Amicus Attorney

The judge will sometimes appoint an independent attorney called an amicus attorney to represent the child (or children) in contested custody cases. This seldom happens in Galveston County, but in Brazoria and Harris County it is quite common for the judges to appoint amicus attorneys. The parents typically split the cost of the amicus attorney, but sometimes a parent agrees to pay 100% of the cost, or one parent is ordered to pay more than 50% because of income differences.

The amicus attorney meets with the children, talks to the parents, teachers and counselors, and usually visits the children in their respective homes. Both sides will try to persuade the amicus that they are the more suitable parent by providing evidence such as recordings, school records, medical records, and other documentation.

Since the amicus attorney is acting as a lawyer for the children, he or she cannot talk to the judge without the other lawyers being present. The amicus is also able to question witnesses and present evidence in court in the same way that the parents' attorneys can. The parents' attorneys may agree on who the amicus attorney should be, or the judge may select this lawyer.

Texas law now says that the amicus attorney cannot "offer an opinion regarding conservatorship or possession of or access to a child subject to a suit." Tex. Family Code Sec. 107.027(1). However, an experienced amicus attorney can influence settlement and can ask questions of witnesses in a way that communicates to the judge what the amicus believes is best for the children. The amicus attorney can present evidence and ask questions about parental behaviors and the children's wishes that make it clear what the amicus wants to see happen. Judges are typically familiar with the lawyers who serve as amicus attorneys and know the amicus is able to do many things the judge cannot — like visit the home — so judges will often follow what they perceive to be the recommendations of the amicus attorney.

Key Points About the Amicus Attorney

Attorney Greg Enos usually makes these points with his clients about the amicus attorney:

• Treat the amicus attorney with the same respect you would show the judge. The amicus has significant influence over the outcome of your case.
• Be cooperative, honest, and organized when meeting with the amicus. Have relevant records — school reports, medical records, photographs — ready to share.
• Focus on what is best for your child rather than attacking the other parent. Present your strengths as a parent.
• The amicus attorney is not your lawyer and is not your enemy. His or her job is to advocate for the best interests of the child.
• Anything you tell the amicus may be reported to the court. There is no confidentiality between a parent and the amicus attorney.
• Allow the amicus reasonable access to your home. A home visit is standard and refusing looks suspicious to the judge.
• Do not coach your children on what to say to the amicus. Children who are clearly coached lose credibility with both the amicus and the court.

The amicus attorney's report and recommendations carry considerable weight in settlement negotiations and at trial. Working constructively with the amicus attorney — rather than against him or her — is almost always the better strategy for any parent who genuinely has the child's best interest at heart.