YOU ARE DOWNLOADING DOCUMENT

Please tick the box to continue:

Transcript
Page 1: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Whose Voice….

Andrea J. MooneyAndrea J. Mooney

Clinical ProfessorCornell Law School

Page 2: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Two little boys: Gerald and Jeremy

Page 3: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Gerald’s StoryGerald’s Story

Page 4: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

In re Gault, 387 U.S.1 In re Gault, 387 U.S.1 (1967)(1967)

Page 5: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

RepresentatiRepresentation of on of

children in children in the U.S.the U.S.

Page 6: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Representation of children Representation of children in the U.S.in the U.S.

• Parents speaking for children:Yoder v. WisconsinTinker v. DesMoines

Page 7: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Representation of children Representation of children in the U.S.in the U.S.

• Non-parents speaking for children:– Attorney for the child (“law guardian”)

• Represents child’s position/wishes

– Guardian ad litem• Represents child’s best interests

Page 8: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Guardian ad litemGuardian ad litem

• “ad litem” – for the case• May be a lawyer, social worker• Best interest representation• May/may not consult with child• May/may not inform court that this is

not what child wants

Page 9: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Representation of Representation of childrenchildren

• Most states appoint Guardians ad litem (GALs)

• Five states appoint lawyers for children• Some states do a hybrid: lawyers who

are acting as GALs

Page 10: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Problems with GAL Problems with GAL representationrepresentation

• Lawyer has a duty to “zealously advocate”

• Exception: if client is infant or incompetent

• Little guidance provided as to age or developmental level

• How can you zealously advocate if you are determining what is in the child’s best interest?

Page 11: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Representation of children

• Problems with straight attorney representation:– Can’t do it in every case– Little guidance as to age, developmental level– Lawyer must develop on-going relationship

with child and take developmental concerns into account

– “substituted judgment” too easy

Page 12: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

When do children need When do children need representation?representation?

• State vs. child

• State vs. parent

• Parent vs. parent

• Parent vs. child

Page 13: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Children’s representation

• Except in parent v. parent (custody) cases, state must first prove that parent (or child) has done something before it can ask what is in the child’s best interest.

• Custody: only question is child’s best interest

Page 14: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

State vs. ChildState vs. Child

• Juvenile delinquency– State is taking a child’s liberty away– Quasi-criminal procedures

• Status offenses– Truancy– Ungovernability– Incorrigibilty– Beyond the lawful control of a parent

Page 15: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

State v. child

• Child is present in court

• Court may ask to speak to child

Page 16: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

State vs. ChildState vs. Child

• Lawyer almost universally functions as a “defense” attorney in J.D. cases

• Lawyer may also function as GAL in status offenses

Page 17: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

State vs. ParentState vs. Parent

• Child abuse or neglect

• Termination of parental rights

Page 18: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

State v. parent

• Child almost never in court

• Difficult for attorneys to zealously advocate for a client in some circumstances

• Hearsay exception to evidence rules allow someone else (caseworker, therapist) to testify as to what a child said, or even did

Page 19: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

State vs. ParentState vs. Parent

• Child abuse or neglect: Jeremy’s story

• Ethical obligations of attorneys

Page 20: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Parent vs. Parent• Custody – representation for the

child is most often discretionary

• Ultimate question for the court is the child’s best interests

Page 21: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Parent v. Parent

• Court may speak with child in chambers

• May aggravate the “Gumby-syndrome”

• Children need to know what power they have/do not have

Page 22: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Parent v. child

• Status offenses: child is incorrigible

• Nebraska’s safe haven law

Page 23: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

The child’s voiceThe child’s voice

• In GAL cases, may not ever be heard

• In attorney for the child, may be heard

Page 24: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

The child’s voiceThe child’s voice

• Children only come to court in JD and Status offense cases

• Children rarely testify in court• Children come to court for a

permanency hearing, but are not really “heard.”

Page 25: Andrea J. Mooney Whose Voice…. Andrea J. Mooney Clinical Professor Cornell Law School.

Fin


Related Documents