RIGHTS AND DUTIES OF MINOR’S COUNSEL
This will be the first in a series about the position of Minor’s Councel.
In Family Law cases, pursuant Family Code §3150(a) the child’s counsel is charged with the representation of the child’s best interest.
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. The counsel’s duties 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 evidene relevant to the custody or visitation hearings. Family Code §3150(a)
(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
(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.
Family Code §3151(c)
An important limit to the Minor’s Counsel’s role is that it does not provide a recommendation to the court. Although under prior statute (repealed as of January 1, 2013), minor’s counsel was tasked with providing a “statement of issues and contentions” and the Court was required to consider said statement prior to any judicial determination of custody and visitation, this was repealed because it made the Minor’s Counsel a witness. There is no longer any provision under the code for a statement of issues and contentions by minor’s counsel.
Minor’s counsel is ultimately bound by the same laws and rules as all other counsel in the proceeding and has no unique ability to introduce inadmissible evidence or engage in ex-parte communication. “Appointed counsel does not enjoy any reprieve from the normal rules of evidence.”
The Rutter Group, California Practice Guide, Family Law (2014) p. 7-103, ¶7:288.