Custody: Kids, Counsel and the Constitution

Fifty years ago, the United States Supreme Court in In re Gault held that children have the constitutional right to traditional counsel in cases where their physical liberty interests are at stake. As a result, children are provided counsel during the adjudication phase of delinquency proceedings in order to ensure protection of their rights. Gault did not, however, extend the automatic right to traditional counsel to other contexts in which children most frequently appear in court: family law cases. This Article explores whether a child’s right to traditional counsel should be extended to children in the private custody context. The article reviews cases that have explicitly expanded children’s rights since Gault, both children’s cases expanding their rights in various contexts and adults’ cases with implications for children in the family context. In addition, it reviews current inconsistencies in practice, rules and standards related to children’s attorneys. It concludes that children’s constitutional rights require traditional client-directed advocacy by attorneys in custody matters, and recommends a role of counsel that protects constitutional rights while ensuring consistent and ethical advocacy by children’s attorneys