By: Alphonse F. Provinziano, Esq.

 

When a parent who maintains legal primary child custody in California requests to move away with the child and the stay behind parent opposes the move, the court is likely to require a California Evidence Code 730 Child Custody Evaluation prior to making a determination. A 730 Child Custody Evaluation is a wide-ranging evaluation by an approved mental health professional used to advise and report back to the Court relevant factors under the La Musga case in order to assist the court in making a decision regarding the child’s best interests.

Since some courts also use a minor’s counsel, a key player in the completion of such an evaluation is the attorney who serves as minor’s counsel, if there is one appointed by the court.

What is Minor’s Counsel?

A person who acts as a minor’s counsel is an advocate—not beholden to the parents—who represents the child and collects information for the court relative to what is in the child’s best interests. In order to do that, the minor’s counsel interviews the child to assess how he or she feels about the parents, the divorce, and the potential move away. The minor’s counsel also interviews the child’s parents, as well as other peripheral adults, such as the child’s doctors, teachers and therapists.

In addition to conducting interviews, the minor’s counsel also reviews psychological evaluations, medical and school records, and any other information deemed relevant to determining what is in the child’s best interests.

The minor’s counsel will also submit relevant information the 730 child custody evaluator for their use in preparing a report for the court.

To maintain neutrality, an appointed minor’s counsel must abide by certain laws. Also, since the minor’s counsel serves as an attorney for the child, California Family Code Sections 3151, 3151.5 and 3152 provide certain rights and protections that assist the minor’s counsel in remaining neutral and thoroughly completing the evaluation.

For example, a minor’s counsel is legally allowed to have reasonable access to the child. Minor’s counsel may also obtain independent physical or psychological examinations of the child, pending court approval.

Other rights and responsibilities of Minor’s counsel include the following:

  • Access to notices of proceedings, and the right to appear at each one that may impact the child
  • Requirement to maintain confidentiality
  • Ability to access all court documents and filings in order to respond on behalf of the child
  • The right to monitor relevant adults (i.e. parents, state workers, counselors) to ensure that the child’s rights are not violated
  • The right to voice concerns to the court on the child’s behalf
  • Upon court approval, inform the court of the child’s preferences regarding the move
  • To inform the court if a child wishes to testify in the move away bench trial

In the case of multiple children, each child may have a separate minor’s counsel representative assigned. Once a minor’s counsel is assigned, he or she represents the minor for a term specified by the Court, until the child turns 18, or until relieved by the court in its discretion.

Legal Standard for Minor’s Counsel and How They Get Appointed

Guidelines have been established relative to who may serve as a minor’s counsel in the State of California. First, a minor’s counsel must be a lawyer. Prior to being approved as a minor’s counsel, a lawyer must do the following:

  1. The lawyer must be in good standing with, and an active member of, the California State Bar
  2. The lawyer must maintain liability insurance or proof of sufficient self-insurance
  3. The lawyer must successfully complete specific training and education, and have sufficient experience in the following subject matter:
  • Child custody and visitation litigation (court rules, case law and statutes)
  • Child custody and visitation proceedings representing children.
  • Stages of child development, including interviewing and communication, and presenting the child’s view.
  • Recognizing, understanding and evaluating evidence of gender specific issues, neglect, family violence, child abuse (including sexual abuse), substance abuse, and cultural and ethnic diversity.
  • A minimum of 8 hours of additional training must be taken annually.

Additional experience requirements include the lawyer’s representation in a minimum of 6 child custody cases within the previous 5 years prior to qualification. Two of the six child custody cases must have been contested.

Cases Where the Court Would Appoint Minor’s Counsel for a Move Away Case

Minor’s counsel representatives are appointed by the court, either by request of the parent or direction by the court. A minor’s counsel may be deemed necessary by the court in cases involving a high level of interparental conflict. For example, if the move away parent has shown a history of interfering with the relationship between the child and the stay behind parent, the court may appoint a minor’s counsel. If the parents have historically not gotten along with one another and/or disparage the other parent to the child, a minor’s counsel may also be appointed.

If the court has concerns about parenting skills and whether or not the parents are capable of acting in the child’s best interests, a minor’s counsel may be appointed. A history of domestic violence, substance abuse, neglect, sexual abuse, and other red flags may also prompt the court to appoint a minor’s counsel to represent the child.

Regardless of how or why a minor’s counsel is appointed, the parents are typically responsible to pay for the service. If the parents cannot afford to pay, but the court deems the minor’s counsel necessary, then the court may opt to pay for it, if there is available funding.

What Minor’s Counsel Can Do for the Court

A minor’s counsel serves as an attorney for the child, so the ability to remain neutral and not advocate for the parents, but the child is crucial.  Minor’s counsel post-Elkins operates like any other attorney representing a party, and must present evidence and argument under the rules of evidence. Often, information and argument presented by the minor’s counsel may assist the court in developing a complete picture of the child’s current and past well-being status in order to determine what is in the child’s best interests relative to the move away request.

Information gleaned from the various interviews (teachers, coaches, parents, therapists) and records (school, medical) helps the court project how much a move away would detrimentally impact the child, based on past and current behaviors and relationships. The court uses the evidence presented as well as argument by the minor’s counsel as an aide to help determine whether or not a move away request will be granted.

Evidence gathered by the minor’s counsel plays a critical role in determining what is in the child’s best interests. While not always employed by the Court, when there is a minor’s counsel appointed, the role of a minor’s counsel in a move away case may be valuable to the court, particularly in contested move away cases and those involving a history of parental conflict.  This is achieved by having an advocate for the children, who can argue for their best interest.  A minor’s counsel can also be critical in expressing to the court that a child wishes to testify on their own behalf.  If the court exercises its discretion, and denies this request, then a minor’s counsel can be approved by the court to express the child’s preferences regarding the move as well.

© Alphonse F. Provinziano, Esq.

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