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The Legal System
 
Children and their families become involved in the legal system in various ways resulting in various types of legal proceedings. It is important to distinguish the various types of proceedings or legal forums involving children.
 
Child Protective Proceedings
 
 Child Protective Proceedings, sometimes called child maltreatment or abuse, neglect and dependency proceedings, are civil cases brought by a state or local government agency to protect an alleged abused, neglected or dependent child. The participants in the case may include the child, the parents or other caretakers, foster parents, and state officials. The purpose of the proceedings is to determine whether the child is abused or neglected, and if so, what action should be taken. Operating with "best interests" and "family preservation" as guideposts, the process involves five stages: preliminary, adjudication, disposition, termination and adoption. Cases begin with the filing of a petition alleging a child is dependent. A preliminary hearing is held (quickly if the child has been removed) in order to determine safety, custody and visitation issues pending further proceedings. Reasonable efforts to avoid removal and the provision of family preservation services should become issues at the preliminary hearing and throughout the process.
 
Many cases are dismissed or settled without further proceedings. Otherwise, an adjudicatory hearing is held to determine whether the child is dependent based on the abuse or neglect allegations of the petition. The adjudication hearing resembles a traditional trial under rules of civil procedure and evidence. States bear the burden of proving dependency generally by a preponderance of the evidence standard. If the state fails to meet its burden, the case is dismissed and the caretakers regain full control of the child. If an adjudication is made, the court typically issues orders calling for further investigation, evaluations and treatment.
 
A dispositional hearing is generally held within a short time of the adjudication in order to implement a course of action designed to serve the child while preserving the family if possible. The state agency's case plan (including placement and services) or some version of it is typically adopted at this time. A child may be home or in a group, foster or kinship care placement at this time. The period following disposition is often lengthy and the court should hold periodic review hearings. The dispositional process may conclude with successful completion of the case plan, dismissal of the case and return of the child home. Other disposition options include long term foster or kinship care, continued supervision of the family with the child in the family's care or custody to the state.
 
If the family cannot be preserved, the case moves to a termination of parental rights hearing where the state must prove parental unfitness by no less than clear and convincing evidence. Termination proceedings are to be followed by adoption proceedings.
 
Children who are the subjects of child protection proceedings are entitled to a representative to protect their best interests. The majority of U.S. jurisdictions appoint an attorney to serve as a guardian ad litem.
  • NACC policy on representation of children in abuse and neglect cases
  • State-by-state information about representation of children in child abuse and neglect cases
Delinquency Proceedings
 
The Juvenile Delinquency Court is a forum designed to determine whether a minor has violated the law, and if so, what action should be taken. The Delinquency Courts began at the start of the 20th century and had at their foundation, the philosophy that while minors should be held accountable for their offenses, they should not be treated as adult criminals, and should be provided rehabilitation over punishment. In Delinquency Court, a child is adjudicated delinquent, rather than found guilty, and is given a disposition, rather than a sentence. The phases of a delinquency case are typically, arrest, jurisdictional hearings, detention, pretrial motions / suppression hearings, adjudication, and disposition. Juvenile are entitled to legal counsel and are sometimes also provided a guardian ad litem.
 
Private Custody, Visitation and Support Proceedings
 
These are typically divorce or post divorce proceedings where custody, visitation or child support is at issue. Children are not traditionally considered parties to these proceedings but courts are instructed to make decisions based on children's best interests. Many states provide that that children's wishes should be considered by the court. A number of states also allow for the appointment of an attorney or other representative for the child.
 
  • NACC policy on appointment of attorneys for children in private custody cases
Domestic Violence Proceedings
 
Children are frequently caught in the crossfire of adult domestic violence. There is growing recognition that children are victimized by witnessing domestic violence. These proceedings may exist as part of private custody cases and children may be witnesses. Legal counsel or some other advocate is sometimes appointed for children in these cases. See The Impact of Domestic Violence on Children: A Report to the President of the American Bar Association (1994).
 
Criminal Prosecution of Child Abuse
 
The criminal prosecution of adults for crimes against children. Child victims are frequently called to testify in such cases and may be appointed a guardian ad litem for protection and advice. See Guardians Ad Litem in the Criminal Courts, U.S. Department of Justice, National Institute for Justice (1988).
 
Civil Damages Litigation
 
Children do not have legal standing to sue and be sued in the same way as adults. Children can be a part of civil litigation (for a personal injury for example) through a Guardian or Next Friend. The Guardian or Next Friend is then represented by legal counsel.
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National Association of Counsel for Children | 13123 E. 16th Avenue, B390 | Aurora, CO 80045 | 1-888-828-NACC | advocate@naccchildlaw.org