by Iris Forester

Created on: December 09, 2008   Last Updated: December 18, 2008

Laws concerning representation of children are related to a larger set of laws which govern all vulnerable persons not wholly able to make judgments about their own welfare.

When the vulnerable person is a child, the court may appoint an attorney to represent the child (the "minors' counsel"), and/or the court may appoint a paid professional or trained volunteer advocate for this purpose. The duties of these advocates overlap in most respects, but the minors' counsel has the widest scope of power and responsibility. Payment for the minors' counsel must not seem to favor either side, and in divorce cases, the judge determines the proportion of fees to be paid by each parent. If there is no family money available, the county bears the cost of the minors' counsel.

It is important to mention that the information in this article does not apply to attorneys who defend juveniles being tried for crimes under the California Penal Code. Minors' counsels are generally appointed in two situations: either to represent children who are affected by highly contentious divorce or custody litigation, or children who are the subjects of a dependency proceeding. (Dependency proceedings arise in cases of severe abuse or neglect, where the court must decide on the best place for that child to live.)

An attorney who represents a child must sometimes strike a delicate balance between two separate types of duty to his client; he or she must represent both the child's wishes and the child's best interests.

As in any attorney-client relationship, the minors' counsel must consult the wishes of his client, regardless of age, and is required to convey these wishes accurately to the court. Various California laws address the issue of how old children must be in order to have their desires formally considered by the court. There is a Family Code which states that children 10 and older may be interviewed by the judge in chambers regarding their preferences and wishes in child custody cases. Children of this age with a minors' counsel will have their voice supported and clarified by that representative.

In dependency cases, the California Welfare and Institutions Code states that the child's counsel must interview any client over the age of four in order to ascertain the child's wishes, and must inform the court of those wishes in writing. Additionally, children over the age of 12 are permitted to invoke a confidentiality privilege which only the child (not the attorney) may waive.

However, the role

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