When we meet with adult clients who are going through a divorce, one frequent question is, at what age does the child get to decide where they live? Many have heard that it is 12, or 10, or some other age. Actually, in Oregon there is no such age. A child can never make a determination about which parent he or she prefers. But what if you have a child that has a strong opinion and wants to be heard? How do you ensure that your child’s voice is heard by the court? Well, that’s where appointing an attorney for the child themselves might be appropriate.
When determining custody and parenting time, the main consideration for the court is what is in the “best interests” of the child. The default in these cases is for the parents to argue their own positions, while the child is left without an unbiased voice to represent their interests. However, ORS 107.425(6) provides an opportunity for the child to have their own attorney appointed to represent them. Either parent or the child themself may request that the court appoint an attorney for a child. When a child asks the court directly to have counsel appointed, the court does not have discretion and the court must appoint counsel for the child. When an attorney is appointed for a child, the fees for that child’s attorney are often split equally between the parents of the case, regardless of who requested independent representation for the child.
If a child is old enough and mature enough, the child’s attorney will provide independent legal counsel for the child and owes that child the same duties of undivided loyalty, confidentiality, and competent representation as are due to an adult client. If the child is young or unable to articulate their own interests in a mature manner, then the child’s attorney may elect to be a “best interests” attorney. A “best interests attorney” advocates for what the attorney believes is in the child’s best interests based on their own investigation, which may differ from what the child claims to want.
Once an attorney is appointed for a child, the child’s attorney will likely do the following:
• Meetings Directly with a Child: The attorney will meet directly with the child, without either parent present, and discuss the child’s own thoughts, feelings, and wishes about the situation.
• Meetings with a Child’s Parents: The attorney may meet with each parent. It is important that each parent understands a child’s attorney does NOT represent a parent’s interests. Though a child’s attorney may have interests which align more with one parent than the other parent’s, ultimately, a child’s attorney is solely responsible for advocating for the child.
• Meetings with Other Individuals: This may include grandparents, teachers, daycare providers, neighbors, sports coaches, etc. These people are important because they often offer unbiased opinions.
• Review School, Medical, and Mental Health Records:
• Participate in Any Hearings Related to a Child: A child’s attorney has a right to participate in every hearing that may affect a child throughout these domestic relations cases.
Each parent is legally obligated to cooperate with a child’s attorney. That means, neither parent can interfere with attorney’s ability to meet with the child and each parent must reasonably cooperate and permit the attorney to view see a child’s personal records. It may be beneficial for a child to have an attorney appointed in your case. You should consult on what may be the best strategy for your case and how best to navigate this process.