In extreme cases, when a child is refusing to visit with a parent and the court is threatening the primary custodial parent with contempt or other drastic sanctions, one tactic that can help deflect blame for the child’s failure to abide by the custody order is for the custodial parent to request that the child be appointed his or her own attorney.
A court can appoint an attorney to represent a child in a custody action under Pennsylvania Rule of Civil Procedure 1915.11. Rule 1915.11 states as follows:
(a) The court may on its own motion or the motion of a party appoint an attorney to represent the child in the action. The court may assess the cost upon the parties or any of them or as otherwise provided by law.
There is little case law interpreting when an attorney should be appointed for a child, and the court is granted broad discretion in these matters.
A strong case for appointing a child his or her own attorney can be made, however, where the custodial parent alleges that an older child refuses to visit the other parent due to alienation or psychological distress. Once appointed, the child’s attorney is supposed to advocate for the child’s preferences, as opposed to the theoretical “best interest” of the child. Thus, this type of representation is decidedly different than when a court appoints a guardian ad litem to argue for the “best interest” of a child.
In advocating for the child, the child’s attorney will likely need to present evidence that it is the child who refuses to follow the custody order (as opposed to the custodial parent trying to impede the custody order), and that the child’s mental well-being (and perhaps physical well-being) is in danger if the child is forced to abide by the order. Indeed, in most cases the evidence will reflect that the custodial parent has actually attempted to force the child to follow the order and visit with the other parent, but that the child resisted.
Seeking to have an attorney appointed to represent a child is a drastic measure. Unfortunately, it is occasionally necessary to protect both the child and the custodial parent from unfair, adverse action by the court.
We believe legitimate concerns on behalf of a child should not be ignored. Rather than attempting to enforce unworkable and potentially injurious custody schedules where a child refuses to visit with a parent, children would be better served if the courts focused on attempting to rehabilitate the child’s damaged psyche through counseling or other means. Of course, the ultimate question is whether such relationships, once damaged, can be rehabilitated or repaired so long as the child remains an unwilling participant. Parties in the midst of custody litigation and/or divorce often have had volatile relationships that inevitably adversely affected their children and their relationships with one or both parents. These concerns cannot be ignored.