|Posted by Sarah I. Malik on February 7, 2018 at 3:45 PM|
In custody cases, especially those that are high conflict, it is not uncommon for courts to appointment a counsel for the child. This can come in two forms in Maryland: a Best Interest Attorney or a Child Privilege Attorney. In some states, the Best Interest Attorney can be called Guardian Ad Litem.
A Child Privilege Attorney (CPA) is tasked with only one job – to determine whether or not to waive the statutory psychiatric privilege the child has with his/her mental health professional (e.g., psychiatrist, therapist, psychologist). In the 1983 Maryland case of Nagle v. Hooks, 296 Md. 123 (1983), the court determined that a child is too young to determine whether to waive this statutory patient/psychiatric privilege and it would be inappropriate for parents in continuing custody “battle” to waive such privilege because of a conflict of interest. The court determined that an attorney should be appointed to make this determination with the child’s best interest in mind.
The court’s order appointing the CPA permits the mental health professional to disclose the communications between him/her and the child patient as well as any related written records. Based on this information and other information the CPA gathers, such as pleadings, school records, interviews with the parents/counsel and perhaps even the child, the CPA determines whether it is in the child’s best interest to waive this privilege for the custody case. The CPA must analyze the cost of the waiver (e.g., affecting the child’s sense of security or the child’s relationship with the mental health provider or the parent) against the benefit of such a waiver (e.g., the benefit of the court and parties knowing this information). Given the context of any specific custody case, if the information available to the mental health provider is critical to the case, then the CPA may choose to waive it. It is a high bar for the privilege to be waived. If the CPA does waive the privilege for a certain child and professional, then that mental health professional may be asked to produce documents or testify.
A Best Interest Attorney (BIA) has a greater scope as an attorney for the child. The responsibilities include the CPA aspect (if there is a psychiatric privilege issue), but more significantly includes determining and advocating for what is in the best interest of the child as far as legal and physical custody (and access/visitation). The BIA’s process includes learning more about his child client’s personality, relationship with parents, interests, concerns, health issues and any other relevant facts. The BIA will build a rapport with the child. The BIA can observe the child with each parent. The BIA can speak with doctors, teachers, guidance counselors and any other third party relevant to the custody matter. The BIA has access to medical and educational records. The BIA can also participate in discovery, call his or her own witnesses to the custody trial, cross-examine the parents’ witnesses and present and opening and closing statement advocating for what is in the best interest of the child. Often, BIAs also try to get the parties to reach an agreement regarding custody after they have a better grasp of the families and any relevant concerns of each parent.
Unless the case is part of the court’s pro bono or low bono program, the court order appointing the child counsel will set out the fees and required payments by each party toward the child counsel’s fees. Both forms of child counsel require the attorneys to have complete child counsel training, practice as an attorney for at least three years and be a member of good standing with the state bar.