Children have rights when their parents separate. Can children give their opinions by having a lawyer represent them in a conflict between their parents?
Situations in Which a Child Can Have a Lawyer
A child can be represented by a lawyer in any of these situations:
- The parents are so busy with their own issues that they are not aware of what the child wants and needs, or they cannot impartially decide what is best for the child.
- A representative is needed to protect the child's interests.
- The child is old enough and mature enough, and wants to give an opinion to the judge. It is in in the child's best interests to be involved and to have a lawyer.
Who Decides a Child Will Have a Lawyer
- Judges can appoint a lawyer if they think this is necessary to protect the child's interests. Judges can do this on the request of one of the parents or on their own.
- Children can decide on their own that they need a lawyer. A lawyer will intervene in the parents' conflict on behalf of the child.
Real Case: Child Represented by a Lawyer
A judge awarded custody of a child to the mother. After some time had passed, the father went to court to ask for a change to the custody arrangement because the child now wanted to live with him. The father decided to keep the child with him, even before the court hearing was held. The mother wanted the child returned to her.
The judge returned the child to the mother. He noticed that the child was upset and appointed a lawyer for her. The lawyer's job was to clearly express the child's wishes to the court. The judge wanted the child to talk to the lawyer about what exactly was upsetting her. The lawyer was appointed to act on the child's behalf, independently from the parents.
When a Parent Does Not Want the Child to Have a Lawyer
One of the parents may not want a child to have a lawyer. These are some of the reasons parents give:
- The child does not need a lawyer.
- The child's request for a lawyer is not really coming from the child but from the other parent, who is manipulating the child.
- The child is very young, and there is a better way to protect the child's interests.
In these circumstances, a judge will decide whether or not the child needs a lawyer.
Real Case: Judge Decides Children Did Not Need Lawyer
The mother and father were arguing over the custody of their children, ages 11 and 13. The children wanted to live with their father, not with their mother. The mother said the father was to blame for this. Three expert evaluations were carried out, and they agreed with what the mother said. The father wanted a lawyer to represent the children and asked the judge to allow it.
The judge held that the children's preference toward their father was recorded in the expert reports. The mother also admitted that the children wanted to live with their father. The judge did not see the use of appointing a lawyer to represent the children.
Role of a Child's Lawyer
If the Child Is Old Enough and Mature Enough
A child's lawyer must act the same as towards an adult client. Therefore, the child has the right to expect the lawyer to
- give advice,
- explain the possible consequences of various options,
- discuss potential solutions,
- respect the terms of the mandate (assignment) the child gave the lawyer,
- represent the child in court and explain what the child wants, and
- respect the duty to keep information confidential.
Lawyers acting for children must explain the child's opinion to the judge and not give their own opinions. This is true even if the child is being influenced by the parents.
If the Child Is Young or Immature
The role of lawyers who represent young or immature children is unclear. In these situations, lawyers must
- stay independent from the parents,
- independently gather any information that could help the judge understand the child's situation,
- make sure the child's rights are respected,
- present any evidence or bring to light any element that could help the judge decide what is in the best interests of the child,
- make the child's views known, if the child expresses a point of view, and
- express their own conclusions as lawyers in an objective way.
Paying the Child's Lawyer
Who pays for the child's lawyer?
This depends on the situation. Usually, there are three choices:
- one or both parents pay
- legal aid pay
- legal aid pays and then asks the parents to pay back the fees
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.