The Child's Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity

Authors

  • Jamie Rosen


  • I would like to express my sincerest appreciation to everyone who has supported me throughout law school and during the note writing process. Professor Schepard, this Note would not have been possible without all of your insight and feedback. To my friends and family, thank you for your continued guidance and support. I would also like to thank Professor Lawrence Jay Braunstein and Hilary Casper, Esq. for their help in researching and editing this note.

Correspondence: jamiearosen@gmail.com

Abstract

Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client-centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client-directed model of representation is not adequate. This Note proposes that the Child's Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.

Ancillary