National Conference of Commissioners on Uniform State Laws (NCCUSL) Standards for the
position that children’s advocates should not make recommendations, file reports, or testify. 54
They argue instead that children’s attorneys should make evidence-based arguments, consistent
with traditional attorney practices, 55 and that they should call their own witnesses and cross-examine the parties’ witnesses to ensure due process while allowing the child’s attorney to
comply with the Rules of Professional Conduct. 56 Scholars have also argued against Best
Interests Attorneys, noting that best interests lawyering creates ethical conflicts for attorneys and
impinges on the rights of the child to direct the litigation. 57 Finally, some scholars have argued
against the appointment of any lawyers at all for children in custody matters, expressing concern
that doing so elevates the child’s position in the litigation unnecessarily, 58 and that lawyers
should be appointed “only when [the court believes] that the child’s wishes need to be forcefully
advocated” and then only “to advocate the outcome desired by the child.” 59 The AAML
recommends, for example, that the purpose of lawyers for children is to advocate for the child’s
expressed wishes60 and the AAML opposes attorneys taking any position absent client direction.
54 ABA Standard, supra note 3, at § II.B; AAML Standard, supra note 3, at 3. 2; UNIF. REPRESENTATION OF
CHILDREN IN ABUSE, NEGLECT, AND CUSTODY PROCEEDINGS ACT, supra note 3, at § 17 (NCCUSL 2007).
55ABA Standard, supra note 3, § III.B cmt. (”Neither kind of lawyer should be a witness, which means that the
lawyer should not be cross-examined, and more importantly should neither testify nor make a written or oral report
or recommendation to the court, but instead should offer traditional evidence-based legal arguments such as other
lawyers make. However, explaining what result a client wants, or proffering what one hopes to prove, is not
testifying; those are things all lawyers do.”).
56 Id. at § III.G.
57 See Barbara A. Atwood, Representing Children Who Can’t or Won’t Direct Counsel: Best Interests Lawyering or
No Lawyering At All?, 53 ARIZ. L. REV. 381, 382 (2011); Linda D. Elrod, Client-Directed Lawyers for Children: It
is the “Right” Thing to Do, 27 PACE L. REV. 869, 910-11 (2007).
58 See generally MARTIN GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S RIGHTS (2005) (arguing that children’s
interests as antagonistic to those of their parents and argues that “children’s rights” can serve as a screen for the
interests of the adults).
59 Martin Guggenheim, The AAML’s Revised Standards for Representing Children in Custody and Visitation
Proceedings: The Reporter’s Perspective, 22 J. AM. ACAD. MATRIM. L. 251, 263 (2009).