Minor’s Counsel – Protecting Children’s Rights in Family and Probate Court

Minor’s Counsel – Protecting Children’s Rights in Family and Probate Court

As this issue of The Contra Costa Lawyer is devoted to “children’s rights,” it seems appropriate to explore what their rights are when family members can’t agree on who gets to make decisions about the child’s health, education, and welfare; where the child will live; with whom the child will live; how much time the child will spend with other members of the family. These are the issues addressed by the Family Law and Probate judges every day. The Family Law court is where these disputes between the parents get resolved; Probate court is where guardianship cases are heard; grandparents and other “interested parties” seeking guardianship alleging that they are the best candidate to raise child due to the parent(s) untimely death, substance abuse, or other destabilizing factors. Parents and other “interested parties” may dispute the petitioner’s request; either denying the allegations or opposing the proposed guardian.

When these disputes get messy, the courts are authorized to appoint minor’s counsel to represent the child’s best interests before the court. While both courts are charged with making decisions in the child(ren)’s best interests, each of these courts have somewhat different perspectives in approaching the custodial issues before them. The family court starts with a presumption that every child needs frequent and continuing contact with both parents and that both parents are adequate custodians. The probate court only gets involved when there is an allegation that the child needs an appointed guardian because of the absence or inadequacy of the parent or parents. And, importantly, the minimum education and experience requirements of counsel to qualify to serve as minor’s counsel are set forth in CA ROC 5.240 & 2.542 pursuant to Fam. Code Sect. 3150 and CA ROC 7.1101 (b) 1, (f-h) pursuant to Probate Code Sect. 1470 & 1471.

Therefore, at my request, Jim Paulsen, Director of Family & Probate Services, interviewed a Family Law Judge, Terri Mockler, and the Probate Judge, John Sugiyama, regarding the rights of children in their respective courts and the role of minors’ counsel. What follows is a summary of Mr. Paulsen’s interviews with Judges Mockler and Sugiyama.

What are some of the common concerns or fact patterns that prompt you to appoint minors counsel?

Judge Mockler:
a. Two parents who are significantly distressed, have few resources and are saying very different or divergent things about their children.
b. Both parents are typically coping with external (little money, little family support, unstable housing, etc.) and internal (substance abuse, mental health, immaturity/lack co-parenting skills) challenges.
c. It has been my experience that cases involving even one attorney rarely need minors counsel, because the attorneys here in Contra Costa are helping their clients attend to the needs of the children even when there are significant disputes about custody/visitation. Attorney involved cases also typically mean there are resources to secure therapy for the children and other services to help mitigate the trauma of divorce and parental conflict.

Judge Sugiyama: It is my practice to appoint minors counsel:
a. If the petition or information uncovered during investigation process prompts a referral to Children and Family Services;
b. If there are any questions or concerns raised about a petitioner’s criminal history or child welfare history compromising the petitioner’s ability to function as a safe and nurturing guardian;
c. If either parent is contesting the guardianship;
d. If any significant dispute arises between the interested parties about access to the children (e.g. visitation) during the preceding or post-guardianship;
e. If there are competing petitions;
f. If the parent of the child(ren) is a minor, I appoint a GAL for that parent;
g. If termination of parental rights is contested, a minor’s counsel is appointed for the child(ren).

What do you consider when appointing a free court-paid minors counsel as opposed to privately paid counsel?

Judge Mockler: Typically the parents have very low or no income. Again, those cases with attorneys typically do not need minors counsel. The family law judges can only appoint 4 court-paid minors counsel per year. Any additional appointment requests must be escalated to the supervising judge. I cannot stress enough how valuable minors counsel services are. I would appoint more if there was available funding.

Judge Sugiyama: It is my practice to appoint minors counsel through the court-paid program.

What are two or three most appreciated attributes of effective minors’ counsel?

Judge Mockler:
a. Personally meet their clients to establish a rapport and develop the attorney-child client relationship.
b. Helping the court to understand the child’s current developmental, health, emotional, educational etc. needs while also advocating for their client’s rights and legal needs. Descriptions of the child and or current circumstances without any context are much less helpful to the court.
c. An investment in the client’s needs while also always remembering the needs of the judicial officer.
d. Remaining engaged and attentive without losing a broader perspective and/or becoming enmeshed.

Judge Sugiyama:
a. An ability to not only consider and address the child’s immediate needs but also consider and plan for the child’s needs into adulthood;
b. An ability to work cooperatively with all parties and extended family members;
c. Recommendations and context are always appreciated when sharing information about a child, but minors counsel must also be able to accept and even incorporate a judicial officer’s differing assessment or plans into their continued representation of a child. The judge is not always going to agree.

Are children parties to the action in your court?

Judge Mockler: No.

Judge Sugiyama: Though generally not a litigant, Probate Code 48 designates children as interested persons.

What rights to do children have in your court?

Judge Mockler:
a. The right to have the court make decisions in their best interest.
b. The right to voice preferences, but only as prescribed by statute.
c. Children are never to be compelled, coerced or bribed into voicing a preference about custody/visitation.

Judge Sugiyama:
a. PC 1511 – minors over 12 must be served with all documents required to be served on adults.
b. PC 1513(a)(3) – “…and a statement of the proposed ward’s attitude concerning the proposed guardianship, unless the statement of the attitude is affected by the proposed ward’s developmental, physical, or emotional condition.”
c. PC 1514(e)(1) – “The court is to be guided by what appears to be in the best interest of the proposed ward, taking into account the proposed guardian’s ability to manage and to preserve the estate as well as the proposed guardian’s concern for and interest in the welfare of the proposed ward. (2) If the proposed ward is of sufficient age to form an intelligent preference as to the person to be appointed as guardian, the court shall give consideration to that preference in determining the person to be so appointed.”
d. PC 1510(a) – “A relative or other person on behalf of the minor, or the minor if 12 years of age or older, may file a petition for the appointment of a guardian of the minor.”

What rights of children are you concerned about protecting?

Judge Mockler:
a. The right to be a child

  • Not to be triangulated into parental/family disputes.
  • Not to be manipulated, exploited, ignored by adults responsible for raising, educating and supporting them.
  • Not to be asked to decide how they are to be parented or raised.

b. The right not to be abused or neglected (including emotional abuse and neglect)
c. The right to be physically and emotionally safe
d. The right to an adequate education
e. The right to adequate healthcare
f. The right to have their psychological, developmental and special needs adequately addressed and/or treated

Judge Sugiyama:
a. The right to stability.
b. The right to have not only current needs addressed and attended to but also to have a stable and safe home environment and stable primary caregivers for the duration of childhood.

The importance of minor’s counsel in these disputes cannot be over emphasized. The courts are charged with making decisions that will have a lifetime impact on these children’s lives. Minor’s counsel is often the only way that courts can receive evidence about the child and his/her family from that an attorney charged solely with presenting evidence purely focusing on the child’s needs, not the needs/desires of the competing adults. While it is true that minor’s counsel is required to have specific education and significant experience beyond the norm in order to be appointed to represent a child for a fee that is a fraction of what s/he can charge as a general family or probate attorney, the non-financial rewards are beyond measure.