The Role of Minor's Counsel in Family Court Proceedings
(September/October 2001)

By: Bonnie R. Benitez
Former CAMFT Attorney

Therapists who treat children caught in the middle of a custody dispute are often contacted by attorneys. Typically, therapists will want to avoid engaging in any communication with the attorney of either parent (for reasons discussed in "Avoiding the Good Mom/Bad Dad Trap," page 18 or the July/August 2001 issue of The California Therapist). However, there is one attorney therapists should communicate with, minor's counsel, an attorney specifically appointed by the court to represent the child's interests.

Minor's counsel is appointed if the court determines that it would be in the best interest of the child. This attorney does not represent the interests of either parent; rather he/she represents the interests of the child in a custody or visitation proceeding. Once appearing on behalf of the child, minor's counsel will continue to represent the child unless relieved by the court or for cause.1

Duties of Minor's Counsel
Minor's counsel is charged with the representation of the child's best interests. His/her role is to gather facts that bear on the best interests of the child, and present those facts to the court, including the child's wishes when counsel deems it appropriate for consideration by the court. The duties of minor's counsel include interviewing the child, reviewing the court files and all accessible relevant records available to both parties, and making any further investigations as the counsel considers necessary to ascertain facts relevant to the custody or visitation hearings.2

At the court's request, minor's counsel will prepare a written statement of issues and contentions setting forth the facts that bear on the best interests of the child. The statement sets forth a summary of information received by counsel, a list of the sources of information, the results of the counsel's investigation, and other matters as directed by the court. The statement is filed with the court and submitted to the parties or their attorneys of record prior to the hearing, unless the court orders otherwise.
Minor's counsel can introduce and examine witnesses, present arguments to the court concerning the child's welfare, and participate further in the proceeding to the degree necessary to adequately represent the child.3

Rights of Minor's Counsel
Minor's counsel has the following rights:

  • Reasonable access to the child.
  • Standing to seek affirmative relief on behalf of the child.
  • Notice of any proceeding, and all phases of that proceeding, including a request for examination affecting the child.
  • The right to take any action that is available to a party to the proceeding.
  • Access to the child's medical, dental, mental health, and other health care records,4 school and educational records, and the right to interview school personnel, caretakers, health care providers, mental health professionals, and others who have assessed the child or provided care to the child.
  • The right to reasonable advance notice of, and the right to refuse any physical or psychological examination or evaluation, for purposes of the proceeding, which has not been ordered by the court.
  • The right to assert or waive any privilege on behalf of the child.
  • The right to seek independent psychological or physical examination or evaluation of the child for purposes of the pending proceeding, upon approval by the court.

Therapists working with children should be aware that no authorization from either parent is required prior to the disclosure of information to minor's counsel. Once minor's counsel is appointed by the court, he/she is entitled to any and all mental health records regarding the child. Moreover, minor's counsel has the right to interview any health care provider in an effort to determine what is in the best interest of the child.

Minor's Counsel's Access to Child Abuse Reports
Minor's counsel can also request that the court authorize the release of relevant reports or files concerning the child from the relevant local child protective services agency. If such an authorization is granted, the court will review the reports or files in camera in order to determine whether they are relevant to custody or visitation, and whether and to what extent they should be released to minor's counsel.

Communication with the parents' attorneys
While minor's counsel has the right to access a therapist's records and interview the therapist, no such right exists for the parents' attorneys. A therapist who is treating a child in the midst of a custody battle should not communicate with either of the parents' attorneys. If contacted by an attorney representing a parent, the appropriate response would be to politely inform the attorney that you are unwilling to communicate with him or her. For example, if a therapist receives a message from a parent's attorney on his or her answering machine, he or she could simply return the call stating: "I am responding to your message as a professional courtesy, however, I am unable to discuss any of patients that I may or may not have with you at this time." You can avoid these problems by having a standing office policy that states: "Information regarding your treatment will generally not be released to any third party, however, I do respond to subpoenas as required by law."

It is important for therapists to be cognizant of the role of each of the players involved in a custody dispute. Although treating therapists should generally steer clear of any communication with the parents' attorneys, contact between a treating therapist and minor's counsel can be a key component in a successful resolution of a custody dispute.

1Family Code section 3150
2Family Code section 3151
4Id. The release of information to counsel does not constitute a waiver of the confidentiality of the reports, files, and any disclosed communications

This article appeared in the September/October 2001 issue of The California Therapist, the publication of the California Association of Marriage and Family Therapists, headquartered in San Diego, California. This article is intended to provide guidelines for addressing difficult legal dilemmas. It is not intended to address every situation that could potentially arise, nor is it intended to be a substitute for independent legal advice or consultation. When using such information as a guide, be aware that laws, regulations and technical standards change over time, and thus one should verify and update any references or information contained herein.
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