The way legislatures and courts view the role of children in the divorce process has changed dramatically in recent years. The substantive standard for decision has remained relatively constant, but the procedure for gathering and presenting the facts relevant to that substantive standard has been modified in a majority of American jurisdictions to provide for independent legal representation of the child by a court-appointed attorney who serves as "counsel" or "guardian ad litem" for the child. The widespread adoption of this procedural innovation has generated considerable professional and scholarly debate over the role of the child's legal representative in divorce litigation. Some have argued that the child advocate in a divorce case must assume a variety of roles; others have argued that none of these roles are appropriate professional roles for lawyers. These various positions reflect two distinct, but related, critiques of the child advocate's role in divorce litigation: (1) an ethical critique and (2) a policy critique. Descriptions of three cases illustrate the variety of roles a child's attorney can assume and the ways in which she can assist a child client. Discussion of and presumptions regarding the cases follow. To conclude, our experience has convinced us that many parents who care deeply for their children are simply unable to keep their children's needs in mind in the midst of divorce. In those cases even a child too young to be a client needs her own lawyer.
Stephen Wizner and Miriam Berkman,
Being a Lawyer for a Child Too Young to Be a Client: A Clinical Study,
68 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol68/iss1/8