What Is a Minor’s Counsel?

WestLake village Child Custody Attorney, WHAT IS A MINOR’S COUNSEL?

The Court may appoint counsel to represent a child’s best interest on its own motion or on request by a party, a party’s attorney, the child or a relative of the child.

Family Code §3150 provides:

(a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and 5.242 of the California Rules of Court.

(b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause. (Am Stats 2010, C352)

Appointment of counsel to represent a child in family law proceedings – Appointment Considerations:

California Rules of Court 5.240 provides, “In considering appointing counsel under Family Code section 3150, the court should take into account the following factors, including whether”:

(1) The issues of child custody and visitation are highly contested or protracted;

(2) The child is subjected to stress as a result of the dispute that might be alleviated by the intervention of counsel representing the child;

(3) Counsel representing the child would be likely to provide the court with relevant information not otherwise readily available or likely to be presented;

(4) The dispute involves allegations of physical, emotional, or sexual abuse or neglect of the child.

(5) It appears that one or both parents are incapable of providing a stable, safe, and secure environment;

(6) Counsel is available for appointment who is knowledgeable about the issues being raised regarding the child in the proceeding;

(7) The best interest of the child appears to require independent representation; and

(8) If there are two or more children, any child would require separate counsel to avoid a conflict of interest.

Family Code §3151(c)(1), which gives minor’s counsel the right to reasonable access to a child, is justified by the compelling state interest in protecting that child’s best interests in a custody dispute. Hence, the parents’ constitutional rights are not infringed upon when minor’s counsel is appointed pursuant thereto.

Family Code §3184 allows a mediator to recommend to the court that counsel for the child be appointed to represent the minor child. In making this recommendation, the mediator shall inform the court of the reasons why it would be in the best interest of the minor child to have counsel appointed. (Am Stats 2002, C1077).

Family Code §7861 provides, “The court shall consider whether the interests of the child require the appointment of counsel. If the court finds that the interests of the child require representation by counsel, the court shall appoint counsel to represent the child, whether or not the child is able to afford counsel. The child shall not be present in court unless the child so requests or the court so orders. (Ad Stats 1992, C 162)”

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FREQUENTLY ASKED QUESTIONS

  • This is very important: If you have separated from your spouse before one of you has filed for dissolution of marriage or legal separation, avoid agreeing to and placing into effect a temporary parenting plan arrangement regarding the children unless you will be able to live with this arrangement after the divorce papers have been filed. Once you begin a parenting plan that seems to be working, it becomes the "status quo." It is very difficult to convince a mediator or judge to change the status quo, especially if it is working or appears to be working and is not detrimental to the minor children.
  • If you have not received a judgment dissolving your marriage before the end of the year, you may file an individual tax return under the status of "married, filing separately" or a joint tax return with your spouse. You should consult your accountant as to the advantages of these options. You may obtain special information booklets regarding tax information for divorce or separated individuals from your local IRS office or read the IRS booklet online.
  • To file an action for divorce, also known as dissolution of marriage, a person must have resided in the state of California for six months and in the county where the action is filed for three months prior to filing the petition in court. This is true of either the petitioner or the respondent - either person can meet the test and allow a filing. If your spouse meets the residency requirement, you can file even if you do not meet it yourself.
  • The court can and usually will order you to move out of your residence if your spouse convinces the court that you have been violent toward your spouse or threatened your spouse. You could be given ex-parte notice to be in court the next day because your spouse is seeking an order to make you move out and stay out. You can be ordered to leave immediately and not return even if your spouse is not on the property title or lease agreement! Once you are ordered to leave, it is not likely that you will be allowed to return.
  • Before you get a divorce, photocopy all relevant financial documents that you can obtain and store them off-site with a trusted friend or relative. Do not store them in the trunk of your car where they can easily be found and removed by your spouse. There may be both personal and strategic reasons not to tip off your spouse that documents are being reviewed for a possible dissolution proceeding. Make copies of documents that you find in the residence and return the original documents to their original location as soon as possible so that your spouse won't notice that they are missing. It is often advisable to make the photocopies when you are sure your spouse is away for an extended time, such as during a workday. It is advisable to gather as many relevant financial documents as possible while they are still available and before they have been removed or destroyed by your spouse. This will significantly reduce the cost of divorce litigation if the documents do not have to be recovered later. It will also permit us to get a true picture of all community assets and debts as soon as possible.