An Attorney's Duty to the Children of Divorce

WHAT DUTY DO WE OWE TO THE CHILDREN?

By

Charles F. Vuotto, Jr., Esq.


Do attorneys owe a duty to the children of the parties they represent in family matters? When we strategize with a father to obtain the lowest child support figure or to avoid paying arrears, should we consider what is best for the children? When we meet with a mother who wants to limit a father’s contact with their offspring for no reason other than her anger at the break-up, should we consider what is best for the children? When we see a client attempting to use the children as bargaining chips in the divorce, should we consider what is best for the children? Obviously, these are only a few of many examples of situations in which a party’s interests or wishes may diverge from the best interests of the children of the relationship. Are we, as family law attorneys, required by Rule or case law to consider the best interests of the children and mold our advocacy of the parent accordingly?
Simply put, do we have a duty to the children? The authors of this article believe that the answer to this question should be a resounding “yes.” Unfortunately, the law as it exists in New Jersey provides a far less definite answer. Indeed, the problem is twofold: (1) neither the Rules of Professional Conduct (“RPCs”) nor the remaining Rules of Court directly address the issue of an attorney’s duty to a child; and (2) while both the RPCs and the Rules of Court contain their own implications concerning the issue, these implications are inconsistent and unclear.
A plain reading of the RPCs would seem to imply that an attorney representing a parent in matrimonial litigation has no affirmative obligation to a child. The RPCs contain numerous rules addressing an attorney’s duty to the client, with the most frequently cited duty of “reasonable diligence and promptness in representing a client.” RPC 1.3. There is no discussion of a duty owed to the client’s child. Still, the following question is raised: If an attorney owes a duty of “diligence and promptness in representing a client,” does the attorney have an obligation to diligently and promptly represent a client’s interest when those interests are adverse to the best interests of the parties’ child? (i.e., the client, an unfit parent, wants you to diligently and promptly argue for primary custody of his or her child). Such an obligation to the client, at the expense of the child, can certainly be implied from the RPCs .
While the RPCs appear to imply no duty between an attorney and a child, the Rules of Court appear to imply the opposite. This contrary implication is found in Rule 5:8A, titled, “Appointment of Counsel for Child,” which directs:
In all cases where custody or parenting time/visitation is an issue, the court may, on the application of either party or the child or children in a custody or parenting time/visitation dispute, or on its own motion, appoint counsel on behalf of the child or children. Counsel shall be an attorney licensed to practice in the courts of the State of New Jersey and shall serve as the child's lawyer. The appointment of counsel should occur when the trial court concludes that a child's best interest is not being sufficiently protected by the attorneys for the parties. (emphasis added).
The implication is clear: If a trial court is required to appoint counsel for a child when it perceives that the child’s best interest is not being sufficiently protected “by the attorneys for the parties,” then there must be some duty on the part of an attorney to protect that interest. The language of the Rule clearly implies that lawyers have that duty; otherwise, it would be necessary to appoint an attorney for a child in every custody litigation.
Based on this, it is evident that the law in New Jersey is unclear as to whether an attorney has an obligation to the child of the parent we represent. No law explicitly establishes such an obligation, and the vague laws that implicitly address the issue fail to be consistent in their meaning and intent.
Still, even without any clear law on the issue, does a moral and professional duty exist on the part of an attorney to protect the best interests of a child? The Academy of Matrimonial Lawyers believes it does. The Academy’s Bounds of Advocacy, 6.1 through 6.6, specifically address an attorney’s obligation to protect the welfare of the client’s child, including the requirement of 6.1 that “An attorney representing a parent should consider the welfare of, and seek to minimize the adverse impact of the divorce on, the minor children.” This author believes that to be a laudable goal.
In an adversarial system that sustains conflict and creates chaos in the lives of families in litigation, attorneys are uniquely positioned to have an impact. We know the most intimate details of our clients’ lives: they confide in us, they trust us, and they rely on us to advise them and help make decisions that will shape the rest of their lives and the lives of their children. This is not an obligation to be taken lightly, particularly when clients are in distress, and operating out of emotion rather than logic and reason. Whether we acknowledge it or not, we do, in fact, have an impact at virtually every stage of each case, from the initial consultation when we begin framing parenting issues with a client, continuing when we draft parenting plans, when we retain experts, and in every interaction we have with our clients about parenting issues. Our impact can be to fuel the battle, or it can be to quell it and provide sound, rational advice and representation. The fact that we have such an impact creates a responsibility that surely implicates the best interests of the children, even if this duty is not clearly set forth under the law.
