In certain cases, the court will determine that the minor should have his or her own attorney, and can appoint an attorney to represent the child’s best interest. California Family Code §3151 provides the authority for this appointment and makes it clear that Minor’s Counsel is charged with the representation of the child’s best interest. Sometimes the minor’s wishes and the minor’s best interest are in conflict. In this case, Minor’s Counsel must advocate for the child’s best interest.
The role of Minor’s Counsel is to gather and present to the court, all evidence that bears on the best interests of the child. Often times, minor’s counsel will prepare a written statement of issues and contentions for the court. If the child desires, Minor’s Ccounsel must present the child’s wishes to the court. Generally, Minor’s Counsel’s duties include: interviewing the child; reviewing the court files and all accessible relevant records available to both parties; and making any further investigations counsel considers necessary to ascertain evidence relevant to the custody or visitation hearings. Such documents that may be reviewed include the child’s medical, dental, mental health and other health care records, school and educational records. In addition, Minor’s Counsel may contact and interview school personnel, caretakers, health care provider, etc.
It is important to know that once Minor’s Counsel is appointed by the court, he or she is entitled to any and all medical records regarding the child. Minor’s Counsel does not need authorization from either parent.
Minor’s Counsel may also request that the court authorize the release of all relevant reports concerning the child from child protective services. If this request is granted, the court will review the reports in order to determine whether they are relevant to custody or visitation prior to releasing such records to minor’s counsel.
In terms of cost, if the court appoints Minor’s Counsel, it is likely the parties will pay Minor’s Counsel’s fees. The court will determine a reasonable sum for compensation and expenses, and will likely order that this fee be paid by the parties in the proportions the court deems just. If the parties together are not able to pay for all, or part of the costs, the Family Code says that the county will pay. Unfortunately, this is not possible in many counties, due to the lack of funding available to the courts at this time.
Janet E. Dockstader, is a partner with Brandmeyer Gilligan & Dockstader, LLP. She has more than a decade of experience negotiating marital settlement agreements and litigating Long Beach family law matters, including property issues, spousal support, child support and child custody.
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