Attorney Ad Litem vs. Amicus Attorney in Texas Custody Cases

If your custody case in Seguin gets heated, the judge may appoint someone whose job is to focus on your child. That person might be called an attorney ad litem, an amicus attorney, or a guardian ad litem. The titles sound alike, but the roles are different, and the difference matters for how you talk to that person and what you can expect from them.

This article explains each role under Chapter 107 of the Texas Family Code, when courts tend to appoint them, and how the fees are usually handled.

Why a court appoints someone for the child

In a custody case (Texas calls it a suit affecting the parent-child relationship), the parents each have their own lawyer, or represent themselves. Each side presents what it believes is best. The judge, though, has to decide what is in the child's best interest, and sometimes the parents' evidence doesn't give the full picture. A court-appointed representative can investigate, talk to the child, and give the court information it might not otherwise get.

Appointments are more common when:

• There are allegations of abuse, neglect, family violence or drug use.
• The parents strongly disagree about where the child should live.
• The child is old enough to have opinions and may be caught in the middle.
• One or both parents are not represented by a lawyer.
• The case involves a child with special medical, educational or emotional needs.

In a private custody case (a divorce or modification between parents), the appointment is usually up to the judge. In a case filed by the state, such as a CPS case, the court is required to appoint representation for the child. If you're dealing with CPS, see our article on CPS cases in Guadalupe County.

Amicus attorney

An amicus attorney is a lawyer appointed to assist the court in protecting the child's best interest. The amicus does not represent the child as a client. That has a few practical effects:

• The amicus is not bound by the child's wishes. If your 10-year-old wants to live with the parent who has no bedtime, the amicus can tell the court that this isn't in the child's best interest.
• The amicus does not owe the child the same confidentiality a regular lawyer owes a client. What the child says may be shared with the court if the amicus thinks it's important.
• The amicus typically interviews the parents and child, visits homes, reviews school and medical records, and may talk to teachers, counselors and other people involved in the child's life.
• The amicus participates in the case, including at hearings and trial, and can question witnesses and make recommendations.

In Texas private custody cases, an amicus attorney is the most common type of appointment, because the judge usually wants an independent view of what's best rather than an advocate for the child's stated preferences.

Attorney ad litem

An attorney ad litem is a lawyer who represents the child as a client. The child gets a lawyer the same way each parent has a lawyer. That means:

• The attorney ad litem owes the child loyalty, confidentiality and competent representation.
• The attorney generally advocates for what the child wants, as long as the child is able to give meaningful direction. If the child is very young or can't make reasoned decisions, the attorney's approach changes.
• The attorney ad litem doesn't simply report everything the child says to the judge.

Attorneys ad litem are appointed more often for older children, children with strong and reasoned views, and in state-filed cases such as CPS cases.

Guardian ad litem

A guardian ad litem represents the child's best interest, but doesn't have to be a lawyer. The court can appoint a volunteer advocate (for example, a CASA volunteer in CPS cases), a mental health professional, or another qualified person. A lawyer can also be appointed in a dual role, serving as both attorney ad litem and guardian ad litem.

A guardian ad litem investigates, gathers information and can make recommendations to the court, but doesn't provide legal representation to the child.

Who pays?

In a private custody case, the parents usually pay. The judge sets a reasonable fee and orders one or both parties to pay it, often split between the parents or divided based on each parent's income. The fee can be treated as a court cost, and the order to pay it can be enforced. Some courts require a deposit up front and additional payments as the case goes on.

Judges generally consider whether the parents can afford an appointment before making one. If a parent truly can't pay, tell your lawyer or the court early. In state-filed cases like CPS cases, the county typically pays for the child's representation.

Ad litem and amicus fees can add real cost to a custody case. If you and the other parent can settle the issues, the appointment may be shorter and less expensive, or unnecessary.

How to work with the child's representative

Whoever is appointed will form opinions about both parents. A few practical tips:

• Respond promptly to calls, emails and requests for documents. Missing appointments looks bad.
• Be honest. If there is a problem in your past, it's better for the representative to hear it from you with context.
• Focus on the child, not on attacking the other parent. Talk about routines, school, health and what your child needs.
• Don't coach your child. Children who have been told what to say are usually easy to spot, and coaching can seriously hurt your case.
• Keep your home ready for a visit and make sure the child has their own space to sleep and keep belongings.
• Pay your share of the fee on time if ordered to.

The representative's recommendation is not a ruling. The judge makes the decision after hearing all of the evidence, and your lawyer can challenge a recommendation you disagree with. Still, judges give these recommendations serious weight.

Can you ask the court to appoint one?

Yes. Either parent can file a motion asking the court to appoint an amicus attorney, attorney ad litem or guardian ad litem. You might ask for one if the other parent is hiding problems, if your child is being pressured, or if you believe an independent investigation would help the court see what's really going on. You can also oppose an appointment, for example if it would create a cost neither parent can manage.

To learn more about how custody decisions are made, read factors courts consider in determining custody and a child's preference in Texas custody cases. If you need help with a custody case in Seguin or elsewhere in Guadalupe County, Attorney Jesus R. Lopez offers a free consultation. Visit the child custody lawyer page for more.

Frequently asked questions

Have questions about your situation? Talk with a Seguin child custody lawyer. Consultations are free, by phone or in person, in English or Spanish.

Related guides

This article is general information about Texas law, not legal advice for your situation. Laws change, and every case is different.