By Brian J. McLaughlin, Jr., Esq.
The ARC program is a program in the Norfolk, Plymouth, Bristol, Barnstable, Middlesex, and Essex probate court system where you have the opportunity to represent children through often difficult and complex family law litigation matters. Unlike other situations where the substituted judgment standard is applied, or you are acting in the child’s best interest, the goal of this program is to give the child a voice in the litigation process.
By way of background, there is recent material written on this subject. The recent MBA article, “The Role of Child Counsel in the Attorneys Representing Children Programs in the Probate and Family Courts” details the ARC program and the role of the attorney and the process.
This article is intended to add practical experience and tips as I currently have an ARC case. I want to take the opportunity first to thank the parents, the inspirational children, and the attorneys involved in that case for being able to serve as the arc attorney.
The first step when taking on an ARC case once you receive the order from the court is preparing for the client interview. One needs to be aware that it might take more prep time than the average client interview. You should review the client’s engagement letters and make sure they are simple and easy to understand as well as age-appropriate. Then the next simple step you can take is arranging your office to be friendly and inviting. A lawyer’s office can be intimidating, even for an adult, let alone for a young child. I can remember how scary it was going into doctors’ offices as a young kid. Call each parent and see if you can identify what the child’s favorite snacks are, or a toy if appropriate.
Then the next step is to read the pleadings of the case and decide upon questions which you will need to ask the children. Some questions can be difficult to ask of a child. Unlike psychiatrists and therapists, most lawyers have no background in developmental psychology. It may be necessary to reach out to friends, and family members who have children and speak with children daily. Normally, I would not write down client questions ahead of time. In this case, I wrote the questions. I also called my sister as she’s on the front lines of dealing with children on a daily basis, and asked her for her advice on the structure of the questions. Except for being an uncle, I do not have personal experience with children; I spoke with her about how to speak to young children.
If you do not have a trusted friend who has children, here are suggestions which may help.
- Ask yourself if you need to modify your questions or language? Lawyers love to use big words, take them out. “Arguendo” can be saved for another day.
- You want to make sure that you ask open-ended questions and to not curtail the children’s answers.
- While with adults, you may be analyzing the case and its merits; with a child, your viewpoint or lens is drastically different, particularly with the In the Voice of the Child program where you are acting on their behalf to give them the ability to participate meaningfully in the judicial process.
- Elicit free narrative from the child.
- Sit on the same level.
- Limit the number of words used in a sentence.
Positioning in the room is important. For instance, studies have said that sitting in circles promotes collaboration1.
You may want to do something as simple as eating the child’s favorite snack during the interview so that it appears more like a conversation rather than an interrogation. If you can, have someone taking notes for you. It is best to do so because it is better for you to focus on the child. This also makes it clear to the children that you are giving them your full attention.
You need to make clear what is protected by attorney-client privilege because you need to discern between what the child is telling you in privilege and what the child wants to be told to the courts.
The final piece of the interview is to set ground rules and explain attorney client privilege. Setting ground rules makes it easier for the parents and the children and avoids future bumps in the road for all parties involved. Think about your ground rules and involve the parties when determining them. The last but most critical piece is explaining attorney-client privilege to a child which seems complicated at first but may be as simple as, “anything you tell me, I will keep secret unless it causes harm to you or to others”.
The next critical piece when taking on an ARC case is knowing your role: You are not a GAL, but rather have been given only the authority to be the child’s voice. It is clear from the case law that children’s voice attorneys are appropriate and there is sufficient authority to appoint an attorney for the children. Remembering that you are the child’s voice and not the GAL can in fact be a comforting thought because you are literally the mouth piece for the child. You can advise on what you think might be appropriate, but if a child wants to eat candy for supper, then you need to voice that to the court. You as the attorney need to advise the court as to what your client (the child) wants.
In many respects it’s like any other attorney-client relationship. Although you are not representing either parent, you may find that by giving the child a voice, you are contributing to the stability of the family. You are not trying to save the day, but you are trying to get the child through until they can age out of the system. One frustration you may initially face is a feeling that you should act like a GAL and investigate issues. This frustration will be replaced by comfort when you realize you are literally the voice of the child and not playing an investigative role.
Hopefully these insights will make it a smoother transition as you take on the voice of the child challenge. In closing I would offer the following quote from Jeff Melick, one of the founders of the ARC Program in Middlesex and Essex: “Handling ARC cases has been one of the most rewarding things I’ve ever done as a lawyer. Children suffer the most in high conflict divorces and it can be extremely helpful in some of those cases for them to have a voice in the process. This fact is especially true for teenagers. If they want to be heard and are given that opportunity, the court may be better able to fashion the right parenting plan and the children may sign more readily if they feel their preferences have been considered.”
Taking an ARC case can be a challenging and rewarding experience. Consider taking a case. To do so, attend the ARC training and you can get started.
1Source: Child Welfare . Mar/Apr2005, Vol. 84 Issue 2, p191-208. 18p.
Brian McLaughlin Jr. is the owner and sole proprietor of Brian McLaughlin LLC. His practice focuses heavily on family law, including divorce, paternity and child support. In addition to family law, Mr. McLaughlin regularly takes unemployment benefits and special needs education cases. Mr. McLaughlin is committed to pro bono work and has successfully resolved cases for both the Volunteer Lawyers Project and Women’s Bar Foundation. He believes in the importance for quality legal representation for all and regularly serves as the Volunteer Lawyer of the Day at the Suffolk Probate and Family Court. Mr. McLaughlin currently serves on the Family Law and Pro Bono Steering Committees at the Boston Bar Association and holds the position of Civil Rights Liaison to the New Lawyers Section.
Brian is a graduate of Boston College, magna cum laude and Boston College Law School. His article Not Your Average First Year appeared in the July 2011 edition of the Massachusetts Lawyers Journal.