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Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School

Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School. Two little boys: Gerald and Jeremy. Gerald’s Story. In re Gault, 387 U.S.1 (1967). Representation of children in the U.S. Representation of children in the U.S. Parents speaking for children: Yoder v. Wisconsin

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Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School

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  1. Whose Voice….Andrea J. MooneyClinical ProfessorCornell Law School

  2. Two little boys: Gerald and Jeremy

  3. Gerald’s Story

  4. In re Gault, 387 U.S.1 (1967)

  5. Representation of children in the U.S.

  6. Representation of children in the U.S. Parents speaking for children: Yoder v. Wisconsin Tinker v. DesMoines

  7. Representation of children in the U.S. Non-parents speaking for children: Attorney for the child (“law guardian”) Represents child’s position/wishes Guardian ad litem Represents child’s best interests

  8. Guardian ad litem “ad litem” – for the case May be a lawyer, social worker Best interest representation May/may not consult with child May/may not inform court that this is not what child wants

  9. Representation of children Most states appoint Guardians ad litem (GALs) Five states appoint lawyers for children Some states do a hybrid: lawyers who are acting as GALs

  10. Problems with GAL representation Lawyer has a duty to “zealously advocate” Exception: if client is infant or incompetent Little guidance provided as to age or developmental level How can you zealously advocate if you are determining what is in the child’s best interest?

  11. Representation of children • Problems with straight attorney representation: • Can’t do it in every case • Little guidance as to age, developmental level • Lawyer must develop on-going relationship with child and take developmental concerns into account • “substituted judgment” too easy

  12. When do children need representation? State vs. child State vs. parent Parent vs. parent Parent vs. child

  13. Children’s representation Except in parent v. parent (custody) cases, state must first prove that parent (or child) has done something before it can ask what is in the child’s best interest. Custody: only question is child’s best interest

  14. State vs. Child Juvenile delinquency State is taking a child’s liberty away Quasi-criminal procedures Status offenses Truancy Ungovernability Incorrigibilty Beyond the lawful control of a parent

  15. State v. child Child is present in court Court may ask to speak to child

  16. State vs. Child Lawyer almost universally functions as a “defense” attorney in J.D. cases Lawyer may also function as GAL in status offenses

  17. State vs. Parent Child abuse or neglect Termination of parental rights

  18. State v. parent • Child almost never in court • Difficult for attorneys to zealously advocate for a client in some circumstances • Hearsay exception to evidence rules allow someone else (caseworker, therapist) to testify as to what a child said, or even did

  19. State vs. Parent Child abuse or neglect: Jeremy’s story Ethical obligations of attorneys

  20. Parent vs. Parent Custody – representation for the child is most often discretionary Ultimate question for the court is the child’s best interests

  21. Parent v. Parent Court may speak with child in chambers May aggravate the “Gumby-syndrome” Children need to know what power they have/do not have

  22. Parent v. child Status offenses: child is incorrigible Nebraska’s safe haven law

  23. The child’s voice In GAL cases, may not ever be heard In attorney for the child, may be heard

  24. The child’s voice Children only come to court in JD and Status offense cases Children rarely testify in court Children come to court for a permanency hearing, but are not really “heard.”

  25. Fin

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