Does My Child Need a Lawyer in a Custody Case? What to Expect

Key Points

There are three different jobs and people confuse them constantly. A child's attorney represents what the child wants. A guardian ad litem investigates and reports what's in the child's best interest. An amicus attorney assists the court. Different loyalties, different rules, different outcomes.

In Louisiana, R.S. 9:345 lets a court appoint an attorney for a child after a contradictory hearing, and it lists the factors. It also makes appointment mandatory when a party presents a prima facie case that someone caring for the child has sexually, physically, or emotionally abused the child.

Texas separates the roles by statute. Under Family Code chapter 107, an attorney ad litem owes the child undivided loyalty and confidentiality, while an amicus attorney provides legal services to assist the court in protecting the child's best interests rather than to the child.

Massachusetts runs two parallel tracks: Category E and F guardians ad litem appointed under G.L. c. 215, § 56A to investigate and report, and volunteer ARC attorneys who represent what the child actually wants.

Richard serves as court-appointed counsel for children regularly, and the biggest surprise for parents is that the child's lawyer does not work for either of them and will not report back.

An appointment is not a verdict on your parenting. It usually means the case is intense, protracted, or presenting a conflict the judge can't resolve on the parents' filings alone.

Leslie has practiced family law in New Orleans for more than four decades. Richard is a former family court judge, licensed in Louisiana, Texas, and Massachusetts, and is frequently appointed by courts to serve as counsel for children in contested custody matters.

That last part is why we're writing this. When Richard gets appointed, the first phone call is almost always from a parent who wants to know whose side he's on. The honest answer is nobody's, and understanding why changes how parents behave in these cases.

Three Different Jobs

The single most useful thing in this article is the distinction between these roles, because parents routinely assume they've gotten one when they've gotten another.

Attorney for the child. A lawyer whose client is the child. The child's expressed wishes drive the representation, the same way any client's would. Confidentiality applies. This lawyer advocates for what the child says they want, even when the lawyer privately thinks it's a poor idea, subject to rules about children too young to direct representation.

Guardian ad litem. An investigator for the court. A GAL interviews the parties, the child, and collaterals, reviews records, and files a report with a recommendation about the child's best interest. A GAL is not the child's lawyer and generally owes no confidentiality to the child. In some states GALs are attorneys; in others they're mental health professionals or trained volunteers.

Amicus attorney. A lawyer appointed to assist the court rather than to represent the child. Same investigative posture as a GAL in many respects, but performing legal work for the judge's benefit.

The practical difference lands hardest on confidentiality. If your twelve-year-old tells a GAL something, it may end up in a written report both parents read. If your twelve-year-old tells their own attorney something, it generally doesn't. Children behave very differently once they understand which one they're talking to, and a good child's attorney explains that in the first meeting.

The second difference is about wishes versus interests. A child's attorney may argue for an outcome the GAL opposes. That isn't a malfunction. It's the system deliberately putting both the child's voice and the child's welfare in front of the judge as separate inputs.

Louisiana

Louisiana handles this in R.S. 9:345, and the statute is more specific than most.

In any child custody or visitation proceeding, the court may appoint an attorney to represent the child, on its own motion, on motion of a parent or party, or on motion of the child. Appointment follows a contradictory hearing at which the court determines whether it's in the child's best interest, considering:

whether the proceeding is exceptionally intense or protracted
whether an attorney representing the child could give the court significant information not otherwise readily available or likely to be presented
whether there's a possibility that neither parent can provide an adequate and stable environment
whether the interests of the child and either parent or another party conflict
any other relevant factor

Then subsection B: the court shall appoint an attorney if, at that hearing, any party presents a prima facie case that a parent or other person caring for the child has sexually, physically, or emotionally abused the child, or knew or should have known the child was being abused. That's mandatory, not discretionary, and it's the provision that produces a large share of Louisiana appointments.

