Amicus Attorney in Houston Texas

amicus attorney

In contested custody cases, judges in Harris County and the surrounding areas frequently appoint an amicus attorney in Texas to represent the best interests of the child. The attorneys of the Ramos Law Firm can help you navigate the amicus attorney process, and have frequently served as amicus attorneys at the request of the court. The recommendation of the amicus attorney is often a pivotal factor in the Court's final determination of custody.

What is an Amicus Attorney?

Definition

  • According to §107.001 of the Texas Family Code, an amicus attorney is an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child. An amicus attorney in Texas is essential in a contested custody case.

Role of the Amicus

  • The amicus attorney is often described as being the eyes and ears for the court and goes where the court cannot in determining the best interest of the child. The amicus can visit the homes of the parties, interview the parents, interview the child, look at school records, meet neighbors and conduct any type of investigation necessary to determine the child's best interest.
  • While an amicus attorney often considers the desires of the child, the amicus attorney is not required to advocate for those desires if the amicus attorney believes the desires would not be in the best interests of the child. It is important to know that the amicus attorney does not have an attorney-client relationship with the child, as the amicus attorney provides legal services to the court, not the child.

Duties of an Amicus Attorney

The Family Code outlines the powers and duties of an Amicus Attorney. These duties include:

  • Interviewing the child in a developmentally appropriate manner, if the child is four years of age or older;
  • Interviewing each person who has significant knowledge of the child’s history and condition, including any foster parent of the child, falls under the jurisdiction of the amicus attorney;
  • Interviewing the parties to the suit;
  • Seek to elicit in a developmentally appropriate manner the child's expressed objectives of representation;
  • Consider the impact on the child in formulating the attorney's presentation of the child's expressed objectives of representation to the court;
  • Investigate the facts of the case to the extent the attorney considers appropriate;
  • Obtain and review copies of relevant records relating to the child such as social records, law enforcement records, school records, medical, mental health or drug or alcohol treatment records;
  • Participate in the conduct of the litigation; an amicus attorney will take part to the same extent as an attorney for a party;
  • Take any action consistent with the child's interests that the attorney considers necessary to expedite the proceedings;
  • Encourage settlement and the use of alternative forms of dispute resolution; and
  • Review and sign, or decline to sign, a proposed or agreed order affecting the child.

When did the role of the amicus attorney begin?

  • On September 1, 2003, the powers and duties of attorneys and non-attorneys appointed in Children's Protective Services (CPS) cases and in private custody disputes were clarified. As it stands, lawyers will no longer be appointed with the title of Guardian Ad Litem, but rather will be either an Attorney Ad Litem or an Amicus Attorney.
  • In short, since 2003 the Courts have the ability to decide whether the function of an appointed lawyer in custody cases is to assist the court in determining what is in the child's best interest, or to represent the child in an attorney-client relationship. In the Houston area courts most frequently choose to appoint amicus, rather than ad litem attorneys. In suits brought by a private individual, where the court appoints an amicus attorney, the court cannot appoint an attorney ad litem.
  • What are the qualifications of the court appointed amicus attorney?

    An amicus attorney must be an attorney trained in child advocacy or an attorney determined by the court to have experience equivalent to that training. Attorney's employed by the Title IV-D agency (such as the attorney general's office) cannot be appointed or act as an amicus attorney.

    How does an amicus attorney differ from an attorney ad-litem and a guardian ad litem?

    Definitions

    In order to see the differences between the three, let’s look at their definitions:

    Amicus Attorney

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    As mentioned above, an amicus attorney may be appointed by the courts in suits brought on by private individuals to assist the court in protecting the child’s best interests—not to provide legal services to the child.

    Attorney ad litem

    An attorney ad litem is an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.

    Guardian ad litem

    A guardian ad litem is a person appointed to represent the best interest of a child. The term includes:

    • a volunteer advocate;
    • a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child’s best interests;
    • an adult having the competence, training, and expertise determined by the court to be sufficient to represent the best interest of the child;
    • or an attorney ad litem appointed to serve in the dual role.

    As you can see, the difference between an amicus attorney and an attorney ad litem is that the amicus attorney is an attorney appointed by the court in suits brought on by private individuals whose single role is to provide the court with assistance in protecting the child’s best interests. This does away with having an attorney ad litem serve dual roles.

    How to know if you need an amicus attorney?

    In private suits that affect the parent-child relationship, an amicus may be appointed at any time, usually at the discretion of the court. A court can appoint an amicus attorney by the





    judge’s own motion, or a party may formally request the appointment of an amicus attorney through a motion presented to the court. If the court feels that it needs assistance in protecting the child’s best interests, then an amicus attorney will be appointed.

    Once an amicus attorney is appointed by the court, an attorney ad litem cannot be appointed. On the other hand, if an attorney ad litem is appointed in a private suit that affects the parent-child relationship, an amicus attorney cannot be appointed. Please note that if the suit is filed by a governmental entity, an amicus attorney will not be needed nor appointed, since the court may not appoint a person to serve as an amicus attorney in a suit filed by a governmental entity.

