Generally in divorce or paternity cases (cases where there is a child/children but no marriage), the parties battle over custody and/or visitation. Oftentimes, it is very difficult for the bench officers to make custody/visitation orders based on the “he said/she said” paperwork filed by the parties. Under Family Code, Section 3042, if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody. But how is the court to determine if the child is of sufficient age and capacity to reason? Certainly, you do not want your child testifying in the courtroom, even if the bench officer would allow it (generally they do not). This is where Minor’s Counsel involvement can come into play. Family Code, Section 3150, states, in pertinent part, that if the court determines it would be in the best interest of the minor child(ren), the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding. The attorney is appointed by the Court and is charged with the representation of the child(ren)’s best interest. Their role is to gather facts that bear on the best interest of the child(ren), and present those facts to the Court. This may include the minor’s attorney to interview the child(ren), interview relevant witnesses, review the court files, and make any further investigations as minor’s counsel considers necessary to ascertain facts relevant to the custody or visitation hearings. However, Minor’s Counsel’s involvement does differ from what one commonly thinks when hearing someone say they have a lawyer. While it is important what the client’s (minor child) wishes are, they are not controlling. Why? Minor’s Counsel is charged with the minor’s best interest. Obviously, if it is the child’s wishes to live with one parent over the other because the other parent does not make the child go to school and basically allows the minor to do whatever they want, clearly that would not be the child’s best interest.
If you have a case that you believe a Minor’s Counsel may be of assistance, ask the judicial officer to appoint a Minor’s Counsel.
For more information about this and other family law topics, contact The Reape – Rickett Law Firm, at 661-288-1000 and visit DivorceDigest.com to learn more.