“Years of efforts to clarify the role of child advocates reveal an inherently problematic focus: they center on lawyers, not children” (Kothekar). Children’s voices in the courtroom are just as essential as everyone else’s, and we need to work to not dilute them. Child advocacy lawyers primary jobs are to express the wishes for children who are not comfortable speaking in front of the court but the children are often failed. There are many possible reasons these children are not getting the best representation possible. A few of these reasons are that there is no uniform standard throughout the US, overworked lawyers, the amount of time lawyers need to be spending with their clients, and multiple but unenforced models to choose from. “In the United States, there is no uniform standard for the role of the child’s attorney. Instead, there are multiple models of lawyering for children throughout the states” (Breger 1). These non-uniform standards are causing many unfavorable outcomes for the children.
Children are just as involved in these court cases as adults are just depending on the age and confidence in the child is where the lawyers come in. Child advocacy lawyers at their best are there to speak out and for the children.
A child has a right to be heard in the proceeding just as any other litigant, particularly because it is the child’s life which is arguably impacted the most by any resultant decision in the proceeding. And if we listen to children on this very issue, many children would choose not to have a lawyer at all rather than have one who does not express their true voices (Breger 191).
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Advocacy lawyers represent children to tell their story for them, not substitute their story for a new or different one.“ The central concern of the child advocate as presumably, of all those involved in a child protection proceeding is with the child’s best interests” (Duquette 1). Children’s wishes are getting diluted with what the lawyer and the parent think is best, which is straying from the truth and putting children in a situation they do not want to be in. Most children know what they want and express their wishes to their lawyers, while the lawyers are substituting their own opinions for the children. This ultimately causes roadblocks, leading to an unfavorable outcome for all parties involved.
Child advocacy lawyers are not required but are extremely important in helping represent children’s voices in the courtroom. The overall job description that a child advocacy lawyer needs to follow does not have any model guidelines. Instead, child advocacy lawyers have a loose outline that is recommended for them to follow with few suggestions. According to A National Report Card on Legal Representation on Abused and Neglected Children, states are evaluated on their ability to support children with legal representation. States are graded based on an A-F scale with 26 out of 51 states achieving A’s and B’s and 25 out of 51 receiving C’s, D’s and F’s. Half of our nation’s lawyers representing children are either average or failing. This literature review specifically mentions a case in an A+ state where children are often well represented and contrasts it with an F state where lawyers put forth no such efforts. The question at hand is whether or not the grading scale is an accurate representation of our lawyers.
In a New York custody/visitation proceeding during August 2013, Samantha v Anthony are fighting for the primary custody of their daughter Lillian. The two were dating and had split after a physical incident between the father’s teenage son and the stepmother. The mother then moved to find a better job and take care of her daughter Lillian which the father consented to. They then worked things out and had shared visitation times, typically spending a few days with each parent and alternating weekends. The mother put forth a vast amount of effort in order to take care of her daughter the best she could, including living with the father’s ex-wife thus keeping Lillian close to the father, and giving extensive proof of a doctor’s visit. The father was more difficult to deal with and has caused many issues along the way. Although he was more financially stable, he was not the best fit because of his negative actions. The mother was ultimately awarded custody of Lillian because of the factors considered based on the child’s best interests. Although this may seem like a perfectly good case and the correct decision may have been made, Lillian was left without representation.
There were many factors taken into account such as, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, and the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent (IN RE: a custody/visitation proceeding.).
The attorney for Lillian was crucial to maintaining the father’s visitation rights. Even though the father was not the best fit for Lillian her opinion was never asked for. Father-daughter relationships are very important to maintain in a child’s life and she was never asked how involved she wanted her father to be. She is old enough to have a say if she wants to see her dad. These are all very important factors to take into account when assessing what is best for the child, but none of these factors directly included the voice of Lillian, which is a problem. Lillian’s interests and wants are important in deciding what is best for her and her voice needs to be represented.
This is a contrasting case from Idaho which is an F rated state. Jane Doe was left alone when both of her parents suddenly died due to drug addictions. After the passing of her father, she lived with her mother and a family friend. “Evidence at trial showed that they all lived together in Boise and operated as a family unit, i.e., attending school functions, helping with homework, and providing discipline for Jane ” (IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 45805). Jane and the friend living with them were close and established a good relationship. After the passing of both parents, Jane’s aunt and the family friend petitioned for guardianship of jane. The magistrate court immediately appointed Clapp-Younggren to act as a guardian ad litem and attorney for 1 On October 20, 2017. The friend was granted temporary guardianship of Jane until trial, which was set for January of 2018. On November 22, 2017, Friend moved to have an attorney appointed to represent Jane pursuant to Idaho Code section 15-5-207. On November 28, 2017, the judge summarily denied the motion during a telephonic conference. The action to have the same person as a lawyer and a guardian ad litem is illegal and yet the aunt’s motion was still denied.
