My name is Jon D. Alexander, Esq. and I am an Orange County, California Divorce Attorney. This article is the eighth article in a series outlining the divorce process in California. Please be aware that this article is not intended as and should not be relied upon as legal advice or as the creation of an attorney-client relationship.
Today’s article explains, briefly, counseling under Family Code Section 3190. This section provides instruction on counseling of parents and children. Generally, in a family code proceeding regarding custody or visitation, the court can order any or both parties and the children into outpatient counseling with a mental health professional and if a necessary a substance abuse program.
The factors considered when determining whether such an order is necessary are: (1) a finding that the counseling is in the best interests of the children and that the disagreement between the parties (parents), will be a substantial danger to the best interests of the child if it is not alleviated by counseling; and (2) In the past five years there has been an incidence of domestic violence.
A family court may only order counseling that lasts up to one year. However, this one year limit is renewable. Court must also determine that counseling will not be an undue financial burden. You might remember from previous articles in this series, that family law court Judges are not authorized by statute to order parents or children into therapy (but a juvenile court can order therapy).
There are Minor provisions in the family code that govern appointment of minor’s counsel. Family Code Section 3150.1 authorizes the family court to appoint a lawyer for the child if it’s in the best interests of the child. The appointed attorney represents the child during a custody or visitation proceeding. Minor’s Counsel’s duties include (1) interviewing the child; (2) Reviewing files and records of the parties; (3) Conducting reasonable, necessary investigation; (4) locating and offering witnesses besides the parties (parents) to the case on the child’s behalf; (5) Representing the child and arguing on behalf of the child’s best interests; (6) in sum, Minor counsel represents the child just he would any other client.
Minor’s Counsel has the ability to veto examination of the children even without a court order. And Minor’s Counsel determines who may claim certain privileges that belong to the child. Minor’s Counsel speaks for the child but also is bound to act in the best interest of the child and must convey the child’s viewpoint to the court. This means that Minor’s Counsel must report that, for example, the child wishes to live with Mom, but Minor’s Counsel must also report whether this would be in the best interests of the child.
Keep in mind that Minor’s Counsel is not an expert, like an evaluator, and isn’t required to be. And if the attorney does present the best interests analysis, they are not required to submit to cross examination regarding his analysis. Minor’s counsel can, however, interview others like care providers and mediators in order to reach his evaluation.
Under family law code Section 3151 at the court’s direction Minor’s counsel will be required to prepare a written statement of issues and contentions that explain the facts relevant to the best interests of the child. These statements usually contain a summary of information received from care providers, a list of the sources, results of the investigation, and other issues or facts relevant to the analysis.
There is no law on point that requires Minor’s Counsel to be subpoenaed to testify in court. There is, however, an older case (McLaughlin) that is instructive regarding this issue. Theoretically, McLaughlin could be used to make an such an argument if a case involving Minor Counsel be required to testify is heard by an appellate court. In McLaughlin, a mediator made recommendations against a parent in a confidential mediation county. The mediator was subpoenaed and relied on the local rule which said he wasn’t required to testify. The trial court ruled that the mediator need not testify. However, the Appellate Court reversed, forcing him to testify and be subject to cross examination. The Appellate Court held that there were constitutional issues involved and would not allow the mediator/witness to provide information to the court without be subject to cross examination.
So it would be possible for a party’s counsel to argue that Minor’s Counsel should be forced to testify and be subject to cross examination, using McLaughlin as precedent. Note, that while Minor’s Counsel can claim this privilege to avoid testifying, but he can also waive it in favor of testifying.
In my next article, we will explore some interesting Minor’s Counsel/Children issues and we will look at Parent’s constitutional rights in the context of Divorce proceedings including some relevant and interesting case law. In the meantime, if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at oc-familylawyers.com.
can a child that is 16 and turning 17 replace her minors counsel?
@VERONICA: @VERONICA: Hi Veronica, and thanks for reading and for writing in. I’m afraid I can’t answer your question, though. The answer would depend upon the laws of the state in question, the reason a counsel was appointed for her, the reason she wants to change, etc.
Of course the “book’ answer is just to tell you “you need an attorney”, but hiring one attorney to advise you regarding another attorney is just expensive and frustrating. If she just wants to change for personal/private reasons, I’d suggest writing a letter directly to the court who ordered the minor’s counsel in the first place. They have surely had such requests before and they would be the one’s to advise on what their rules would be.
If there is a more substantive reason … say she feels the counsel is not properly representing her, appears not to be competent, or if there is any suggestion of crookedness or impropriety, I’d write directly to the state bar association explaining what seems to be wrong and asking hep. (don’t accuse the attorney of any wrong-doing that you can’t prove, but you do not have to have hard evidence in order to have legitimate concerns). Bar associations usually do a good job in self-policing.
