By Amanda Driscoll, Law Clerk*
Some of the most significant issues in Massachusetts Family and Probate Courts are those involving unemancipated children. The court has jurisdiction over those children pursuant to Massachusetts General Laws, Chapter 208, Sections 19, 28, 28A, 29, 30, 31 and 31A. In 2013, a program called Attorneys Representing Children (ARC) started in Massachusetts which an attorney voluntarily represents the child’s interest in a divorce case or other probate matter.
In determining the outcome of these cases, the court must consider what is in the best interest of the child. Accordingly, a child’s preference is one piece that may be helpful to the court for this determination. There is a wide variety of other resources available to the court in identifying the child’s desires and interests.
Sources of information provided by the child’s parents, teachers, or other third parties may be introduced as evidence at the trial or hearing to help the court make a decision that genuinely is in the child’s best interest. In addition, a guardian ad litem, or “GAL” may be appointed to perform an investigation or evaluation of the child’s home and family, and render a report to the court, pursuant to Massachusetts General Laws, Chapter 215, Section 56A and Massachusetts General Laws, Chapter 208, Section 16. The GAL’s report may also be introduced into evidence and the GAL may be cross-examined at the time of the trial or hearing.
Although these methods of gathering information are quite helpful to the court in making a decision that is in the best interest of the child, they also have some down sides. For example, parents that are in the midst of divorce, modification, or removal proceedings might be too fixated on the litigation to have a clear understanding of the child’s interests. In turn, counsel for the parents are more likely to be focused on the position of their client, rather than those of the child. In addition, third parties who also have a close connection with the child, such as teachers or therapists, may not have discussed the topic with the child, and may feel uncomfortable getting involved. Furthermore, one needs another Guardian Ad Litem on privilege if a child’s therapists may be called to testify to waive or assert the child’s privilege. A therapist may also decline a court appearance for fear of damaging the therapeutic relationship he or she has with the child.
As a result of the costs of GAL appointments, several counties in Massachusetts have developed ARC programs in order to provide legal representation for children individually. The ARC program does not pertain to court matters such as involving abuse or neglect where the Department of Children and Families (DCF) is involved. Some attorneys have volunteered to participate in the ARC program to help children. The ARC attorney’s job is to act as the child’s voice in the court. Similar pro bono programs are now currently in operation in Massachusetts in the Probate and Family Courts of Bristol, Middlesex, Norfolk, and Plymouth Counties. Attorneys willing to volunteer their time for the ARC program are placed on a list of panel counsel, and are court assigned cases in which DCF is not involved, on an as-needed basis. Based on the time commitment of this involvement and expenses incurred, counsel are not expected to take on more than one ARC case per year. The appointment of an ARC attorney in representation of a child in divorce or probate matter enhances the potential of an early settlement. Alternatively, an ARC attorney will help the court in advocating for the child, along with other sources provided, so the the judge hearing the case has enough information to make the best possible ruling for the case.
*Amanda Driscoll graduated from Suffolk University in May 2013 with a major in public administration and a minor in business law. While at Suffolk University, Ms. Driscoll was in the Griffin Honor Society, the Secretary of the Suffolk University Environmental Club and an Eco Ambassador of Suffolk University Sustainability. She currently attends Mass. College of Law in Andover, Massachusetts, where she expects to graduate with a juris doctor degree in 2018 and Suffolk University in public administration, where she expects to obtain her masters degree in public administration in 2017. Ms. Driscoll received a CALI Award for the highest grade achievement in the study of Writing and Legal Research in June 2016.