In past years, lawyers appointed to represent children in divorce, child custody and visitation, legal separation, paternity and domestic violence cases had a significant role in the ultimate outcome of the proceeding. In recent years, however, the Family Code has been rewritten with respect to minor’s counsel so that the scope of their duties has been reduced and the overall effect they have on a case has also been reduced. The court has the ability to appoint minor’s counsel to represent a child or children. The appointment is governed by California Family Code sections 3150-3153.
Family Code section 3150 states:
- (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and 5.242 of the California Rules of Court.
- (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause.
What Is the Scope of Minors Counsel’s Duties in an Orange County Custody Case?
California Family Code section 3151 states that the primary obligation of a lawyer appointed to represent a child is for the attorney to look after the child’s best interests. Further, “The role of the child’s counsel is to gather evidence that bears on the best interests of the child, and present that admissible evidence to the court in any manner appropriate for the counsel of a party. If the child so desires, the child’s counsel shall present the child’s wishes to the court.”
What Kinds of Things Can Minor’s Counsel Accomplish in a Custody Case?
Family Code Section 3151(c) spells out exactly what a lawyer appointed to represent a child can do in looking after the child’s best interests in the custody case. The code states that minors counsel shall have all of the following rights:
- Reasonable access to the child.
- Standing to seek affirmative relief on behalf of the child.
- Notice of any proceeding, and all phases of that proceeding, including a request for examination affecting the child.
- The right to take any action that is available to a party to the proceeding, including, but not limited to, the following: filing pleadings, making evidentiary objections, and presenting evidence and being heard in the proceeding, which may include, but shall not be limited to, presenting motions and orders to show cause, and participating in settlement conferences, trials, seeking writs, appeals, and arbitrations.
- Access to the child’s medical, dental, mental health, and other health care records, school and educational records, and the right to interview school personnel, caretakers, health care providers, mental health professionals, and others who have assessed the child or provided care to the child. The release of this information to counsel shall not constitute a waiver of the confidentiality of the reports, files, and any disclosed communications. Counsel may interview mediators; however, the provisions of Sections 3177 and 3182 shall apply.
- The right to reasonable advance notice of and the right to refuse any physical or psychological examination or evaluation, for purposes of the proceeding, which has not been ordered by the court.
- The right to assert or waive any privilege on behalf of the child.
- The right to seek independent psychological or physical examination or evaluation of the child for purposes of the pending proceeding, upon approval by the court.
How Are Lawyers for Children Paid in Orange County Custody Cases?
Family Code section 3153 states that the court will order payment of reasonable fees to minor’s counsel by the parties or by the county. Whether or not the parties will have to pay for minors counsel depends on the financial status of the parties. If they are unable to pay the court may order them to pay a reduced amount or none of the fees.
Are Minors Counsel Appointed in Every Custody Case in Orange County, California?
No. In fact, the appointment of a lawyer to represent children in a custody case is somewhat rare given that minor’s counsel is no longer permitted to make a recommendation to court. The evidence that minor’s counsel may be able to gather can usually be gathered by the parents and their lawyers, thus reducing the need for minor’s counsel in many cases. There may be truly a need for a lawyer to represent a child or children in cases where there is high conflict between parents, or where the court can clearly see that the attorneys involved are not helping. The court may legitimately need the assistance of a somewhat independent lawyer to gather appropriate information.
Will Minors Counsel Report to the Court the Desires of a Child?
In most cases, yes. One of the allowable roles that a minor’s counsel plays is to report to the court what a child wants. If the minor’s counsel believes that reporting to the court what a child wants will actually not benefit the child and is not in the child’s best interests, the lawyer is likely under no duty to report those desires. Children 14 years of age or older nearly always have a statutory right to report their desires to the Family Court judge that is assigned to their case.
For more information about child custody and visitation cases, and the role that a child’s lawyer may have in your case, contact our office today.