Sometimes in cases involving custody and visitation issues, the Court will appoint minor's counsel. In the most simple of terms, minor's counsel is an attorney for the child. As with any other attorney, minor's counsel must advocate for their client-the child.
So how does minor's counsel actually come into the case? By appointment. The Court may appoint minor's counsel by its own motion or pursuant to a request that is filed by the parents; a mediator, a professional making a custody recommendation pursuant to FC Sections 3111 and 3119; a county counsel, district attorney, city attorney or city prosecutor authorized to prosecute child abuse and neglect or child abduction cases; a guardian or special advocate; or "any other person who the court deems appropriate." In essence, there is a wide range that governs who can bring a motion seeking appointment of minor's counsel. However, it should be noted that minor's counsel will only be appointed if it is found that such an appointment is in the child's best interest.
Once a motion has been made for appointment of an attorney for the child, the Court will take into consideration a variety of factors in examining whether such an appointment would be in the child's best interest. These include, in part, whether the issues are hand are highly contested; whether the child is subjected to stress from the dispute that could be alleviated by intervention of an attorney representing the child's interests; whether the attorney would likely be able to provide the court with relevant information not otherwise readily available or likely to be presented; whether the dispute involves allegations of child physical, emotional or sexual abuse or neglect; and whether it appears that one or both parents are incapable of providing a stable, safe and secure environment. In addition, if there is more than one minor child subject to the disputed custody and visitation issues, the Court will consider whether the children would require separate attorneys so as to avoid a conflict of interest.
When the attorney for the child is appointed, it is their job to meet with their client to speak about the issues at hand. Depending on the age of the child, the manner of the meeting may vary. For example, if the child is young, his/her attorney may spend some time at the beginning of the meeting playing games or reading books to help the child feel more comfortable. Then, through that meeting, minor's counsel will speak (in an age-appropriate manner) about the child's feelings and desires regarding matters involving the parents. It is then the attorney's job to share whatever information he/she deems appropriate and relevant with the parties and the Court. It is important for parents to keep in mind that minor's counsel only represents the child and not the parents. His/her duty is to the child alone meaning that in advocating for the child, minor's counsel must take the information the child gives them and keeping that information in mind, form opinions as to what they believe would be in the best interest of the child.
Here at Mello & Pickering, we have extensive experience working with minor's counsel and can help you navigate through your case where custody and visitation issues may be highly contested.