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THE VOICE OF THE CHILD: THE ROLE OF MINORS’ COUNSEL IN FAMILY LAW CASES

VERONICA ATTORNEY

By: Veronica Henderson, Attorney at Law

Every day, on both sides of the border, family law/ domestic relations courts are filled with litigants seeking to divorce or modify custody orders relating to their children. These cases are often marked by hostility and anxiety, especially given the high stakes involved – the relationship with one’s children, once the family is no longer intact. Attorneys or self-represented parties often argue to the judge with great zeal and passion, hoping to convince the judge that their children are better off spending the majority of their time with one parent, as opposed to the other. The absent party at these proceedings is the child, the very subject of so much discourse in court. Who speaks for them?

A minor’s counsel is an attorney who has received specialized training to represent the children in family law court. In California, an attorney must receive 12 hours of training to be minors’ counsel before representing children, and must receive 8 hours of continued training each year thereafter. A judge will appoint an attorney to represent the interests of the children if the court determines that it would be in the best interest of the minor child to do so, in a custody or visitation proceeding. The judge may appoint counsel for the child on his or her own motion or at the request of one or both of the parents. Attorney fees for the minors’ counsel will be paid by one or both of the parents.

The attorney appointed to represent a child will meet with the child on numerous occasions, just as any attorney would meet with his or her client. Because the client is a child, however, the attorney must know and understand how to interview children. Such knowledge and techniques can be learned through the training that minors’ counsel must attend each year. Minors’ counsel may also choose to interview the child’s teachers, friends, community members, therapists, medical professionals, and anyone else who can assist the attorney in making determinations as to what is in the child’s best interests. The attorney may make any further investigations that she considers necessary to ascertain the facts relevant to the custody or visitation proceedings. The attorney will report to the judge when asked to do so regarding the child’s’ best interests. This can include determinations relating to who should be the primary custodian of the child, and whether or not visitation with the non-custodial parents should be increased, as examples.

The benefits of having counsel for the children are numerous. Unlike the attorneys for the parents, the attorney for the children ensures that the children’s best interests are protected. Parents and their attorneys often become so invested at asserting their own perceived rights that they rarely can objectively assess what is best for their children. However, the minor’s attorney can and should do that. Unfortunately, children are treated as objects of ownership in many family law cases, and minors’ counsel assists in reminding the court that these are real human beings who are often going through a very stressful situation – the break-up of the family. Although the attorney should not act as a social worker or therapist, understanding the psychological processes that children often go through following the break-up of the family is vitally important.

The determination of what is in the best interest of the children may not always correspond to what the children express what they would like to see happen. For example, a child may say that he wants to live primarily with his father, but the attorney for the child may determine that the child would be better off living with the mother. This is a difficult and delicate situation for the attorney. Typically, an attorney will express what the client wants to the court. However, in family law cases, the focus is always the best interests of the children. Thus, minor’s counsel must always advocate for what is in the child’s best interest. The attorney may state to the court what the child wants, but must ultimately argue that the court should make orders that are in the child’s best interests.

Having an attorney for the children may help the parties reach a resolution rather than having to engage in a lengthy court trial. Once the parents learn what the minor’s attorney believes are in the child’s best interest, they may reach a settlement, especially knowing that the judge will be giving great consideration to the minor’s attorney’s position.

There is much to be gained by having an attorney for the children involved in a family law case. Houses and furnishings come and go. Our children are what really matter most.

 MINOR COUNSEL

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