In Print: Volume 86: Number 2
By Aditi Kothekar
86 Wash. U. L. Rev. 481 (2008)
When placed within family court jurisdiction, children need lawyers. Dependency cases in the family court-in which parents are accused of abusing or neglecting their children-are fraught with constitutional tensions regarding the state’s and parents’ rights to regulate the well-being of children, along with systemic pressures such as federal statutes and state funding that substantially affect family relationships. Children sit at the heart of these proceedings; indeed they are the very reason for them. Facing abrupt state intervention into their family life and the oft-accompanying physical removal from their homes, these children travel a tumultuous and uncertain road from the time the alleged abuse or neglect occurs until the allegations are resolved. Threatened also with termination of parental rights, they-for better or worse-face the potential permanent loss of their natural family life. The recognition that children are not mere property to be tossed between their parents and the state has prompted states to require representation of children as independent parties. Children possess unique rights and interests-to be free from harm and to access relevant social services, among others-that need separate advocacy, particularly in light of the frequent conflicts between the respective interests of parents and children. Though a relatively common practice, child representation in dependency proceedings remains both inconsistent and disputed across the country. Children’s lawyers in dependency proceedings practice in a highly specialized and unsettled area of the law.
Legislators and experts have not agreed on how best to represent children, despite years of discourse regarding what role children’s lawyers should play. The two most prominent schools of thought-those who support lawyers representing children’s best interests (best interests lawyers), and those who support lawyers treating children as adult clients and advocating the clients’ wishes (client-directed lawyers)-highlight the great philosophical divergence regarding child advocacy. The focus of each camp is remarkably different, despite the shared goal of achieving effective child representation. Best interests models are configured around the lawyer’s decision making, whereas the alternative client-directed models focus on how to advance the child’s decision making.
Years of efforts to clarify the role of child advocates reveal an inherently problematic focus: they center on lawyers, not children. Recent reform efforts have manifested in several model standards, which are in significant conflict with one another. However, the common thread among these standards as well as among state laws is that they are generally designed to clarify the lawyers’ role in an attempt to better represent children. By primarily focusing on how to clear lawyers’ confusion regarding how to represent their clients, rather than focusing on how to increase, or at least optimize, children’s participation in the proceeding, the standards have diminished children’s voices. Such diminishment not only devalues the child as a party, despite the child’s access to separate representation, but it also deprives the court of potentially critical information from the child. This Note refocuses the lens of current reform efforts on the significance of children’s voices, stemming from both theory and practical necessity. It urges that reform efforts keep children, rather than lawyers, first in mind. Regardless of whether such a refocusing results in a client-directed or a best interests model as a resolution, it provides the appropriate analytical framework for reform efforts. However, through these considerations, along with a critique of the informal nature of actual dependency proceedings, this Note proposes that a client-directed attorney emerges as the option best suited to refocus reform efforts to consider children first.