The order appointing the attorney serves as enrollment as counsel of record on behalf of the child. And the statute directs the appointed attorney to interview the child, review all relevant records, and conduct discovery as needed to ascertain facts relevant to custody or visitation.

Note the word Louisiana uses. Attorney, representing the child. Not investigator, not evaluator. That framing matters, and it's the reason Louisiana practitioners talk about the child's lawyer rather than a GAL in most private custody cases.

You'll also see R.S. 9:345 referenced in Louisiana grandparent visitation matters, because Civil Code article 136 requires a contradictory hearing under 9:345 before the court rules on non-parent visitation, to determine whether counsel should be appointed for the child.

Texas

Texas defines the roles cleanly in Family Code chapter 107, and if you want to understand how these appointments work nationally, this is the statute to read.

An attorney ad litem is defined as an attorney who provides legal services to a person, including a child, and who owes that person the duties of undivided loyalty, confidentiality, and competent representation. That's the child's lawyer, full stop.

An amicus attorney is defined as an attorney appointed by the court in a suit other than one filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child. That's the judge's lawyer on the child question.

A guardian ad litem represents the child's best interests and, in Texas, is frequently a trained volunteer advocate, particularly in cases brought by the Department of Family and Protective Services.

Texas also anticipated the awkward case where a child's expressed wishes and best interests diverge. An attorney ad litem, or an attorney appointed in the dual role, who determines that the child can't meaningfully formulate the child's objectives of representation may present the position the attorney determines will serve the child's best interests.

In private Texas custody litigation, the amicus attorney is the more common appointment. When parents ask me why they got an amicus rather than an attorney ad litem, the answer is usually that the judge wanted an independent investigation more than she wanted a second advocate in the courtroom.

Massachusetts

Massachusetts runs two tracks and calls them different things than either of the other states.

The guardian ad litem, appointed under G.L. c. 215, § 56A, investigates facts in cases involving the care and custody of minor children and reports to the court. Massachusetts categorizes them, with Category F investigators and Category E evaluators, and adopted Standards for Category F Guardian Ad Litem Investigators in 2005. A Massachusetts GAL is an investigator, not an advocate, and the standards are explicit that GALs do not advocate on the child's behalf. Category F GALs are often attorneys with custody experience; where domestic violence, substance abuse, mental health, or abuse allegations are central, a mental health professional may be appointed instead.

The ARC attorney, from the Attorney Representing Children program, is a Massachusetts family law attorney who has completed additional training and volunteers to serve. The ARC attorney's role is to represent what the child wants, not to recommend what's best. Where the child is too young to articulate wishes, the ARC attorney may, with the court's permission, use substituted judgment.

Either parent can request either appointment, or a judge can make one on her own initiative. The distinction matters practically: if you want an independent investigation and a recommendation, that's a GAL. If you want the child's actual position in front of the judge, that's ARC.

What Happens After the Appointment

The child's attorney does not work for you and will not report to you. I get calls from parents wanting to fill me in on what the other parent has been doing. I'll listen, because information is part of the job, but I'm not going to reciprocate. I'm not going to tell you what your child said. I'm not going to preview my position. And I notice which parent seems to understand that and which one keeps trying.

I will want to talk to your child alone. In a neutral setting, without either parent present, more than once if the case warrants it. Children under observation by a parent tell you what the parent wants to hear, every time, and everyone in this business knows it.

Coaching is transparent and it's fatal. A nine-year-old who uses the phrase "unstable environment" did not generate that phrase. When a child recites talking points, it tells me something about a parent, not about the other household. I have written that observation into more than one report, and judges take it seriously. If you do nothing else after reading this article, do not prepare your child for the meeting beyond telling them who I am and that they can say whatever's true.

Your child's stated preference is not the whole case. Courts consider the preference of a child mature enough to express one, and Louisiana lists it among the factors under Civil Code article 134 and article 136. It's a factor, weighted by age, maturity, and whether the preference appears independently formed. A fifteen-year-old with a considered reason carries much more weight than an eight-year-old who wants the house with the pool. And a preference that tracks a parent's litigation position too precisely gets discounted.

