The Role of Minor’s Counsel in California
Determining child custody is often not an easy process. When going through a child custody dispute as part of a divorce proceeding or parentage hearings, the court may use several tools to help figure out what is in the best interest of the child. One of these tools is the Minor’s Counsel.
A Minor’s Counsel is an attorney appointed by the court to represent the child. The Minor’s Counsel solely represents the child, not the parents, and works to support the child’s health and wellbeing. 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. A Minor’s Counsel generally only represents one child, so if there is more than one child involved in the custody dispute, multiple Minor’s Counsels may be appointed.
Put simply, Minor’s Counsels are fact finders. They will interview the child, the parents, and any therapists and doctors to help find out what is in the child’s best interest. Depending on the situation, the court may ask the Minor’s Counsel to look into specific issues related to the child.
To complete the fact-finding and advocate for the child’s best interest, a Minor’s Counsel has certain rights, including:
- Reasonable access to the child;
- The right to interview individuals and review records related to the child, including those related to medical, psychological, school, providers, or any other individual who provided care for the child;
- To be provided all notices of proceedings, court filings, documents, and the ability to file proceedings or seek independent medical and psychological exams;
- To monitor parents, counselors, advocates, or anyone else involved with the child; and
- To be present and permitted to make statements to the court on behalf of the child.
The Minor’s Counsel may also determine the child’s preferences and wishes if the child is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.” If the Minor’s Counsel believes that the child’s preferences align with the child’s best interest, those preferences can be communicated to the court and used to help determine the outcome of the case at hand.
Contrary to what many people may think, Minor’s Counsels are not chosen by the parents or guardians of the child, although they can request that one be appointed. A Minor’s Counsel is appointed by the court, most often in custody cases that involve one of the following:
- Extended disagreement on custody of the child;
- The inability of either parent to provide for the child’s wellbeing; or
- Allegations of abuse or neglect.
In addition to parents, the child himself/herself, a family member, an attorney, a guardian ad litem, or a court advocate can also request the appointment of a Minor’s Counsel.
This is also determined by the court. In many cases, the cost of the Minor’s Counsel is split between the parents of the child. In other cases, one parent may bear the cost of the Minor Counsel or, if the court has found one or both parents to be indigent, the court may order the county to pay for the Minor’s Counsel’s services.
When the court informs a Minor’s Counsel that they have been appointed, that Minor’s Counsel generally reaches out to the child’s parents to provide information and release forms. The Minor’s Counsel will work with the parents to set up a time to interview the child alone before continuing their investigation and interviewing other relevant parties. The Minor’s Counsel then shares their findings with the court, the parents, and any other attorneys involved. It’s important to note that meetings between the child and the Minor’s Counsel are usually confidential, and it is important that parents respect that relationship and don’t try to influence what is said to the Minor’s Counsel.
Custody cases can be messy and stressful for a child. If you feel your child needs representation throughout a custody case, reach out to a certified Minor’s Counsel to learn how they can be a voice for your child without compromising the child’s rights, emotional wellbeing, or forcing the child to side with one parent. Both Kelly & Mark Irwin are court-approved in Orange County to serve as Minor’s Counsel. This is one of many legal tools that can assist in achieving the best possible outcome of your divorce case.