Leary v. Leary

Brief Fact Summary. Appellant father contended that the trial court erred in failing to instruct the children’s counsel as to her duties.

Synopsis of Rule of Law. Children’s counsel must serve various roles, varying between the attorney as guardian and advocate.

Facts. Appellant Richard Leary asked the court to resolve several issues raised by his divorce from appellee Barbara Leary. Appellant contends that the trial court erred in awarding his ex-wife sole legal custody by failing to instruct the children’s counsel as to her duties. He claims due process requires the parties to know precisely the role of the child’s representative from the time of appointment in order to prepare for and respond to the evidence.

Issue. Did the trial court err in failing to instruct the children’s counsel as to her duties?

Held. The lack of articulated directions by the trial judge did not harm Mr. Leary.
When the court appoints an attorney to be a guardian ad litem for a child, the attorney’s duty is to make a determination and recommendation after determining the best interests of the child. The attorney has a responsibility primarily to the court, and has absolute immunity for judicial functions, including testifying and making reports and recommendations.

A dichotomy exists between the attorney as guardian and the attorney as advocate. An attorney must take care to abide by the Rules of Professional Conduct regarding representation of a client under a disability. The best example is how an attorney should proceed when a child expresses a preference for living with one parent, but the attorney believes that it would not be in the child’s best interests. There are two schools of thought in this situation. One holds that the preference is but one fact to be found, while the other maintains that without full advocacy of the preference there is little reason to have a child’s representative. An intermediate view suggests a continuum of roles rather than the extremes of advocate and factfinder.

Studies show that attorneys that would characterize their role as either advocate or factfinder discussed responsibilities that were inconsistent with the characterization. A Yale article suggests that a deviation from a pure advocacy role is not a bad thing, and that attorneys that deviate may advance the interests of their clients more than would an attorney who limits himself to advocacy.

In the instant case, the trial judge did not enter an order stating the purpose of appointment. Mr. Leary claims the appointed counsel viewed her role as simply to convey to the court the desire of the children. However, counsel also determined that the children’s preferences were not improperly motivated. This forced her to take the middle ground between advocacy and fact finding. It was the trial court, not counsel, that determined that joint custody was inappropriate in this case.

Discussion. This case demonstrates the various roles that a child’s counsel may take during a custody hearing. The court explains the difference between the attorney as guardian or as advocate, preferring a middle ground in this case.