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Stuart
Muntzing Skok
Guardian
ad Litem's No More - The New Best Interest
Attorney(Published in
Montgomery County Women’s Bar Association
Museletter)
by
Stuart Muntzing Skok
In the recent Court of
Appeals’ decision in Fox v. Wills,
390 Md. 620, 890 A.2d 726 (2006), the Court
held that attorneys for minor children are
not entitled to any kind of immunity from
malpractice actions. As a result, countless
Guardian ad litem attorneys began
filing requests to terminate their
appointment, leaving Courts without
qualified attorneys to fill this important
role.
The Court of Appeals’
decision reversed the opinion of the Court
of Special Appeals, Fox v. Wills, 151
Md. App. 31, 822 A.2d 1289 (2003), which
held that an attorney for minor children
does not function “strictly as legal counsel
to a child client,” but acts principally as
an arm of the Court, and is “performing
judicial functions.” Therefore, the attorney
had “at least qualified immunity.” Fox v.
Wills, 151 Md. App. at 40, 42, 44.
The Court of Appeals noted
that, unlike other states, there was no
Maryland statute that specifically
authorizes the appointment of a “Guardian
ad litem,” nor was there a statute that
supports the conclusion that an attorney for
a minor acts as an arm of the Court. Fox
v. Wills, 390 Md. at 633. At the time of
the Court’s decision, the Maryland statute
under which Guardian ad litem’s were
being appointed was Section 1-202 of the
Family Law Article:
§1-202. Appointment of
attorney for minor; fees
In an action in which
custody, visitation rights, or the
amount of support for a minor child is
contested, the court may:
-
appoint to represent
the minor child counsel who may not
represent any party to the action;
and
-
impose against
either or both parents counsel fees.
Under this statute, the
Court would appoint “Guardian ad litem’s”
to represent the child’s best interests or
act as the child’s advocate; however, the
statute did not define these roles. This
statute also did not provide for a duty to
the Court or any duty other than to the
minor. Thus, “an attorney appointed pursuant
to §1-202 of the Family Law Article is not
entitled to any type of immunity from a
malpractice suit.” Fox v. Wills, 390
Md. at 624.
Following this decision,
House Bill 700 was introduced by Delegates
Kathleen Dumais and Michael Smigiel. Keith
Schiszik, a family law attorney and frequent
lecturer in training Guardian ad litem’s,
testified on behalf of the American Academy
of Matrimonial Lawyers. Soon after the Fox
decision was rendered, Mr. Schiszik received
numerous calls from attorneys who were
receiving threats from their child clients
that “if you don’t do what I want you to do,
I will sue you.” The children were being
informed about the Fox decision by
parents attempting to use the child to gain
leverage in the custody case.
The initial Bill provided
for qualified immunity for attorneys
of minor children. However, the House
Judiciary Committee would not endorse any
kind of immunity for lawyers. The Bill was
therefore revised to exclude any immunity
and simply enable the appointment of
specific attorneys for minor children.
Effective as of June 1,
2006, §1-202 of the Family Law Article
was repealed and reenacted as follows:
§1-202. Appointment of
attorney for minor; fees
(A) In an action in
which custody, visitation rights, or the
amount of support of a minor child is
contested, the court may:
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(I) appoint a
lawyer who shall serve as a child
advocate attorney to represent the
minor child and who may not
represent any party to the action;
or
(II) appoint a lawyer who shall
serve as a best interest attorney to
represent the minor child and who
may not represent any party to the
action; and
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impose against
either or both parents fees.
(B) A lawyer
appointed under this section shall
exercise ordinary care and diligence in
the representation of a minor child.
Nothing has been changed by
the new law with respect to a lawyer’s
duties. The added provision in the statute
that requires the exercise of “ordinary care
and diligence” applies to all lawyers with
all clients. The language was included to
preclude the argument that any immunity is
afforded by the new law.
Under the new law, there are
now three (3) types of attorneys for minor
children – Best Interest, Nagle v. Hooks
and Child Advocate. A Best Interest Attorney
is charged with helping the Court determine
what is in the child’s best interests. The
Nagle v. Hooks attorney is charged
with determining whether or not to waive a
child’s psychological or psychiatric
privilege. A Child Advocate attorney is
charged with advocating the desires of the
minor child, regardless of what may be in
the child’s best interests.
