Misconceptions vs. Truths
Prepared by Advocates for
Children's Services
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Misconceptions |
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Truths |
Misconception: Arguing that a child has a right
to be heard means that the child has a right to decide the matter.
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Truth: Regardless of what wishes the child expresses, the judge,
consistent with rules of procedure and evidence, weighs all of the
information presented and makes the decision.
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Misconception: Recognizing children’s right to be
heard will open a floodgate of lawsuits challenging the basic rights of
parents to raise their children as they choose.
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Truth: Children’s rights are not unbounded. Protective rights are
those that give the child the right to be heard in matters of abuse,
neglect, abandonment, and custody. Parental rights are the basic rights
of parents to raise children as they choose. Frivolous suits over
parental rights issues like bedtime or chore assignments can be
immediately dismissed by a judge, and, if appropriate, the attorney
bringing the suit can be sanctioned.
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Misconception: Children are, by legal definition,
incompetent and lack capacity to even request to be heard.
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Truth: This common law concept was intended to protect children
from being taken advantage of, not to be used against them to keep them
from being heard in matters that significantly affect them.
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Misconception: It would be irresponsible for an
attorney to argue the child’s expressed interest, if what the child
wants would be clearly detrimental to him.
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Truth: In any attorney/client relationship, the attorney owes the
client undivided loyalty, confidentiality, and competent representation.
These conditions cannot be compromised in cases involving children. As
with any adult client, however, a child’s attorney may counsel his
client against a particular action. Ultimately, though, faith must be
placed in the judge to make a sound ruling based on all the evidence
presented.
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Misconception: Children’s wishes are represented
by Guardians ad Litem (GAL).
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Truth: According to the ABA Standards, a GAL is
defined as “ . . . an officer of the court appointed to protect the
child’s interest without being bound by the child’s expressed
preferences.” In other words, GALs are not required to take a child’s
expressed wishes to a judge.
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Misconception: Children are too young to know
what’s best, and, therefore, shouldn’t be heard.
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Truth: In matters concerning abuse, neglect,
abandonment, and custody, the child is the party with the most to gain
or lose. Therefore, it is unfair to deny a child the right to be heard
on such fundamental issues. The judge, of course, retains the right to
decide the issues after hearing from all parties.
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Prepared by Advocates for Children’s
Services
201 West Main Street, Suite 400, Durham, NC 27702
919-226-0051
E-mail: ACSinfo@legalaidnc.org ยท
Website: www.legalaidnc.org
ADVOCATES FOR CHILDREN'S SERVICES
Fighting for the Rights of Children:
Health Care * Education * Safe & Permanent Families
Disclaimer
The materials contained on this website are for information and educational
purposes only and do not constitute legal advice. Please contact your
Legal Aid of North Carolina office or a private attorney if you need to speak to
an attorney regarding your particular situation. See our complete
disclaimer.
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Legal Aid of North Carolina is a statewide, nonprofit law firm that
provides free legal services in civil matters to low-income people in
order to ensure equal access to justice and to remove legal barriers
to economic opportunity.