    Once an amicus attorney is appointed by the court, an attorney ad litem cannot be appointed. On the other hand, if an attorney ad litem is appointed in a private suit that affects the parent-child relationship, an amicus attorney cannot be appointed. Please note that if the suit is filed by a governmental entity, an amicus attorney will not be needed nor appointed, since the court may not appoint a person to serve as an amicus attorney in a suit filed by a governmental entity.

    If an amicus attorney is needed, who pays?

    The current provisions of the Family Code, chapter 107 clearly states that a county may not pay for the services of an amicus attorney in a private suit affecting the parent-child relationship filed on or after September 1, 2003, regardless of the parties’ indigence. Therefore, in private suits affecting the parent-child relationship, the fees of the amicus attorney are normally shared 50/50 between the parties, unless otherwise agreed. In some cases, judges apportion the fees of the amicus attorney based on the income of the parties.

    What powers does an amicus attorney possess?

    As an amicus attorney, one would be able to:

    • Request clarification from the court if the role of the attorney is ambiguous;
    • Request a hearing or trial on the merits;
    • Consent or refuse to consent to an interview of the child by another attorney;
    • Receive a copy of each pleading or other paper filed with the court;
    • Receive notice of each hearing in the suit;
    • Participate in any case staffing concerning the child conducted by an authorized agency; and
    • Attend all legal proceedings in the suit.

    How the Amicus Attorney ADVOCATes THE BEST INTERESTS OF THE CHILD

    In determining the best interests of the child, it is important to know that the amicus attorney is not bound by the child's expressed objectives of representation. Rather, the amicus attorney shall, in a developmentally appropriate manner:

    • With the consent of the child, ensure that the child’s expressed objectives of representation are made known to the court;
    • Explain the role of the amicus attorney to the child;
    • Inform the child that the amicus attorney may use information that the child provides in providing assistance to the court; and
    • Become familiar with the American Bar Association’s standards of practice for attorneys who represent children in custody cases.

    WHAT STEPS SHOULD PARTENTS TAKE AFTER AN AMICUS Attorney HAS BEEN APPOINTED?

    It is often helpful to compile an amicus binder after an amicus attorney has been appointed to your case. The purpose of an amicus binder is to allow the amicus attorney to really get to know the child and see the case from your perspective. Home visits and interviews may run smoother if the amicus knows a little about the child prior to their first meeting.

    An amicus binder can include just about anything that you believe will assist the amicus attorney in having a better feel of the child. It is often helpful to include the following items:

    • Detailed questionnaire regarding the parents and the child
    • Child’s school records (report cards, awards)
    • Parent’s journal
    • Parent’s concerns
    • Parent’s calendar
    • The story of the marriage
    • The story of the child (likes/dislikes, favorite food, toys, hobbies, etc.)
    • Photographs of the child and family

    ADDITIONAL DUTIES PERFORMED BY THE AMICUS Attorney

    In addition to the duties outlined above, the depth of which the amicus attorney goes into in order to assist the court in determining the best interests of the child will vary from attorney to attorney. As mentioned above, being the eyes and ears for the court, it is the amicus attorney whose voice is heard regarding what is in the best interest of the child. With that being said, in addition to scheduled home visits, amicus attorneys sometimes also request the cooperation of the parents in providing additional information. When the attorneys of the Ramos Law Firm serve as amicus attorneys, they always take the extra step and complete the following tasks. Be prepared for your amicus attorney to do the same.

    Here is a snapshot of some of the extra things the attorneys of the Ramos Law Firm do when appointed as the amicus:

    • Complete a background check for both parties, including any and all persons staying at their residence;
    • TDL, criminal history check, and sexual pedophile check for each party’s zip code;
    • HCAD search for each of the residences to see if there are any problems with asbestos, or lead-based paint (according to the year built);
    • Provide each party with a blank calendar so that each party can record all important events;
    • Request completion of my questionnaire which includes witness lists, names of the children’ s schools, medical records, etc. for the amicus attorney to review;
    • Provide each party with language dealing with child care options that address:
      • phone access;
      • e-mail access;
      • summer camp;
      • college;
      • right of 1st refusal;
      • proposed holidays;
      • payment of extra-curricular activities;
      • moral injunctions; and
      • minimizing exposure to harmful parental conflict
    • Request the parties’ signature regarding:
      • Medical release
      • School release
      • Attorney release to communicate with clients

    An amicus attorney is simply a phone call away

    Whether you are interested in understanding more about the amicus attorney’s role or are currently seeking the services of an amicus attorney in Texas, the Ramos Law Firm can assist you with all your amicus needs.

    For more information, please call 713-225-6200.

    Source: www.ramosfamilylaw.com

    Category: Attorney

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