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The C hild's A ttorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity
Author(s) -
Rosen Jamie
Publication year - 2013
Publication title -
family court review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.171
H-Index - 4
eISSN - 1744-1617
pISSN - 1531-2445
DOI - 10.1111/fcre.12030
Subject(s) - dilemma , representation (politics) , psychology , preference , child custody , remedial education , social psychology , alienation , law , criminology , political science , epistemology , philosophy , mathematics education , politics , economics , microeconomics
Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client‐centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client‐directed model of representation is not adequate. This Note proposes that the C hild's A ttorney must determine whether the child is of diminished capacity under the M odel R ules of P rofessional C onduct and, if so, must treat the client accordingly under R ule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.