whether the court is considering terminating or suspending parenting time or awarding custody or visitation to a non-parent.

A court does not have the authority to appoint child’s counsel when custody, support, or visitation are not contested but issues arise such as replevin, conversion, or return of the child’s property. Van Schaik v. Van Schaik, 603 A.2d 908, 911-12 (Md. Ct. Spec. App. 1992) (construing Md. Code Ann., Fam. Law § 1-202).

Role of attorney

Under Maryland Lawyers’ Rules of Professional Conduct Rule 9-205.1(c)(1)(A), the court order appointing counsel should specify the attorney’s role. There are several potential roles a child’s counsel can play, the purpose of each, their respective roles and obligations are detailed in an appendix to the Maryland Lawyers’ Rules of Professional Conduct. MD. RULE 9-205.1(c)(1)(A); MD. RULE APPX.: Maryland Guidelines for Practice for Court-Appointed Lawyers Representing Children in Cases Involving Child Custody or Child Access.

Depending on the child’s age and whether he or she has “considered judgment,” the attorney will either act as a Child Advocate or a Best Interest Attorney. Id. 2.1. A Best Interest Attorney is appointed to protect a child’s best interests without being bound by the child’s directives or objectives, making an independent assessment of what is best for the child. Id. 1.1. A Child Advocate, on other hand, “should be appointed when the child is need of a voice in court, as in relocation cases, when there are allegations of child abuse, or where the child is sufficiently mature and sees his or her interests as distinct from the interests of the child’s parents.” Id. 1.2. Finally, the court may also appoint counsel to serve as a Child’s Privilege Attorney, whose duty is to decide whether to assert or waive a privilege on behalf of the minor child. Id. 1.3.

Because client-directed counsel is not guaranteed, we have classified the appointment of counsel as “qualified” in addition to discretionary.