But my last suggestion perhaps should have been first. Ask the counsel him/herself? Maybe there is a lack of communication or some other misunderstanding that can be cleared up .. if not, it is the counsel’s duty as an officer of the court to explain to the minor her rights in requesting a change. That would be the simplest, likely easiest place to start. Who kniows, if there is a personality clash, maybe the counsel doesn’t want her as a client anymore, either. Can’t hurt to ask, methinks
the judge orderd my husband to pay half for minors counsel for his chila and the mother to pay the other half he feels that the attorney is taking the mother’s side and giving her everything she wants my husband has had his son two years and has done nothing wrong his child mother lies and has no proof if anything and the minors counsel takes her side the attorney has covered up for her many time the child was burned on a stove and the attorney never told the judge she told my husband after court should my husband go back to court because of all this neglect and can the attorney be fired or replaced?
@virginia: Thanks for writing in again. I’m afraid this is out of my league, though. If the judge ordered the child to have a counsel, then my (non-legal advice) opinion is, the judge has to order the change. If I read what you are saying correctly, your husband and the child’s mother are sharing the cost, correct? And your husband is concerned the attorney is showing bias, right?
My thought is, cheapest thing first, is your husband should write a carefully worded letter to the court-appointed attorney stating his factual issues. Again, make this short, to the point and factual. Eeven terms like “bais” have no leagl meaning .. in every divorce and multi-parent case one side always winds up hating the other side, and throwing out accusations like “she lies”, won’t work … unless you cna actually document them. It sounds as if there is a very serious matter here. If the child the counsel is supposed to be looking out for was injured, and the judge was not informed, this could be a serious bit of malpractice on the part of the counsel. Again, i say ‘could”, becuase if it just becomes a he said/she said thing the judge is going to tend to say, “Ho hum, I’ve heard this all before.”
But of there is documentation the child was hurt, as in being taken to the Emergency room or to a doctor for treatment, then I think you husband ought to confront the lawyer, rationally and in writing, with a courtesy copy sent to the judge. Because from your account, this sounds like serious stuff and ought to be dealt with, quickly. No one should hurt a child and get away with it.
One think to think through also, and again, this is just personal advice, I am no lawyer, is that legally you, as wife number two and _not_ the child’s mother do not have a lot of what the lawyers would call legal standing … so stay on the sidelines and help your hubby and support him, but don’t get out in front on this issue so it appears to be a battle between wife one and wife two. Emotions will get charged up and people will focus on the wrong issues. As the father, your husband has the real power here, and he should use it wisely.
I hope is said something here that can help, God Bless you all.
Hello thanks for te comment back my husband does need to write a letter to the minors counsel he and his ex did share the atorney fee for their child and the attorney seems to belive all her lies she makes up about me especially and my husband she told the attorney she was jumped by me and my sisters it never happend and she has no proof the judge ordered her to pick up her son from school and this was her first visit with him in over a year and she started a fight with my 17 year old sister who was picking up my child for me while i was at a doctors appointment and they belived her we called law enforcment and they never made a police report we have pictures of my sisters face and the attorney didn’t want to see it and after that they gave his mother the right to change him to the school located by her home and since we are low income and dont own a car the judge let him live with her and he comes on the weekend its a big mess he was burned on his mothers stove and the attorney didnt bring it up in court and told my husband after court the child protective services was involved and his mother said she didnt know about it and the cps stated her story and her sons didnt match we belive she is lieing that she knew he is going to ask the judge to get these reports to prove whats going on it just seems the minors counsel isnt protecting the child but is covering up for the mother and its not right
Hi, I went back to court in march to ask for more custody of my twin boys who will 14 this october.Currently I have them every other weekend. The judge appointed minors counsel which has been a nitemare! for one it took weeks after the order was made to finally schedule an appointment with her. All was well in the beginning I told her about one of my sons behavior was him acting out in violence against me and perhaps he should have counseling. I know she is not an expert in this field but previous court orders said that would be in the best interest of the children which has never been done. Back in 2000 I had a 4 year restraining order against my ex and told her I am starting to see violence repeat itself. Bottom line she filed an ex parte orders to show cause and is accusing me of an alchol issues which the court found that I take several classes and since all have been adhered which I have documentation to prove and mind you that was well over 6 years ago. My other son she realizes we have a good relationship however I am retrained from seeing him until mid october. She has only met with my children one time from what they told me. before she filed the ex parte she notified me by telephone so I immediately went down to superior court and filed a response and also filed for her to be removed from counsel. Was that the right thing to do? What forms do I need to respond to this outrageous issue! I am so furious! All I wanted to do was see my children more and now I’m going to trial to fight for my kids! Had I known it would end up like this I would have asked the judge to explain why she was appointed. please help!
Maryjane Denicore » Thanks for reading and for writing in with a question/comment. However, I am afraid you’ve come across one of the common issues of blogging today … the guest post.
The article you are commenting on was contributed by Attorney Jon D. Alexander, Esq. His website and contact info are at http://oc-familylawyers.com/. I’m not qualified at all to comment on these critically important and often perplexing and painful child custody type question, sorry I can’t be of more assistance.
What do I do with a Minor’s Counsel that asks for things that are not on her Ex Parte, has the ex’s BF be a witness and subpoena other witnesses and had admitted to taking gifts from “winning” parents?
My OSC to have MC removed is April 10th in Pasadena
dad in peril
dad in peril » Don’t you have an attorney? It would appear you badly need one. Godspeed.