Experienced Texas Amicus Attorney

Experienced 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 Group can help you navigate the amicus attorney process, and have frequently served as amicus attorneys in Texas 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?

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 in Texas 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 investigation necessary to determine the child’s best interest.
  • While an amicus attorney often considers the desires of the child, they are not required to advocate for those desires if they believes the desires would not be in the best interests of the child.
  • It is important to remember that the amicus attorney does not have an attorney-client relationship with the child, as they provide legal services to the court, not the child.

Duties of an Amicus Attorney in Texas

The Family Code outlines the powers and duties of an amicus attorney in Texas. 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.
  • Interviewing the parties to the suit.
  • Seeking to elicit in a developmentally appropriate manner the child’s expressed objectives of representation.
  • Considering the impact on the child in formulating the attorney’s presentation of the child’s expressed objectives of representation to the court.
  • Investigating the facts of the case to the extent the attorney considers appropriate.
  • Obtaining and reviewing 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.
  • Participating in the conduct of the litigation.
  • Taking any action consistent with the child’s interests that the attorney considers necessary to expedite the proceedings.
  • Encouraging settlement and the use of alternative forms of dispute resolution.
  • Reviewing and signing, or decline to sign, a proposed or agreed order affecting the child.

When did the Role of the Amicus Attorney Begin in Texas?

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 will be an Attorney Ad Litem or an Amicus Attorney.

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 in Texas must be an attorney trained in child advocacy or an attorney determined by the court to have experience equivalent to that training. Attorneys 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 Attorney Differ from an Attorney Ad Litem and a Guardian Ad Litem?

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

Amicus Attorney

An amicus attorney in Texas 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
  • An attorney ad litem appointed to serve in the dual role.

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.

How to Know if You Need an Amicus Attorney in Texas?

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 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 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 in Texas Possess?

As an amicus, you can:

  • 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.
  • 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 an amicus attorney in Texas 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.
  • Become familiar with the American Bar Association’s standards of practice for attorneys who represent children in custody cases.

What Steps Should Parents Take After an Amicus has Been Appointed?

It is often helpful to compile an amicus binder after an attorney has been appointed to your case. The purpose of an amicus binder is to allow the 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.

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?

The depth of which the amicus goes into a case in order to assist the court will vary from attorney to attorney. Being the eyes and ears for the court, it is the amicus whose voice is heard regarding what is in the best interest of the child.

In addition to scheduled home visits, attorneys sometimes also request the cooperation of the parents in providing additional information. When the attorneys of the Ramos Law Group serve as amicus attorneys in Texas, they always take the extra step and complete the following tasks. Be prepared for your amicus to do the same.

Some of the extra things the attorneys of the Ramos Law Group 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 they can record all important events.
  • Request completion of questionnaires which includes witness lists, names of the children’s schools, medical records, etc. for the amicus to review.
  • Request signatures regarding:
    • Medical release.
    • School release.
    • Attorney release to communicate with clients.
  • Provide each party with language dealing with child care options that address:
    • Phone access.
    • Email access.
    • Summer camp.
    • College.
    • Right of 1st refusal.
    • Proposed holidays.
    • Payment of extra-curricular activities.
    • Moral injunctions.
    • Minimizing exposure to harmful parental conflict.

An Amicus Attorney is a Phone Call Away…

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

For more information, please call 713-597-7295.

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