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Ask the Expert

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David E. Rickett: Your child can have an attorney

Posted: July 23, 2009 10:14 p.m.
Updated: July 24, 2009 4:55 a.m.
 

Generally in divorce or paternity cases (cases where there is a child(ren) 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?

Is the child to come into the courtroom, in front of his/her parents and the general public, and answer questions by attorneys?

Or is the child supposed to sit down at the dinner table and write the judge a letter regarding where the child wants to live and why?

The answer to both is, of course, no. While the law gives the wishes of a child weight in making a custody order, how to get this information, as well as other necessary information before the court for its consideration of all relevant information prior to making a custody/visitation order that is in the best interest of the minor child(ren), 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.

A lawyer advocates for their client.

Sometimes, this means that the attorney is advocating for what the client wants rather than what the attorney recommends for the client.

However, this is not the case with minor's counsel. 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. It may facilitate and resolve your case in a way that is in your child's best interest, which in the end, is what we all want for our children.

For more information about this and other family law topics, contact The Reape-Rickett Law Firm, at (661) 288-1000 Web Site: www.DivorceDigest.com. David Rickett's column represents his own views, and not necessarily those of The Signal. "It's The Law" appears Fridays and rotates between members of the Santa Clarita Valley Bar Association. www.SCVBar.org. Nothing contained herein shall be or is intended to be construed as providing legal advice.

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