The guardian ad litem interviewed many people to accrue credibility for the friend and only received letters and pictures for the credibility of the aunt. Janes entire life was based at home with the friend, school, Jane’s friends, her home. This is where Jane was happy and comfortable. “The report noted as well that Jane had “consistently stated to [Clapp Younggren] that Jane would like to stay with [Friend], that she enjoys her friends and is doing well in her current school. [Jane] does not want to move to Montana with [Aunt] (IN THE SUPREME COURT OF THE STATE OF IDAHO Docket No. 45805)”.
Jane knew what she wanted and spoke to the lawyer counting on her to express her wishes in court, which her lawyer did not do. The lawyer was also the guardian ad litem which is a double conflict and neither of those roles had anything to do With the best wishes of Jane Doe. Her wishes were not expressed through her attorney and she was confident enough in making her own choices, she was ultimately let down by her attorney. All the efforts they made jane ended up forcefully moving to Montana with her aunt. Although this is one of the worst possible scenario cases not all hope for our court system is lost, the supreme court of Idaho has caught all the mistakes made and this will be brought back to court. There is hope for jane doe.
Janes lawyer used the best interests model and substituted her own judgment in for jane providing an unfavorable outcome. “Despite the overarching status quo in maintaining best interests advocacy as a preferred option, this state-by-state development has generated considerable inconsistency among the state statutes, and has thereby triggered a desire for reform (Kothekar)”. The common unfavored outcome is what caused this reform. Janes lawyer used the model that is suggested for all lawyers and look what happened. Until there is a consistent reform children are left to 50% of the time be left with an outcome that leaves them worse than things were. Lawyers should be improving and helping the lives of these children not substituting what they think is best. Both of these states regardless of their rating, need improvement. Children’s voices in courtrooms will remain absent until there is a reform for these lawyers.
“To date, almost two hundred countries have signed the CRC, and all but two of those countries have ratified the treaty. Notably, the united states and Somalia are the only two countries that have not ratified the CRC’ (Breger 1). The CRC is the convention on the rights of the child it was Adopted and opened for signature, ratification, and accession by General Assembly resolution 44/25 of 20 November 1989. The United Nations Convention on the Rights of the Child is a human rights treaty which sets out the civil, political, economic, social, health and cultural rights of children. Twenty-five years ago this week, 190 member countries of United Nations passed the Convention on the Rights of the Child, a landmark agreement that stands as one of the most ratified human rights treaties in history.
The CRC, which turns 30 years old on November 20th, follows the 1959 Declaration of the Rights of the Child and is the world’s most comprehensive framework for the protection of children’s rights. It includes the right to protection from discrimination based on their parent’s or legal guardian’s sex, race, religion, and a host of other identifiers. The convention supports protections for children from forced labor, child marriage, deprivation of a legal identity, and grants both able-bodied and disabled children the right to health care, education, and freedom of expression. Only three U.N. countries have not ratified the CRC: Somalia, South Sudan, and…the United States.
The U.S. took its first steps when we signed the treaty but we need to continue to move in a positive direction. The treaty adds positive value to children’s rights but it could still be better and that’s why it needs to be ratified. One main focus is a more overall agreement, uniform standards. For example what a child’s basics need to thrive are, what every family needs to be able to provide for these children. Children having more rights in the courtrooms to speak up for what they want.
Cara Baldari, a director at the nonpartisan children’s-advocacy group First Focus, asserts that when a society doesn’t come to an official consensus as to what is essential for children, children end up going without goods that might be critical to their economic mobility. Those goods can range from clean water to internet access at school. The law professors Clare Huntington and Elizabeth Scott have written in the journal The Future of Children that policies to promote children’s well-being are optional in the United States. As a result, programs that promote children’s well-being often lack funding and get cut when politically convenient.
We need to strive for a uniform standard throughout the united states. We have a good model to follow already we just need to bite the bullet and act before things get worse. New York is already setting us up for success we just need to follow. The state of New York is developing a true advocacy approach to hear the children’s actual wishes. Until we achieve this model standard can the U.S. as a country align itself on the international level being in article 12 of the united nations convention on the rights of the child. Every single child deserves the right to be heard in any case and we need to give them the power to do so. Until we can give these children the voices they deserve in the courtroom their voices will remain absent.
