THE ROLE OF AN AMICUS ATTORNEY IN A SAPCR
In a suit affecting the parent-child relationship [SAPCR], an amicus attorney may be appointed to assist the trial court in determining the best interests of the child. For the purposes of such a suit, the role of an “amicus attorney" is defined by statute as follows:
“Amicus attorney" means an attorney appointed by the court in a suit, other than a suit 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.
Tex. Fam. Code Ann. § 107.001(1); see also O'Connor v. O'Connor, ___ S.W.3d ___ , No. 01-06-00445-CV, 2007 WL 1440990, at *4 (Tex. App.- Houston [1st Dist.] May 17, 2007, no pet. h.) (“Because the amicus attorney is 'to provide legal services to assist the court,' the trial court is, in effect, the amicus attorney's client for a limited purpose. But the trial court is not a party . . . .").
AMICUS ATTORNEYS IN TX COURTS: THEIR STATUTORY JOB DESCRIPTION
The Texas Family Code explains the role and duties of an amicus attorney in some detail:
An . . . amicus attorney appointed to assist the court:
(1) shall:
(A) subject to Rules 4.02, 4.03, and 4.04, Texas Disciplinary Rules of Professional Conduct, and within a reasonable time after the appointment, interview:
(i) the child in a developmentally appropriate manner, if the child is four years of age or older;
(ii) each person who has significant knowledge of the child's history and condition, including any foster parent of the child; and
(iii) the parties to the suit;
(B) seek to elicit in a developmentally appropriate manner the child's expressed objectives of representation;
(C) consider the impact on the child in formulating the attorney's presentation of the child's expressed objectives of representation to the court;
(D) investigate the facts of the case to the extent the attorney considers appropriate;
(E) obtain and review copies of relevant records relating to the child as provided by Section 107.006;
(F) participate in the conduct of the litigation to the same extent as an attorney for a party;
(G) take any action consistent with the child's interests that the attorney considers necessary to expedite the proceedings;
(H) encourage settlement and the use of alternative forms of dispute resolution; and
(I) review and sign, or decline to sign, a proposed or agreed order affecting the child;
(2) must be trained in child advocacy or have experience determined by the court to be equivalent to that training; and
(3) is entitled to:
(A) request clarification from the court if the role of the attorney is ambiguous;
(B) request a hearing or trial on the merits;
(C) consent or refuse to consent to an interview of the child by another attorney;
(D) receive a copy of each pleading or other paper filed with the court;
(E) receive notice of each hearing in the suit;
(F) participate in any case staffing concerning the child conducted by an authorized agency; and
(G) attend all legal proceedings in the suit.
Tex. Fam. Code Ann. § 107.003.
In addition to these duties listed above, the following responsibilities are imposed upon an amicus attorney:
(a) Subject to any specific limitation in the order of appointment, an amicus attorney shall advocate the best interests of the child after reviewing the facts and circumstances of the case. Notwithstanding Subsection (b), in determining the best interests of the child, an amicus attorney is not bound by the child's expressed objectives of representation.
(b) An amicus attorney shall, in a developmentally appropriate manner:
(1) with the consent of the child, ensure that the child's expressed objectives of representation are made known to the court;
(2) explain the role of the amicus attorney to the child;
(3) inform the child that the amicus attorney may use information that the child provides in providing assistance to the court; and
(4) become familiar with the American Bar Association's standards of practice for attorneys who represent children in custody cases.
(c) An amicus attorney may not disclose confidential communications between the amicus attorney and the child unless the amicus attorney determines that disclosure is necessary to assist the court regarding the best interests of the child.
Id. § 107.005.
THE FUNCTION OF THE AMICUS ATTORNEY IN THE FAMILY COURT SYSTEM IS TO ASSIST THE COURT
O'Connor, 2007 WL 1440990, at *4 (“The amicus attorney is appointed specifically to assist the court. and the plain language of the statutory definition of amicus attorney can mean only that the amicus attorney assists the court that appointed [the amicus attorney.]")
WHAT IS THE SCOPE OF A TRIAL JUDGE'S POWER TO APPOINT AN AMICUS ATTORNEY (AND OTHER PROFESSIONALS) IN A SAPCR
A trial court's powers to make discretionary appointments are addressed in section 107.021 of the Texas Family Code:
(a) In a suit in which the best interests of a child are at issue, . . . the court may appoint one of the following:
(1) an amicus attorney;
(2) an attorney ad litem; or
(3) a guardian ad litem.
. . .
(b) In determining whether to make an appointment under this section, the court:
(1) shall:
(A) give due consideration to the ability of the parties to pay reasonable fees to the appointee; and
(B) balance the child's interests against the cost to the parties that would result from an appointment by taking into consideration the cost of available alternatives for resolving issues without making an appointment;
(2) may make an appointment only if the court finds that the appointment is necessary to ensure the determination of the best interests of the child, unless the appointment is otherwise required by this code; and
(3) may not require a person appointed under this section to serve without reasonable compensation for the services rendered by the person.[16]
Tex. Fam. Code Ann. § 107.021
SOURCE: In re Collins, No. 14-07-00624-CV, 242 S.W.3d 837 (Tex.App.- Houston [14th Dist.] Dec 17, 2007)
RELATED CONCEPTS: AD-LITEM ATTORNEY FOR THE CHILD, GUARDIAN AD LITEM, ATTORNEY AD LITEM, NEXT FRIEND
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