The court may, on its own, appoint private counsel to represent the child’s interests in a custody or visitation proceeding if the court determines that doing so would be in the child’s best interest. This attorney is sometimes referred to as minor’s counsel.
The court may also appoint counsel for the child at the request of any of the following:
- A party;
- The attorney for a party;
- The child or any relative of the child;
- A mediator;
- A custody evaluator;
- A court-appointed guardian ad litem or special advocate;
- A county counsel, district attorney, city attorney, or city prosecutor authorized to prosecute child abuse and neglect or child abduction cases under state law; or
- Any other person who the court deems appropriate.
In appointing a counsel for the child, both the court and the counsel must comply with the requirements laid down in the California Rules of Court Rule 5.240, 5.241, and 5.242 on the appointment, compensation, qualification, rights, and responsibilities of counsel appointed to represent a child in family law proceedings.
The court orders appointing or terminating counsel for the child must always be written. And in order to reduce confusion, conflict, and delay that may be brought about by misunderstanding of the child’s counsel’s efforts and rights to represent the child independently, courts will often include in these orders the express rights of child’s counsel at the time of appointment.
The Duties of Child’s Counsel
The role of a child’s counsel is to gather evidence to support what is in the best interest of the child and to present this evidence to the court. This includes reporting to the court the wishes of the child if the child wants it to be known to the court.
Part of the duties of a child’s counsel is to interview the child, review the court files and all accessible relevant records available to both parties. The child’s counsel, if necessary, must make further investigations in order to ascertain evidence relevant to the custody or visitation hearing. Counsel may introduce and examine witnesses, present arguments to the court concerning the child’s welfare, and participate in the proceeding to the degree necessary to represent the child adequately.
If the child is to testify in court, it is the duty of counsel to inform the child in a manner understandable to him or her about limitations on confidentiality and the possibility that information may be on record and provided to the parties of the case. Counsel must allow but not require the child to state his preference regarding custody and visitation and inform the child about how the court makes a decision. Counsel must orient the child as to the procedure relevant to his participation and the venue where the child will testify. It is also the duty of the child’s counsel to inform the court and parties about the child’s desire to provide input.
The Rights of Child’s Counsel
The rights of the child’s counsel include, among others:
- Reasonable access to the child;
- Standing to seek affirmative relief of the child’s behalf;
- Notice of all proceedings, and all phases of that proceeding, including a request for examination affecting the child;
- Right to take action available to a party to the proceeding, including filing pleadings, making objections, and presenting evidence;
- Right to be heard in the proceedings;
- Access to the child’s health and education records and to interview persons involved in the child’s education, health care, and caretaking;
- Right to inspect juvenile case files or request the court to authorize the release of relevant reports of the child;
- Right to assert or waive any privilege on the child’s behalf;
- Right to seek independent physical or psychological examination or evaluation of the child, with the court’s approval;
- Receive child custody evaluation reports;
- Not to be called as a witness in the proceedings;
- The right to reasonable advance notice of and the right to refuse any physical or psychological examination or evaluation, for purposes of proceeding that has not been court-ordered