Somebody pays for this. Court-appointed counsel for children is usually paid by the parties, allocated by the court, sometimes proportionally to income, sometimes reduced or waived on a showing of inability to pay. Ask about it at the appointment hearing rather than being surprised by the first invoice.

When Appointment Actually Helps

It genuinely helps when: there are abuse or neglect allegations; the case has been protracted or unusually bitter; a child is old enough to have a meaningful position that neither parent will present accurately; there's a real concern about whether either parent can provide stability; a child is being used as a messenger or an informant; or the child's interests diverge from both parents' positions, which happens more than people expect.

It helps less when the dispute is narrow and financial; the children are very young; both parents are functional and simply disagree about a schedule; or the request is a strategic move to add pressure and expense.

Parents sometimes ask for a child's attorney hoping the lawyer will validate them. That is the wrong reason, and it produces the outcome you'd expect. An independent professional with access to your child, your co-parent, and the records is going to form an independent view. If you're not prepared for that view to be complicated, don't ask for the appointment.

This article is general information about family law and is not legal advice. Rules governing appointment of counsel, guardians ad litem, and amicus attorneys for children vary substantially by state, and the Louisiana, Texas, and Massachusetts provisions discussed here won't apply the same way elsewhere. Talk to an attorney licensed where your case is pending.

Frequently Asked Questions

Does my child need their own lawyer in a custody case? Usually not, but sometimes. Courts appoint counsel for children when a case is exceptionally intense or protracted, when abuse is alleged, when a child's interests conflict with a parent's, or when a lawyer for the child could bring the court information it wouldn't otherwise get. Louisiana lists those exact factors in R.S. 9:345. In a straightforward schedule dispute between two functional parents, an appointment usually adds cost without adding much.

What's the difference between a child's attorney and a guardian ad litem? The child's attorney represents what the child wants and owes the child loyalty and confidentiality. A guardian ad litem investigates and reports to the court on what's in the child's best interest, and generally owes the child no confidentiality. Texas states this distinction directly in Family Code chapter 107, and Massachusetts runs both tracks through its GAL program and its ARC attorney program.

What is an amicus attorney? Under Texas Family Code chapter 107, an amicus attorney is appointed to provide legal services necessary to assist the court in protecting a child's best interests, rather than to provide legal services to the child. Functionally, the amicus works for the judge on the child question. It's the more common appointment in private Texas custody litigation.

Can my child's lawyer tell me what my child said? Generally no, if the appointee is genuinely the child's attorney, because confidentiality attaches to that relationship. A guardian ad litem is different: a GAL's findings typically go into a written report that both parents see. Ask at the outset which role has been appointed, because it changes what your child should expect.

When must a Louisiana court appoint an attorney for a child? Louisiana R.S. 9:345 makes appointment mandatory when, at the contradictory hearing, any party presents a prima facie case that a parent or other person caring for the child has sexually, physically, or emotionally abused the child, or knew or should have known the child was being abused. In other situations, appointment is discretionary based on the listed factors.

Should I tell my child what to say? No, and it will hurt you. Coaching is easy to spot, because children repeat adult vocabulary they don't otherwise use and recite positions that track a parent's filings. When that happens, it becomes information about the coaching parent. Tell your child who the person is, that they can be honest, and that no answer will get anyone in trouble. Then stop.

Does what my child wants decide the case? No. A child's preference is one factor among many, weighted by age, maturity, and whether the preference appears independently formed. Louisiana includes it in the best interest factors. An older teenager with a thought-through reason moves a judge considerably. A younger child, or one whose stated preference mirrors a parent's talking points, moves a judge much less.

Who pays for the child's attorney? Typically the parties, with the court allocating the cost, often in proportion to income and sometimes reduced or waived for a party who can't afford it. Raise the question at the hearing on appointment so the allocation is in the order rather than in dispute later.