Attorney Cannot Represent Child Absent Court Appointment

The Idaho Supreme Court concluded that an attorney was not authorized to represent a child in a divorce proceeding unless appointed by a court

This appeal is from the district court’s order dismissing an intermediate appeal from the magistrate court’s judgment in a divorce case and addresses the authority of an attorney to represent a minor child in the divorce proceeding absent court authorization.

Facts

Child was born to Anthony Lowman (“Father”) and Kayla Morgan-Smart (“Mother”) (collectively “Parents”) in 2015. Shortly after her birth, her paternal grandmother, Natasha Ray (“Grandmother”), was appointed as her temporary guardian. Thereafter, Grandmother was permitted to intervene in Parents’ underlying divorce action to determine legal and physical custody of Child once the guardianship terminated, which occurred in August 2021. Before Grandmother’s temporary guardianship was terminated, attorney Wm. Breck Seiniger, Jr. was asked by Grandmother to represent Child, which Seiniger accepted. He was never appointed by the magistrate court to represent Child in the guardianship case, and his authority to act on behalf of Child in that action is the subject of a separate appeal, Ray v. Morgan-Smart, No. 49946.

Below

The district court further determined Seiniger lacked standing because “Seiniger has no authority to represent [Child], having been denied appearance in the trial court and showing no evidence to appear in this matter pursuant to rules nor properly showing factual grounds for the representation of [Child] in this appeal.” Accordingly, the district court struck “all pleadings, motions, or memoranda filed by [Seiniger],” with the exception of documents that Grandmother’s counsel had formally adopted in writing.

Seiniger appealed.

Contentions

In this case, the magistrate court rejected Seiniger’s attempt to represent Child in the divorce proceeding and rescinded its permission to file a notice of appearance following Parents’ objection. The magistrate court explained there had not been a motion to appoint counsel to represent Child pursuant to section 32-704(4) or Rule 118, and found it was unnecessary for Child to be represented by counsel at that stage in the litigation. Furthermore, the magistrate court explained it would find a “completely neutral attorney” in the event the appointment of counsel for Child was necessary.

Seiniger challenges the magistrate court’s decision on three bases. First, Seiniger argues he was authorized to represent Child as Child’s “next friend” pursuant to Idaho Rule of Family Law Procedure 112(b)(2) and Idaho Rule of Civil Procedure 17(c)(2). Second, he argues the magistrate court erred because Idaho Code section 32-704 and Idaho Rule of Family Law Procedure 118 do not require a motion and order appointing an attorney when that attorney voluntarily appears on behalf of the child. Lastly, he argues Child “has a constitutional right to be heard and to petition the court for relief, which given her age could only be exercised through counsel.”

Holding

we decline to address Seiniger’s arguments because they are unpreserved, unsupported by sufficient authority, and unsupported by the record. Therefore, we affirm the district court’s conclusion that Seiniger lacked authority to represent Child. Consequently, the order of the district court, including its decision to strike “all pleadings, motions, or memoranda filed by” Seiniger, is affirmed.

(Mike Frisch)