As a parent, you may believe that everything you do is for your child’s best interest. However, sometimes, the emotions of a high-conflict divorce or custody case can cloud your judgment. Other times, parents or state employees may have different views on what is best for your children. When that happens, the court may appoint a minor’s counsel, even if you don’t think your child needs their own lawyer, to help the judge sort things out.
California law allows for “minor’s counsel” to be appointed in any case involving child custody or visitation. This includes divorce. A child doesn’t necessarily need their own lawyer in every custody case. In most low-conflict situations, parents are able to come to an agreement or present arguments to the court about custody and visitation that reflect their children’s best interests. However, in higher risk situations, including domestic violence, one parent is often battling against an abuser who is all too willing to prioritize their own needs over the child’s. Minor’s counsel may be appropriate under the California court rules where:
Minor’s counsel can be requested by either parent or their attorneys; the child or another relative on that child’s behalf; a mediator; attorneys or prosecutors in an abuse, neglect, or child abduction case; or certain professionals making custody recommendations to the court. A family law judge can also decide to appoint a minor's counsel on their own. Where there are two or more children involved, the court may appoint each child a different attorney in case their interests are not the same.
A family court judge must make all custody and visitation decisions based on the evidence presented in court. No matter how long a trial takes, that evidence is limited by the parents’ priorities and their attorneys’ access to information (some of which is often confidential). A minor’s counsel can assist the court by bringing to light information and evidence that would otherwise never make it to the courthouse.
Once appointed, a minor’s counsel is a fact finder working on behalf of your child, independent of either parent’s preferences or interests. They act as a neutral voice for the child until that child turns 18, or their appointment is ended by the court. Minor’s counsel assists the judge by gathering information that may not otherwise make its way to court. This may include:
Once a minor’s counsel’s investigation is complete, he or she will prepare a report for the judge. In this report, the minor’s counsel may raise concerns about the child’s care, review findings related to the child’s health, safety, and well-being, and express an opinion about what is in the child’s best interests. Because the minor’s counsel has access to a more complete picture of the child’s life, judges often give these reports substantial weight when resolving a child custody dispute between the parents.
California law directs family law judges to consider a child’s preference in deciding custody and visitation if the child is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody.” Still, it is very rare for a child to testify before a judge. Depending on the child, and the circumstances they experienced, appearing in court in front of their parents or their attorneys to say where they want to live can be stressful, sometimes even traumatic, and may affect the child’s relationship with their parents. In those cases, the minor’s counsel can discuss the child’s preferences with them privately and then express those preferences to the court in a way that protects a child’s rights and wishes, as well as their parent-child relationships.
However, a minor’s counsel is not required to advocate for the child’s preference. They act as an objective and independent agent, and their recommendations are based on the entire circumstances around the child, not just their wishes. Parents are wise not to try to infer a child’s preferences from a minor’s counsel’s statements in court.
The question of whether your child needs their own lawyer is a difficult one for many parents. Minor’s counsel is usually paid by the parents. How those costs are divided is up to the court. That means before you request an appointment you will need to consider whether you can afford the additional legal fees that will result.
You may think that by requesting appointment of a minor's counsel you will be getting another advocate on your side of the case. However, unless you are entirely certain of the facts, the independent nature of a minor’s counsel’s appointment could come back to haunt you. Minor’s counsel owes you no obligation, even if you are the party requesting appointment and paying the bills. That means any part you play in the difficulties your child is facing will also be brought to light. Before you push for an appointment, talk to your own family lawyer about the potential negative consequences and be exceptionally transparent about anything the child, or the professionals who work with them, may say against you.
Still, high conflict custody battles can put a strain on your entire family, including your children. Requesting appointment of a minor’s counsel may help free your child from stress and make sure their needs are addressed, especially when the truth seems hard to prove. At ADZ Law, LLP, our attorneys serve as minor’s counsel. We understand the role and can advise you on whether or not your child needs their own lawyer in your custody case. While we cannot represent both you and your child, we invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help your family when conflict is high.