Many attorneys agree we have an obligation, although we may not agree on what that is, or how to balance it with the duty to our clients. We argue for the children’s “best interests” in these cases. The experts we retain conduct a “best interests” evaluation. When making the case for why a client should have custody, or why a particular parenting plan is most appropriate, the attorney’s entire presentation is based on the “best interests” of the child. In arguing for those best interests, we have to have some understanding, and some belief, as to what is, in fact, best for our clients’ children. It is difficult to argue a position effectively if we don’t believe it, or if it flies in the face of facts that contradict it.
We routinely include language in settlement agreements about “non-disparagement” and “co-parenting” and “fostering a positive relationship between the children and the other parent.” Some attorneys even include a “Children’s Bill of Rights” in the body of their agreements. We do this as a matter of course, even when our clients do not specifically request it. Most clients do not even think of these kinds of provisions, but lawyers promote and include them.
Should we blindly fight for what our clients want “right or wrong?” Most would answer in the negative. We understand that advocacy has limits and we advise clients against bad decisions. We do not ignore when a client says he is willing to take a grossly imbalanced share of assets to his clear disadvantage. We do not ignore when a client waives support when it is otherwise a clear case for substantial alimony. Instead, we counsel these clients, attempt to educate them about their rights, and urge them to reconsider. We do that when it comes to money and to property and we urge clients to act in their own best interests. Surely, we have at least that same obligation when a parent takes a position with respect to custody or parenting that is likely to be damaging. The “wishes” of the client in the heat of a bitter divorce can be destructive, motivated by anger, revenge, fear, and misunderstanding. If a parent’s actions are damaging a child, in the end, that is not only bad for the child, but it is bad for the parent and society as a whole.
The impact we have is not just on the final outcome. For example, when clients complain that children are depressed, or are acting out, or are having difficulty after seeing the other parent, they often conclude that the reason is due to some inappropriate behavior on the part of the other parent. If we know anything about children and divorce, we should know that the simple act of making transitions between parents triggers reactions, such as regression, aggressive behavior, sadness or depression. Children have those reactions even when the other parent was the model of good parenting. In fact, the better the visit, the more difficult the transition might be. If we understand this, don’t we have a duty to explain it to our clients, or to even suggest that our clients seek therapeutic help or coaching so that they better understand the needs of their children in the divorce process?
In the course of a typical contested case, we receive many complaints that a parent is acting inappropriately with respect to the children. The problem might involve talking about the divorce in front of the children, difficulties with transitions between households, restricting parental access, disparaging a parent, or encouraging a child to disrespect a parent. We react to protect our client, but we are also exercising discretion and common sense, and relying on our experience to counsel or “coach” clients to do the right thing when it comes to the kids. Each time we receive complaints like these from our clients, we have a choice about how we respond. We can write accusatory letters, threatening motions and reprisals, or we can step back and ask the client questions to better understand the circumstances surrounding the issue. Maybe the other parent acted inappropriately, maybe not. Whatever the case, we can seek ways to constructively deal with the issue, or we can attack and seek to punish the offender. In that moment, we can choose whether to respond in way that is likely to sustain conflict and chaos (which we all agree is contrary to the best interests of the children), or to work with the client and opposing counsel to help the parent, the child and the family as a whole.
The author of this article does not believe that lawyers are simply hired guns, promoting our clients’ agendas, no matter what they are. We know that, despite the anger of the moment, parents need to find a way to deal with one another, and hopefully co-parent their children in the years after the litigation is over. We believe that lawyers have an affirmative responsibility to take the myriad of opportunities presented to actively encourage clients to be responsible parents and act in their children’s best interests. We may not always know what that is, but we certainly can spot conduct that is contrary to children’s best interests, and we can respond by informing and coaching our clients accordingly.
The duty of an attorney to a child that so many lawyers already recognize should be clarified and embodied within the law in New Jersey. This will undoubtedly involve discussion and debate, and hopefully result in reforming our laws to not only eliminate the apparent inconsistencies between the RPCs and the Rules of Court, but to specifically address an attorney’s duty to the child of a client in family litigation.

Special thanks is given to Lisa Steirman Harvey, Esq., Of Counsel with Tonneman, Vuotto & Enis, LLC, and Amy Wechsler, Esq. of Copeland, Shimalla, Wechsler & Lepp.