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Minors' Counsel Part III: The Conversion of Our Plans into Actions

By Frieda Gordon, CFLS

Los Angeles County

Commencing for one day in May of 1996, in San Juan Capistrano, and continuing for three days in Cambria in 1997, judges, lawyers and therapists put aside their daily responsibilities to their families and their work to gather together from all over the state to share their experiences, bad and good, in custody cases where an attorney has been appointed to represent a minor child. Initially as a forum for comparing their war stories, this group of dedicated individuals spent some serious time in breakout sessions brainstorming as to how to correct the myriad of problems which had arisen as the result of the implementation of the legislation creating the statutory judicial discretion to provide independent representation to children caught in the fray of their parents' custody war. These meetings, titled colloquia, were sponsored by the Association of Certified Family Law Specialists. The results so far have been (1) to obtain several very important amendments to Family Code Section 3150, which took affect in January 1998; (2) to have the Judicial Council study our proposals to create by Rules of Court more neutral methods of payment of minor's counsel (3) to work with the Judicial Council Juvenile and Family Law Advisory Sub-Committee establish statewide guidelines relative to the minimum qualifications and training requirements for the appointment of minor's counsel; and, (4) and to have the State Assembly Committee on the Judiciary legislative staff draft proposed bills for an author to carry in the next legislative session. Unfortunately, the Assembly person who had given the nod for carrying these bills at the last minute found herself overloaded with bills coming from every direction due to the change in the political climate in Sacramento last November and our bills are still in search of authors.

Although members of the ACFLS Minor's Counsel Committee are still trying to attach some of their proposed legislation to an existing bill, the reality is that these bills will most likely be carried in the next legislative session for the year 2000.

The dialogue between the experienced litigators, mental health professionals and judicial officers in the custody arena has been a wonderful method of identifying the changes which clearly needed to be made and how and where those changes should be implemented. As those of us who practice in the custody arena are well aware, the pitfalls and disappointments of this area of practice, coupled with the threat of being sued and the difficulties in getting paid a reasonable fee is making it increasingly difficult for the experienced, educated and temperamentally suited attorney to continue to be appointed. Much clarification to the law has already been accomplished. Some changes are in the final stages of implementation. Yet there is still much to be done to attract competent counsel to this very, very important area of practice. Namely, there must be uniformity in the practice among judges as to how they designate the duties of minor's counsel, how they interpret the statutes concerning the circumstances under which they should appoint, and, among the counties, as to how the statutes are to be implemented from a fiscal perspective. These are now the topics for our third Colloquium to be held in late summer or early fall in Santa Clara County.

This event is being planned as a Friday night cocktails and hors d'oeuvres get together, a full day on Saturday of fleshing out of the remaining issues for the effective use of minorês counsel and the formulation of resolutions, the framing of which will be the central pull of the half-day event on Sunday. There will be an assignment of small cross-disciplinary groups to attend different restaurants in the area in order to continue the dialogue of improving the concept of child advocacy in our court system. We are hopeful that the event will attract a significant number of participants and not just those who have been minor's counsel, or attended in the past, but those of us who, in our practice, may have or will in the future have a case in which the issue of the appointment of minor's counsel will undoubtably arise.

The need for our efforts is very clear. At the very least, the Judicial Council must be made to understand the importance of the establishment of uniform guidelines as to how to administer the appointment of minor's counsel. For example, in a resolution urging the Judicial Council to adopt a Rule of Court that sets up some acceptable alternative methods which would fit the needs of the individual county, according to its size and budget, our group could suggest the implementation of the San Diego policy whereby the Superior Court judicial secretary administrates the panel of qualified attorneys from which the judicial officers choose three. The attorneys or parties then have the opportunity to eliminate one, leaving the remaining candidate to be appointed. Another policy worthy of adoption from San Diego County is one whereby the judicial officer makes an order at the first hearing that a wage assignment be issued for payment of attorneys' fees to the child's attorney or, as in Kern County, that the County pay the attorney's reasonable fees and then bill the parents according to their ability to pay. A resolution that the Judicial Council adopt Ventura County's policy of permitting direct access to all DCS and police reports, as it would in Dependency Court, might be the result of this weekend adventure in Santa Clara.

The resolutions developed and passed by the representative membership of ACFLS would then be delivered to the Judicial Council Family and Juvenile Law Advisory Sub-Committee, legislative counsel for both the Senate Committee on the Judiciary and the Assembly Committee on the Judiciary, all interested legislators and their staff members, the State Bar Resolutions Committee and Family Law Section Custody Committees North and South and, of course, published in a later edition of the ACFLS Newsletter and on our website. These resolutions will be a helpful and valuable tool for the willing sponsors of our presently camera-ready proposed bills and any newly proposed bills that arise from our discussions at the next colloquium.

We have previously explored the disfavor which minor's counsel has received due to the lack of understanding of what the role of the attorney for a minor child is, i.e., interviewer, creator of parenting plan, investigator, reporter, etc. It is clear that, although the attorney needs to be an advocate for the expressed preference of the child, he or she can also independently provide evidence to the Court and make specific recommendations. Thus, the attorney can act as a collaborator and consultant to the Court and participate in mediation without violating any ethical duties to her or his client. Primary among the needs of the child who is represented is to have his or her attorney immune from suit by this or her parent on the child's behalf as guardian at litem. There is a basic conflict of interest which gave rise to the need for the appointment of an attorney for the child in the first place. A custodial parent coming in as a guardian of the childs best interests is both false and dangerous, giving the parent the power to eliminate the child's independent voice. There are avenues in place for the removal of minor's counsel by motion. This procedure needs to be codified. Another resolution which will be considered is to have the legislature clarify how a child or a parent can petition the Court for the independent representation of the child.

The inherent battle for control between a parent and an "outsider" over the child's "best interests" is a minefield for the litigants, the judge, the attorney and the child. Instead of putting an end to the litigation and the unholy stress that the battle places upon the child, it fosters and festers litigation by the very nature of the task the attorney was assigned to do, i.e., take away some of the authority which all parents assume is their natural birthright as a parent, regardless of what actions they have taken which have done significant and permanent harm to their child, most of which ten attorneys for the child will never be able to prove to the parent that it has actually occurred. Continuing education is paramount in this area of the law. It is very exciting to be able to look forward to another productive, rewarding and fun weekend where we can commiserate with our peers while finally beginning the process of clarifying the rules and policies relative to the appointment of minors' counsel on a statewide basis.