Understanding the role of minor's counsel in family law cases

When I began working as a family law attorney in 2007, I quickly decided to move from litigation to mediation and collaborative law in an effort to promote healing for those involved in these complex and difficult matters.

I soon noticed that the most unfortunate victims in the family law system were the children who were being dragged through litigation. Some wanted a voice, some did not. A vindictive parent brainwashed some. Some were emotionally or physically abused. Their only chance at becoming healthy adults was for someone to intervene on their behalf.

As a result, I decided to serve as a minor's counsel to be able to do more to help the children caught in the middle of family law matters. It is the most thankless job I have ever done, but I still love it. I am paid 25% of my normal rate and, usually, one or both parents do not like what I have to say.

According to the 2024 California Rules of Court, a minor's counsel "is charged with representing the child's best interest. The role of the child's counsel is to gather evidence that bears on the child's best interest 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 must present the child's wishes to the court."

Responsibilities under Family Code section 3151 include interviewing the child, reviewing court files and all relevant records available to both parties, and making any further investigations necessary to establish relevant facts to custody and visitation issues.

Commonly held misperceptions about the role of a minor's counsel:

●     Minor's counsel represents the parents' interests: Many people mistakenly believe that minor's counsel advocates for one parent's position or interests. In reality, minor's counsel is appointed to represent the best interests of the child exclusively, without bias towards either parent. They provide a neutral voice for the child, ensuring that the child's rights and physical and emotional well-being are prioritized.

●     Minor's counsel forces children to choose sides: Another common misunderstanding is that minor's counsel will pressure children to take sides in custody disputes. On the contrary, a minor's counsel is tasked with gathering the child's preferences and concerns but does not compel the child to express a preference if they are uncomfortable doing so. The counsel's goal is to facilitate a safe environment for the child to express their views if they choose to do so.

●     Minor's counsel can testify in court: Some believe that minor's counsel can testify in court about the child's statements or preferences. However, the minor's counsel typically does not testify; instead, they advocate to the court based on their interviews and investigations. This distinction is crucial as it maintains the confidentiality and safety of the child's input.

●     Minor's counsel's role is one-dimensional: While minor's counsel does provide legal representation, our role extends beyond just legal advocacy. We are responsible for investigating the child's situation, which includes consulting with relevant parties such as doctors and teachers, and gathering information about the child's environment and well-being. This comprehensive approach helps ensure that the court has a full understanding of the child's needs.

I base my advocacy on evidence, clinical input from medical professionals, experience and intuition. A child's preference should be heard and respected. But the child also has to be mature enough and mentally healthy enough for that preference to represent what is best for the child. Too many times I have seen children coached to want to live with one parent when the parent coaching them is mentally manipulating and abusing them. But kids just want to be loved and taken care of and, understandably, are often not able to fully process the dynamic they find themselves in.

I am a minor's counsel so that I can give a chance to those without a voice in this system. I consider it the most important work I've ever done.