Should You Use a Minor’s Counsel?
As a parent, you want what’s best for your child. That can become challenging when you’re in the midst of an emotional divorce or custody case. To make sure that your child is heard and that your child’s best interest is being advocated for, it can be wise to request the appointment of a Minor’s Counsel.
A Minor’s Counsel is a court-appointed attorney who will represent your child and your child’s best interests. The Minor’s Counsel will be a neutral voice for the child and will be separated from the emotions that frequently come with a divorce or custody case.
Because the judge has to make all custody and visitation decisions based on the evidence that is presented in court, it’s important that all relevant information and evidence be brought before the court. A Minor’s Counsel can bring before the court information and evidence that supports your child and your child’s wellbeing. The Minor’s Counsel will do that in several ways:
- Investigating Facts. Once a Minor’s Counsel is appointed, they’ll begin their fact-finding mission. This investigation is based solely on the interests of your child and is completely independent of the preferences and interests of the parents. Throughout the investigation, the Minor’s Counsel will speak to your child directly and will also interview people with a close connection to your child, such as doctors, teachers, or therapists. The Minor’s Counsel is also authorized to review your child’s records, including school reports, medical records, and any psychological evaluations or examinations.
- Report the Facts. Aside from conducting the fact-finding mission, the Minor’s Counsel will also be the one who reports the information collected to the judge in the form of a report. In the Minor’s Counsel report, the Minor’s Counsel will raise any concerns they have about the child’s care; review their findings on the child’s safety, wellbeing, and health; and provide an opinion on what is in the child’s best interest. The judge will give the Minor’s Counsel report substantial weight in decision making as the Minor’s Counsel has access to a complete picture of the child’s life.
- Express the Child’s Preference to the Court. If the child is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation,” the judge will consider the child’s preference in making the custody determination. For many children, appearing in court in front of their parents to share their preferences can be stressful. When the child doesn’t want to share his/her preferences, the Minor’s Counsel will step in. The Minor’s Counsel will discuss preferences with the child privately and then express those preferences on behalf of the child in a way that protects the child’s rights and can alleviate tension in the parent-child relationship. It is important to note, however, that the Minor’s Counsel is not required to advocate for the child’s preferences if those preferences are not in the child’s best interest.
Under California law, a Minor’s Counsel may be appointed in any case that involves child custody or visitation. A Minor’s Counsel is not necessary in every case. Those cases that are very low-conflict or where the parents have been able to amicably work out a custody agreement likely don’t need a Minor’s Counsel involved. However, in more complex or intense cases, a Minor’s Counsel can be critical.
In cases involving any of the following, the court will usually appoint a Minor’s Counsel:
- Allegations of violence, abuse, or neglect:
- High conflict or a prolonged legal history between the parents;
- The case is causing the child stress;
- The child’s best interest, or information related thereto, is likely not going to be presented by the parents; or
- A parent is not able to provide for the child’s wellbeing.
While the Minor’s Counsel is appointed by the court, a parent may request that a Minor’s Counsel be appointed for their child. If you’re concerned about the stress your custody case may be having on your child, a Minor’s Counsel may be able to help alleviate that stress and make sure your child’s rights are protected throughout the custody process. Both Kelly & Mark Irwin are court-approved in Orange County to serve as Minor’s Counsel.
However, remember that the Minor’s Counsel is there for your child’s interests, not yours, even if you are the party who requested the appointment and is footing the bill. If you’re considering requesting the appointment of a Minor’s Counsel, make sure to speak with an experienced attorney beforehand who can advise you of the benefits and potential consequences of doing so.