When the court appoints Minor’s Counsel for your child in a custody matter, you might worry what that counsel will recommend to the court regarding your case. Keep in mind that the job of Minor’s Counsel is not to tell the court how to resolve custody matters but instead to present evidence they collected regarding the child’s situation and what may or may not be in their best interests. The judge will then take the information presented within the context of the entire custody case and make their decision.
The Minor’s Counsel has no allegiance to one parent or the other – their focus is to determine and present what they believe is in the best interest of the child in question. Best interests of the child involve examining the following in California:
- The child’s health, welfare, and safety
- Whether there is a history of abuse by a parent against the child, the other parent, or another household or family member
- The amount of contact the child has with each parent and the nature of that contact
- Substance abuse by either parent
There are more specific factors that are usually examined by a Minor’s Counsel, including:
- The physical and mental needs of the child
- Each parent’s ability to provide for the child’s specific needs
- Whether the parents are able to cooperate and encourage relationships between the child and the other parent
- The child’s ties to school, community, or other family or household members
Minor’s Counsel will interview the child, investigate the situation, and present evidence to the court regarding the above factors. Their evidence and arguments will vary depending on the circumstances at hand, but it should always focus on the best interests of the child.
If a child wishes for them to do so, a Minor’s Counsel will present the child’s preferences and opinions regarding custody. Counsel will first determine whether the child has sufficient age and capacity to have an intelligently considered preference. The preference of a child is meant to be one of many factors in a custody case and should not be the only factor considered.
The Minor’s Counsel can also report whether the child’s preference has a reasonable basis or not. For example, if a child likes staying with one parent more because they do not enforce any rules, it will likely not be considered a reasonable basis for the preference. However, if the child has valid reasons for wanting to spend more time with one parent than the other, the Minor’s Counsel can present these reasons to the court as part of their case.
Some parents can agree on how to divide custody, while others need court intervention and for a judge to decide how their custody arrangement will go. Minor’s Counsel is generally appointed in highly contested custody issues when the court is making the decision.
There are two outcomes that are possible when custody is in the hands of a judge – the judge might order both parents to share custody in some manner or might award sole custody to one parent. California law favors joint custody as being in the best interests of the child unless there are extreme circumstances. Some circumstances that might lead to sole custody include abuse, serious substance abuse or mental illness, or other issues of one parent that prevent them from keeping the child safe and well.
You can be sure that Minor’s Counsel will work to uncover any circumstances that might warrant sole custody. While they are not on one parent’s side or the other, it might be necessary to present information about a parent’s misconduct or deficiencies in order to protect the child’s interests.
If your child has Minor’s Counsel in your custody case, it likely means that you are in a dispute over custody. This might be an initial custody dispute as part of a divorce or paternity case, regarding a move away petition, or a custody modification case. In any of these situations, it is critical that you have a child custody lawyer standing up for you.
If custody is up in the air, so are your parental rights. Minor’s Counsel is not a witness in a custody case, so they cannot be cross-examined or challenged. Therefore, you want to make sure your lawyer can present a case in your favor for the judge to consider along with the Minor’s Counsel’s evidence.