Discretionary appointment for child

Tex. Fam. Code § 160.603 states that necessary parties in a proceeding to adjudicate parentage are “the mother of the child” and “a man whose paternity of the child is to be adjudicated.”  Because the child is not a necessary party, and the child’s interests are presumed to be represented by the party bringing the action, appointment of counsel is not required. Dreyer v. Greene, 809 S.W.2d 262, 264 (Tex. Ct. App. 1991).  However, the trial court does have discretion to appoint an attorney ad litem for a child in a parentage matter. L.P.D. v. R.C., 959 S.W.2d 728 (Tex. Ct. App. 1998). 

Specifically, Tex. Fam. Code § 160.612(b) states, “The court shall appoint an amicus attorney or attorney ad litem to represent a child who is a minor or is incapacitated if the child is a party or the court finds that the interests of the child are not adequately represented.”  Because appointment of counsel is not triggered until the court decides to make the child a party or until the court finds that the child’s interests are not adequately represented, the right to counsel is classified as “discretionary.”  In addition, it is considered “qualified”, because the court is not required to appoint client-directed counsel — it is able to appoint either an “amicus attorney” (Texas’s term for a best interest attorney) or an “attorney ad litem” (which is the state’s term for client-directed counsel).

On appeal, the standard of review is abuse of discretion in determining whether counsel was inappropriately denied. See e.g., Baize v. Baize, 93 S.W.3d 197, 202-03 (Tex. Ct. App. 2002).