by Sarah Guy

Created on: December 07, 2008   Last Updated: December 18, 2008

We'd all like to believe that we'll always put our children's welfare first, no matter what situation arises. In the heat of an embittered divorce battle, however, it's easy for even the most loving of parents to lose sight of their children's needs and feelings. When a custody battle gets especially contentious, California courts have the right, granted under California Family Code, Section 3150, to appoint a minor's counsel to the child or children involved.

A minor's counsel acts as a legal advocate who solely represents the child. These legal representatives are generally only assigned in a small amount of custody cases, and usually only when there is a high level of conflict between parents, or allegations of abuse against the child have been made. Ultimately, the counsel's job is to determine the best interests and desires of the child, and to present their objective findings to the court at least ten days prior to the custody hearing.

After being assigned to a child, a minor's advocate will begin by reviewing the entire court file and reading the pleas of both parental parties. He or she will also interview both parents and the child. Minor's counsel is also given the authority to request access to all school and medical records for the child, and to interview pertinent individuals such as health care providers, caretakers, and teachers.
They analyze all these varied sources to gain an accurate picture of the child's welfare and what custody situation would best suit their needs. These findings are presented to the judge hearing the custody case.

In addition to having access to the child, relevant records, and care providers, the minor's counsel is also afforded a few other rights in order to determine the most advisable custody outcome for the case. These include:

-The right to seek an independent exam or evaluation of the child with the approval of the court.

-The right to receive advanced notice of any exams or evaluations of the child, and the right to refuse them if not court-ordered.

-The ability to seek affirmative relief on behalf of the child.

-The right to take actions on behalf of the child, including filing proceedings, objecting to evidence, presenting evidence, and being heard in court proceedings.

-The right to assert or waive privileges on behalf of the child.

When the child being counseled is fourteen or older, counsel is expected to inform the court in writing if their final recommendation differs from what the child has expressed as their wish for the custody situation. For children under fourteen who display both competency and maturity, the counsel is still expected to give great weight to the child's wishes, but must take external circumstances into account as well.

The cost of the minor's counsel is usually born by the parents, and split between them at the discretion of the court. If the court determines that both parents, together, are financially unable to bear the cost of the counsel, then all or part of the costs will be paid by the county.

In the small number of cases where a minor's counsel is used, the judge is reliant on the counsel to give them an accurate assessment of which custody situation would be in the best interests of the child in question. For this reason, a minor's counsel plays a very significant role in contentious custody hearings. While it may be upsetting for a parent to be required to use these services, it's important to remember that a minor's counsel is an independent, objective party who's sole job is to make sure the needs and best interests of the children involved are being met.

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