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child advocates in Kentucky custody matters. Part III explores the impact of Morgan beyond the
scope of the custody context in Kentucky. Part IV explains and clarifies the investigator/reporter
and advocate roles delineated in Morgan and explores ways in which they may be better defined
in the future; and Part V explores the ways in which practitioners from other jurisdictions may
use lessons from Morgan to seek role clarity in their own jurisdictions.
I. ROLE CONFUSION AND CHILDREN’S LAWYERS NATIONALLY
Confusion about the role of attorneys representing children is ubiquitous. 2 Practical and ethical
issues related to role confusion have been debated by scholars and practitioners for over twenty
years, 3 but there is still a lack of national consensus about the proper role of counsel for children
in private custody matters. 4
When advocates are appointed for children in custody matters, they generally serve in one of two
roles: guardian ad litem (GAL) or some form of attorney for the child. 5 The GAL is obligated to
2 See, e.g., Barbara Ann Atwood, The Uniform Representation of Children in Abuse, Neglect and Custody
Proceedings Act: Bridging the Divide Between Pragmatism and Idealism, 42 FAM. L. Q. 63, 75 (2008) (“[M]any
states routinely appoint lawyers as guardians ad litem without careful delineation between the roles.”).
3 See, e.g., Recommendations of the Conference on Ethical Issues in the Legal Representation of Children, 64
FORDHAM L. REV. 1301 (1996); Recommendations of the UNLV Conference on Representing Children in Families:
Child Advocacy and Justice Ten Years After Fordham, 6 NEV. L. J. 592 (2006); ABA, American Bar Association
Standards of Practice for Lawyers Representing Children in Custody Cases, 37 FAM. L.Q. 131 (Summer 2003)
[hereinafter ABA Standard]; American Academy of Matrimonial Lawyers Standards for Attorneys for Children in
Custody or Visitation Proceedings With Commentary, 22 J. AM. ACAD. MATRIM. L. 227 (2009) [hereinafter AAML
Standard]; National Conference of Commissioners on Uniform State Laws Uniform Representation of Children in
Abuse, Neglect and Custody Proceedings Act, 42 FAM. L. Q. (Spring 2008) (withdrawn from consideration by the
ABA House of Delegates) [hereinafter NCCUSL Standard].
4 See, e.g., In re Marriage of Campbell, 868 S. W.2d 148 (Mo. Ct. App. 1993) (guardian ad litem was acting within
the scope of his responsibilities when he conducted discovery, interviewed the parties’ older child, actively
participated in the trial and offered recommendations to the court). But see Stefan v. Stefan, 465 S.E.2d 734, 736
(S.C. Ct. App. 1995) (family court abused its discretion by delegating to the parenting specialist and the guardian the
judicial authority to devise a visitation plan for the father).
5See, e.g., IOWA CODE ANN. § 232.89( 4) (West 2016); N.C. GEN. STAT. ANN. §§ 7B-601, 7B-1108, 7B-1200 (West
2011); TENN. SUP. CT. R. 40A § 1(c)( 1) (West 2016) (provisional) (in Tennessee, the guardian ad litem may be an
attorney or a specially trained non-lawyer such as the Court-Appointed Special Advocates (CASA)); WIS. STAT.
ANN. § 767.407 (West 2008) (“[t]he court shall appoint a guardian ad litem for a minor child in any action affecting