Can my ex wife’s lawyer talk to my child about our child custody case?

by | Jan 22, 2021 | Ask the Lawyer, Child Custody & Support | 0 comments

Question asked on Aug. 30, 2020

Q: My daughter canes back from her mother’s house angry with me for what seemed like no reason, and in trying to figure out what was wrong, I found out that my child talked to her mother’s lawyer and the lawyer told her that she gets to decide where she lives because she’s 13 and that I’m blocking that. I know that the desire of the child is taken into consideration, but my daughter is emotionally immature and significantly behind in her education, and her reasoning for wishing to live with her mom is because she doesn’t have to school or homework there. My understanding is that the will of the child is one factor in a list of things considered. Is it ethical for her lawyer to have discussed this with my child, or spoken to her about the case at all?

A: Short answer: “no.”  The relevant ethics code (The Nevada Rules of Professional Conduct) are not directly on point, but generally a lawyer should not contact a minor child; the point is clarified in the non-binding, but authoritative “Bounds of Advocacy” published by the American Academy of Matrimonial Lawyers.  Bound 6.3 states: “When issues in a representation affect the welfare of a minor child, an attorney should not initiate communication with the child, except in the presence of the child’s lawyer or guardian ad litem, with court permission, or as necessary to verify facts in motions and pleadings.”

The official comments add: “Issues affecting a child’s welfare may arise before, during, and after legal proceedings.  There is a risk of harm to the child from an attorney’s contacts and attempts to involve the child in the proceedings.  Advice to or manipulation of the child by a parent’s lawyer has no place in the lawyer’s efforts on behalf of the parent.  Information properly to be obtained from a child regarding the parents and the parents’ disputes should be obtained under circumstances that protect the child’s best interests.”
In Nevada, there is no “magic age.”  The views of a child of “sufficient age and capacity to form an intelligent preference as to his or her physical custody” is one of many factors; a list of the custodial factors, and an explanation, is posted here.
You should probably discuss the entire situation with an experienced family law specialist, to determine what you should say, and what you should do.

Frequently Asked Questions

Can my ex's lawyer talk to my child about our custody case?
Generally no. The Nevada Rules of Professional Conduct are not directly on point, but the American Academy of Matrimonial Lawyers’ Bounds of Advocacy, which Nevada family courts treat as authoritative, state that when issues affect a minor child’s welfare, a parent’s attorney should not initiate communication with the child except in the presence of the child’s own lawyer or guardian ad litem, with court permission, or as necessary to verify facts in motions and pleadings. Telling a child she gets to decide where she lives is not within those exceptions.
At what age can a child decide which parent to live with in Nevada?
There is no magic age in Nevada. The wish of a child who is of sufficient age and capacity to form an intelligent preference about physical custody is one of many best-interest factors a judge must weigh, but it is not controlling at 13 or any other age (NRS 125C.0035). A court will also look at the reason behind the preference; a wish to live where there is no school or homework carries little weight against the child’s educational and emotional needs.
Why shouldn't a parent's attorney involve a child in the custody case?
Because it can harm the child. The official comments to the Bounds of Advocacy explain that there is a risk of harm to the child from an attorney’s contacts and attempts to involve the child in the proceedings, and that advice to or manipulation of the child by a parent’s lawyer has no place in that lawyer’s work. Any information that properly needs to come from a child about the parents’ dispute should be gathered under circumstances that protect the child’s best interests.
What should I do if the other parent's attorney contacted my child?
Discuss the entire situation with an experienced Nevada family law specialist before you say or do anything, including before you raise it with your ex or the child. The contact may be relevant to the custody case itself and to how the child’s stated preference is weighed, and the right response depends on what was actually said and whether a child’s attorney or guardian ad litem should be requested. Willick Law Group can review your situation in a consultation.
Marshal S. Willick
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