Colorado Supreme Court removes attorney-client confidentiality from children in some cases Ruling splits kid advocates

By Karen Auge
The Denver Post
POSTED: 11/03/2011 01:00:00 AM MDT
UPDATED: 11/03/2011 08:30:34 AM MDT

In a decision that child advocates are calling landmark, the Colorado Supreme Court has ruled that conversations between children and the attorneys who represent them in custody and neglect cases are not protected by attorney-client privilege.

The decision, which stems from a 2005 case involving alleged sexual assault on a child, has divided normally unified children's advocates.

Some say the ruling will erode the crucial trust between a child and a guardian ad litem. Others argue that the decision confirms that the attorneys' duty is to do what's best for the child, even if the child doesn't agree.

"I think where we come down on this is disappointed," said Stephanie Villafuerte, executive director of the Rocky Mountain Children's Law Center, which represents children, primarily those in foster care.

Villafuerte said she feared the ruling would have a "chilling effect" on what troubled and abused kids — many of whom already have had their trust betrayed by adults — will confide in their attorneys.

"Kids are going to be mortified," she said.

But Linda Weinerman, executive director of the Office of the Child's Representative, a state agency that contracts with the state's 234 guardians ad litem, said the Oct. 24 ruling affirms the approach her office has used throughout its 11 years.

Weinerman said that as a guardian ad litem, her approach was, "I'd tell kids I'm representing you and I will not tell things you don't want me to tell unless I think they are things that will affect your safety. My job is to protect your safety."

In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected, or is in foster care. In some instances, they are appointed for kids who have been accused of crimes or are at the center of a custody fight.

FULL STORY: http://www.denverpost.com/news/ci_19252776

"The best interests test has long been the subject of academic as well as judicial criticism for being indeterminate, providing little guidance on how to weigh the different needs of individual children, especially as they change over time"; Robert H. Mnookin, Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Probs., 226, 257 (Summer 1975).

"Best interests operates as an empty vessel into which adult perceptions and prejudices are poured." --Hillary Rodham, Children Under the Law, 43 Harv. Ed. Rev. 487, 513 (1973).