Recent Case Development for Minor’s Counsel in Child Custody and Visitation Cases

Posted on June 3rd, 2015

San Diego Divorce Lawyers – Experts in Child Custody and Visitation

The recent appellate case of In re Marriage of Metzger (filed March 4, 2014), the Court of Appeals in California determined that the appointment of minor’s counsel in a child custody and visitation case does not violate the Constitutional right of a parent to determine what is in the best interests of their child.

The appointment of minor’s counsel is governed by the Family Code and California Rules of Court.  California Family Code 7861 says,

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.

Family Code 3151 provides what duties and rights exist for private counsel appointed for a child, including:

(a) The child’s counsel appointed under this chapter is charged with the representation of the child’s best interests. The role of the child’s counsel is to gather evidence that bears on the best interests of the child, and present that admissible evidence to the court in any manner appropriate for the counsel of a party. If the child so desires, the child’s counsel shall present the child’s wishes to the court. The counsel’s duties, unless under the circumstances it is inappropriate to exercise the duty, include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain evidence relevant to the custody or visitation hearings.

(b) Counsel shall serve notices and pleadings on all parties, consistent with requirements for parties. Counsel shall not be called as a witness in the proceeding. Counsel may introduce and examine counsel’s own witnesses, present arguments to the court concerning the child’s welfare, and participate further in the proceeding to the degree necessary to represent the child adequately.

(c) The child’s counsel shall have the following rights:

  (1) Reasonable access to the child.

  (2) Standing to seek affirmative relief on behalf of the child.

  (3) Notice of any proceeding, and all phases of that proceeding, including a request for examination affecting the child.

  (4) The right to take any action that is available to a party to the proceeding, including, but not limited to, the following: filing pleadings, making evidentiary objections, and presenting evidence and being heard in the proceeding, which may include, but shall not be limited to, presenting motions and orders to show cause, and participating in settlement conferences, trials, seeking writs, appeals, and arbitrations.

  (5) Access to the child’s medical, dental, mental health, and other health care records, school and educational records, and the right to interview school personnel, caretakers, health care providers, mental health professionals, and others who have assessed the child or provided care to the child. The release of this information to counsel shall not constitute a waiver of the confidentiality of the reports, files, and any disclosed communications. Counsel may interview mediators; however, the provisions of Sections 3177 and 3182 shall apply.

  (6) The right to reasonable advance notice of and the right to refuse any physical or psychological examination or evaluation, for purposes of the proceeding, which has not been ordered by the court.

  (7) The right to assert or waive any privilege on behalf of the child.

  (8) The right to seek independent psychological or physical examination or evaluation of the child for purposes of the pending proceeding, upon approval by the court.

In Metzger, a Husband and Wife married and had a daughter in 2004.  In July 2009, Wife filed a petition for dissolution of marriage and the court ordered a trial on the issue of custody and visitation for May 2011.  Wife requested a continuance and Husband objected, arguing that Wife was stalling.  The custody trial was postponed several times until it was set for October 2013.  In August 2013, the court set a hearing to determine whether minor’s counsel should be appointed.  The Wife contended that the child at issue has special needs and the court identified a Forensic Psychologist with a JD named Eve Lopez to possibly serve as minor’s counsel to fulfill the obligations set forth in the statutes provided above.  In September, the court appointed Ms. Lopez and Husband appealed, arguing that his Constitutional right to determine what was in his daughter’s best interests was violated.

The Court of Appeal affirmed the appointment of minor’s counsel.  California Rule of Court 5.240 sets forth specific factors the court should take into account in determining whether to appoint minor’s counsel, including whether (1) the issue of child custody is highly contested or protracted, (2) minor’s counsel would be likely to provide the court with relevant information not otherwise readily available, (3) knowledgeable counsel is available for appointment, and (4) the best interest of the child appears to require independent representation.  Since Family Code 3151 charges minor’s counsel with representation of the child’s best interests, the trial court did not violated Husband’s right to “advance” his daughter’s best interests.  Further, the Court of Appeal found that Husband’s right to decide with whom his daughter associates with does not trump the court’s authority to act in the child’s best interests within a custody dispute.

Minor’s counsel may be appointed in stepparent adoption cases.  For more information about stepparent adoption cases, click here.

For more information or to schedule an appointment, contact us today.