An overview of the Amicus Attorney Role in a Houston Divorce case
In certain cases, a judge may appoint an amicus attorney to represent the best interests of the child. In suits involving the necessity of an amicus, judges in the Harris County Family Law Courts have requested Mary E. Ramos to serve as the court-appointed amicus attorney. Please read on to find out more about the role of an amicus attorney.
*What is an Amicus Attorney? *
- According to §107.001 of the Texas Family Code, an amicus attorney is an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child.
- Being the eyes and ears for the court, it is the amicus attorney whose voice is heard regarding what is in the best interest of the child. While an amicus attorney should let the court know the desires of the child, the amicus attorney is not required to advocate for those desires if the amicus attorney believes the desires would not be in the best interests of the child. It is important to know that the amicus attorney does not have an attorney-client relationship with the child, as the amicus attorney provides legal services to the court, not the child.
When did the role of the amicus attorney begin?
- On September 1, 2003, the powers and duties of attorneys and non-attorneys appointed in Children's Protective Services (CPS) cases and in private custody disputes were clarified. As it stands, lawyers will no longer be appointed with the title of Guardian Ad Litem, but rather will be either an Attorney Ad Litem or an Amicus Attorney.
- In short, the court will decide whether the function of an appointed lawyer in custody cases is to assist the court to reach a best interest decision, or to represent the child in an attorney-client relationship.
In suits brought by a private individual, where the court appoints an amicus attorney, the court cannot appoint an attorney ad litem.
An amicus attorney must be an attorney trained in child advocacy or an attorney determined by the court to have experience equivalent to that training. Attorney's employed by the Title IV-D agency (such as the attorney general's office) cannot be appointed or act as an amicus attorney.
*How do you know if you need an amicus attorney? *
In private suits that affect the parent-child relationship, an amicus may be appointed, usually at the discretion of the court. If the court feels that it needs assistance in protecting the child ’s best interests, then in those instances, will an amicus attorney be appointed.
Once an amicus attorney is appointed by the court, an attorney ad litem cannot be appointed. On the other hand, if an attorney ad litem is appointed in a private suit that affects the parent-child relationship, an amicus attorney cannot be appointed. Please note that if the suit is filed by a governmental entity, an amicus attorney will not be needed nor appointed, since the court may not appoint a person to serve as an amicus attorney in a suit filed by a governmental entity.
*If an amicus attorney is needed, who pays? *
Under the current provisions of the Family Code, chapter 107, it clearly states that a county may not pay for the services of an amicus attorney in a private suit affecting the parent-child relationship filed on or after September 1, 2003, regardless of the parties’ indigence. Therefore, in private suits affecting the parent-child relationship, the fees of the amicus attorney are normally shared 50/50 between the parties, unless otherwise agreed.
*Duties of an amicus attorney *
The Family Code outlines the powers and duties of an Amicus Attorney. These duties include:
- Interviewing the child in a developmentally appropriate manner, if the child is four years of age or older;
- Interviewing each person who has significant knowledge of the child’s history and condition, including any foster parent of the child;
- Interviewing the parties to the suit;
- Seek to elicit in a developmentally appropriate manner the child’s expressed objectives of representation;
- Consider the impact on the child in formulating the attorney’s presentation of the child ’s expressed objectives of representation to the court;
- Investigate the facts of the case to the extent the attorney considers appropriate;
- Obtain and review copies of relevant records relating to the child such as social records, law enforcement records, school records, medical, mental health or drug or alcohol treatment records;
- Participate in the conduct of the litigation to the same extent as an attorney for a party
- Take any action consistent with the child’s interests that the attorney considers necessary to expedite the proceedings;
- Encourage settlement and the use of alternative forms of dispute resolution; and
- Review and sign, or decline to sign, a proposed or agreed order affecting the child.
*What powers does an amicus attorney possess? *
As an amicus attorney, one would be able to:
- Request clarification from the court if the role of the attorney is ambiguous;
- Request a hearing or trial on the merits;
- Consent or refuse to consent to an interview of the child by another attorney;
- Receive a copy of each pleading or other paper filed with the court;
- Receive notice of each hearing in the suit;
- Participate in any case staffing concerning the child conducted by an authorized agency; and
- Attend all legal proceedings in the suit.
*Advocating the best interests of the child *
In determining the best interests of the child, it is important to know that the amicus attorney is not bound by the child’s expressed objectives of representation. Rather, the amicus attorney shall, in a developmentally appropriate manner:
- With the consent of the child, ensure that the child’s expressed objectives of representation are made known to the court;
- Explain the role of the amicus attorney to the child;
- Inform the child that the amicus attorney may use information that the child provides in providing assistance to the court; and
- Become familiar with the American Bar Association’s standards of practice for attorneys who represent children in custody cases.
*Putting together an amicus binder *
As a helpful tool in assisting the Amicus in one’s case, I have found it beneficial to have the parties put together an amicus binder. If you happen to be the amicus attorney on the case, receiving one of these allows you to really get to know the child(ren). If you are an attorney representing one of the parties, providing the amicus attorney with an amicus binder allows the amicus to see the child(ren) from your client’s perspective. Home visits and interviews may run smoother if the amicus knows a little about the child(ren) when in your client’s care.
An amicus binder can include just about anything that you believe will assist the amicus in having a better feel of the child(ren). Attached in the appendix are some forms that I like to use to assist my clients in putting together an amicus binder.
For a quick snapshot of some of the things I like to include, listed below is an outline of how my binders are set up:
- Detailed questionnaire regarding the parents and the child
- Child’s school records (report cards, awards)
- Parent’s journal
- Parent’s concerns
- Parent’s calendar
- The story of the marriage
- The story of the child (likes/dislikes, favorite food, toys, hobbies, etc.)
- Photographs of the child and family
*Doing your utmost as an amicus attorney *
In addition to the duties outlined above, the depth of which the amicus attorney goes into in order to assist the court in determining the best interests of the child will vary from attorney to attorney. As mentioned above, being the eyes and ears for the court, it is the amicus attorney whose voice is heard regarding what is in the best interest of the child. With that being said, in addition to my scheduled home visits, I also request the cooperation of the parents with respect to providing me a complaint list regarding the other parent, a wish list from each parent, their completed custody questionnaires, and a chronology of events detailing both parent’s parenting skills and relationship with the child in support of that parent’s request (such as the request to be the primary custodial parent).
Here is a snapshot of some of the extra things I like to do when appointed as the amicus:
- Complete a background check for both parties, including any and all persons staying at their residence;
- TDL, criminal history check, and sexual pedophile check for each party’s zip code;
- HCAD search for each of the residences to see if there are any problems with asbestos, or lead-based paint (according to the year built);
- Provide each party with a blank calendar so that each party can record all important events;
- Request completion of my questionnaire which includes witness lists, names of the children’ s schools, medical records, etc.
Provide each party with language dealing with child care options that address:
- phone access;
- e-mail access;
- summer camp;
- right of 1st refusal;
- proposed holidays;
- payment of extra-curricular activities;
- moral injunctions; and
- minimizing exposure to harmful parental conflict
Request the parties’ signature regarding:
- Medical release
- School release
- Attorney release to communicate with clients