The Court’s sample Order for
appointing a Best Interest Attorney appears
at the end of this article. FN1. Note
that the sample Order states that the “overriding
obligation of the Best Interest Attorney
shall be to assist the Court in determining
the best interest of the child(ren).” If
an attorney is required to “assist the
Court,” then the attorney has a “duty to the
Court.” If an attorney has a duty to the
Court, then the attorney may be viewed as
“an arm of the Court” – the rationale for
qualified immunity by the Court of Special
Appeals in Fox, supra.
In addition, the Maryland
Rules Committee has established Guideline
requirements for attorneys representing
minor children – a virtual laundry list of
actions an attorney “may” take and
educational requirements the attorney should
hold. These Guidelines are awaiting review
by the Court of Appeals. Once Guidelines are
approved, there should be an added layer of
protection against unwarranted malpractice
suits. That is, if a lawyer has complied
with the Guidelines, a malpractice action
will be more difficult to maintain.
In sum, there is never going
to be unqualified immunity for lawyers who
act recklessly in their representation of a
minor child. However, for those lawyers who
wish to continue their invaluable service of
representing minor children without the
looming threat of suits from multiple
parties for up to three (3) years after the
child reaches the age of eighteen (18),
there may be some protections afforded in
the wording of the Order for appointment
and/or the Guidelines being reviewed by the
Court of Appeals.
FN1: Sample Best Interest
Attorney Order
ORDER
(Best Interest Attorney)
UPON CONSIDERATION of the
Plaintiff/Defendant’s Motion for Appointment
of Best Interest Attorney and the
Defendant/Plaintiff’s Opposition thereto,
and good cause having been shown, it is this
_____ day of ______________, 20__, by the
Circuit Court for Montgomery County,
Maryland
ORDERED, that _____________,
Esquire, ______________, (301) _________, be
and the same is hereby appointed as Best
Interest Attorney for ____________, born
__________, minor child(ren), to represent
the best interests of said child(ren) in the
above-captioned case in all matters relating
to custody and visitation; such
representation shall include consideration
of the waiver (or not) of the
psychiatric/psychologist privilege for the
aforesaid minor child(ren), and may include
requests for counseling and psychiatric
evaluation; and it is further
ORDERED, that the Best
Interest Attorney shall present the
child(ren)’s needs and wishes in whatever
manner the Court deems appropriate, but the
overriding obligation of the Best Interest
Attorney shall be to assist the Court in
determining the best interest of the
child(ren); and it is further
ORDERED, that the Best
Interest Attorney shall do the following, if
he or she deems appropriate:
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Meet with and
interview the child(ren), and advise
the child(ren) of the scope of the
representation.
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Investigate the
relative abilities of the parties in
their roles as parents or
custodians.
Visit the child(ren) in each home.
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Conduct individual
interviews with parents, other
parties, and collateral witnesses.
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Observe the
child(ren)’s interactions with each
parent and each other party,
individually.
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Review educational,
medical, dental, psychiatric,
psychological, or other records.
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Interview school
personnel, childcare providers,
healthcare providers, and mental
health professionals involved with
the child(ren) or family.
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File and respond to
pleadings and motions.
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Participate in
discovery.
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Participate in
settlement negotiations.
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Participate in the
trial, including calling witnesses
and presenting evidence and
argument, as appropriate.
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If the child(ren)
is/are to meet with the judge or
master to testify, prepare the
child(ren), familiarizing the
child(ren) with the places, people,
procedures, and questioning the
child(ren) will be exposed to; and
seek to minimize any harm to the
child(ren) from the process.
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When the
representation ends, the lawyer
should inform the child(ren) in a
developmentally appropriate manner.
HOWEVER, THE BEST INTEREST
ATTORNEY SHALL NOT TESTIFY AT TRIAL OR FILE
A WRITTEN REPORT WITH THE COURT.
And it is further, ORDERED,
that the Plaintiff/Defendant shall advance
to his/her attorney the sum of $
____________ to be placed in the Registry of
the Court within thirty (30) days, subject
to further Order of Court as to payment of
the aforesaid appointed attorney’s fees; and
it is further
ORDERED, that this
appointment, unless otherwise ordered by the
Court, shall terminate after thirty (30)
days from entry of a final Custody Order.
____________________________________
JUDGE, Circuit Court for Montgomery
County, Maryland
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