Amicus or Attorney Ad Litem for Child – What’s The Difference?
By: Jodi McShan
In family law, a party may request or the court can on its own motion appoint an amicus attorney or attorney ad litem on behalf of the child. Some may use these terms interchangeably, but they are not the same thing. The duties of these individuals are spelled out in the Texas Family Code, and they are quite similar in nature.
This appointed attorney is a third party in the case on behalf of the child. This individual can file motions, send discovery, make arguments to the court, and act like a party’s attorney. These attorneys have additional training to serve in the role of amicus or attorney ad litems, and they have obligations which they must meet. The key difference is the attorney’s obligation.
An attorney ad litem owes the duty of undivided loyalty, confidentiality, and competent representation to the child. This means that the child’s will controls in most instances. If the child lacks maturity to form an attorney-client relationship, is incapable of making reasonable judgments and engaging in meaningful communication, or expresses objectives that would be seriously injurious to the child, then the attorney ad litem may instead argue for the best interest of the child. However, should the child not have any of the above incapacities, then the child directs the attorney and how the attorney should argue and what should be requested of the court. The attorney ad litem represents the child’s wishes, unless there is a reason for substituted judgment under Texas Family Code §107.008 (reasons outlined above).
An amicus attorney, on the other hand, assists the court in protecting a child’s best interest. This attorney does not provide legal services to the child. While many of the actions and conversations may be very similar to an attorney ad litem, they are not the same. The amicus attorney has a duty, with the consent of the child, to make the child’s wishes known to the court, but the attorney has no duty to argue for the court to follow the child’s wishes. Amicus means friend of the court, and this attorney is in place to aid the court in investigation and understanding of the complex issues at hand. While an attorney for the court, this attorney must follow the same rules as other attorneys and cannot have ex parte communications with the court or act contrary to the Texas Rules of Professional Conduct.
In Texas, we often see amicus attorneys or attorneys ad litem appointed in highly contentious cases involving children. These attorneys are in place to aid the court in understanding the full circumstances for the children and making the best ruling. When one of these attorneys is on a case, everyone must keep in mind the attorney’s obligations and role as they act very similarly but can come to very different arguments/conclusions at court depending on their role in the case.
Note: attorney ad litems may also be appointed for other individuals in different capacities, but those roles are not discussed in this post.
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