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What the Heck is an Amicus???

In some cases involving children and custody rights, the court may appoint an amicus attorney to represent the best interests of the children. Tex. Fam. Code§ 107.001(1). But what is an amicus attorney? When are they appointed? What do they do? How does it affect the case?

In brief, an amicus attorney is not the attorney of any party to the suit but is rather an attorney appointed to help protect the child’s interests. Id. Despite this role, it must be noted that the amicus attorney is also not the child’s attorney. In re S.A.G., 403 S.W.3d 907, 915 (Tex. App.—Texarkana 2013). “[T]he amicus attorney ‘by definition does not exactly have a client.’” Id. This means that the amicus attorney is not “bound by the child’s objectives [] or the wishes that the child may express.” Id. See also Tex. Fam. Code§ 107.005(a). The amicus attorney can be thought of as the attorney of the trial court. O’Connor v. O’Connor, 245 S.W.3d 511, 515 (Tex. App.—Houston [1st Dist.] 2007).

Though not the child’s attorney, the amicus attorney must understand the standards governing the representation of children in custody cases and be trained in child advocacy. Tex. Fam. Code§ 107.003. Also like an attorney representing a client, the amicus attorney has a limited duty of confidentiality to the child concerning communications. Id. at § 107.005. The amicus attorney may disclose such information if the amicus attorney determines such disclosure is necessary to assist the court in protecting the child’s best interests. Id. Further, though as stated above the amicus attorney is not bound to argue for the child’s expressed wishes, the amicus attorney has a duty to, with the consent of the child, convey the child’s wishes to the trial court. Id.

An amicus attorney may be appointed when the trial court wants help understanding and protecting the best interests of the children. In certain cases—in some suits requesting termination of a parent’s rights—the trial court is required to appoint an amicus attorney (or an attorney ad litem, i.e., an attorney to represent the child) unless the court finds the child’s interests are already adequately represented by a party and that there is no conflict of interests between the party and the child. Id. at § 107.021(a-1).

To assist the court in protecting the best interests of the child, an amicus attorney is empowered to interview the child, all parties to the suit, and anyone with significant knowledge of the child’s circumstances such as a foster parent, obtain copies of relevant records, and participate in the litigation in the same manner as the attorneys of the parties to the suit. Id. at § 107.003(a). Thus the amicus attorney “may conduct discovery procedures, call and question witnesses.” Allison v. Walvoord, 819 S.W.2d 624, 627 (Tex. App.—El Paso 1991) (Woodard, J., concurring). The amicus attorney may further take action he or she considers necessary to “expedite the proceedings” and encourage the parties to come to a settlement. Tex. Fam. Code § 107.003. At the resolution of the case, the amicus attorney must review and sign or refuse to sign any order affecting the child. Id.

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