Wednesday, May 27, 2009

Courts Can Order Counseling & Minor's Counsel, Not Therapy

By Jon D. Alexander, Esq.

My name is Jon D. Alexander, Esq. and I am an Orange County, California Divorce Attorney. This article is the eighth article in a series outlining the divorce process in California. Please be aware that this article is not intended as and should not be relied upon as legal advice or as the creation of an attorney-client relationship.

Today's article explains, briefly, counseling under Family Code Section 3190. This section provides instruction on counseling of parents and children. Generally, in a family code proceeding regarding custody or visitation, the court can order any or both parties and the children into outpatient counseling with a mental health professional and if a necessary a substance abuse program.

The factors considered when determining whether such an order is necessary are: (1) a finding that the counseling is in the best interests of the children and that the disagreement between the parties (parents), will be a substantial danger to the best interests of the child if it is not alleviated by counseling; and (2) In the past five years there has been an incidence of domestic violence.

A family court may only order counseling that lasts up to one year. However, this one year limit is renewable. Court must also determine that counseling will not be an undue financial burden. You might remember from previous articles in this series, that family law court Judges are not authorized by statute to order parents or children into therapy (but a juvenile court can order therapy).

There are Minor provisions in the family code that govern appointment of minor's counsel. Family Code Section 3150.1 authorizes the family court to appoint a lawyer for the child if it's in the best interests of the child. The appointed attorney represents the child during a custody or visitation proceeding. Minor's Counsel's duties include (1) interviewing the child; (2) Reviewing files and records of the parties; (3) Conducting reasonable, necessary investigation; (4) locating and offering witnesses besides the parties (parents) to the case on the child's behalf; (5) Representing the child and arguing on behalf of the child's best interests; (6) in sum, Minor counsel represents the child just he would any other client.

Minor's Counsel has the ability to veto examination of the children even without a court order. And Minor's Counsel determines who may claim certain privileges that belong to the child. Minor's Counsel speaks for the child but also is bound to act in the best interest of the child and must convey the child's viewpoint to the court. This means that Minor's Counsel must report that, for example, the child wishes to live with Mom, but Minor's Counsel must also report whether this would be in the best interests of the child.

Keep in mind that Minor's Counsel is not an expert, like an evaluator, and isn't required to be. And if the attorney does present the best interests analysis, they are not required to submit to cross examination regarding his analysis. Minor's counsel can, however, interview others like care providers and mediators in order to reach his evaluation.

Under family law code Section 3151 at the court's direction Minor's counsel will be required to prepare a written statement of issues and contentions that explain the facts relevant to the best interests of the child. These statements usually contain a summary of information received from care providers, a list of the sources, results of the investigation, and other issues or facts relevant to the analysis.

There is no law on point that requires Minor's Counsel to be subpoenaed to testify in court. There is, however, an older case (McLaughlin) that is instructive regarding this issue. Theoretically, McLaughlin could be used to make an such an argument if a case involving Minor Counsel be required to testify is heard by an appellate court. In McLaughlin, a mediator made recommendations against a parent in a confidential mediation county. The mediator was subpoenaed and relied on the local rule which said he wasn't required to testify. The trial court ruled that the mediator need not testify. However, the Appellate Court reversed, forcing him to testify and be subject to cross examination. The Appellate Court held that there were constitutional issues involved and would not allow the mediator/witness to provide information to the court without be subject to cross examination.

So it would be possible for a party's counsel to argue that Minor's Counsel should be forced to testify and be subject to cross examination, using McLaughlin as precedent. Note, that while Minor's Counsel can claim this privilege to avoid testifying, but he can also waive it in favor of testifying.

In my next article, we will explore some interesting Minor's Counsel/Children issues and we will look at Parent's constitutional rights in the context of Divorce proceedings including some relevant and interesting case law. In the meantime, if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at

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1 comment:

Alex said...

Minor’s Counsel California
A very good and informative article indeed . Nice post Dude keep it up. I have appreciate with getting lot of good and reliable and legislative information with your post......