You have the right to remain silent. You have the right to confront witnesses against you. Yeah, yeah, yeah. You’ve heard that all before on television.
But do you have a right to make sure some lawyer isn’t questioning your kid or telling the judge what your kid thinks about your divorce? Apparently the answer is no, according to a published opinion by the California Court of Appeal in Los Angeles.
Ruling unanimously, the justices in the case of Marriage of Metzger ruled earlier this month that an order appointing minor’s counsel did not violate the constitutional rights of the father of the child.
This case involved a child who is about ten, maybe 9, right now. The mother filed for divorce when the girl was about five. The mother also thought that the child might have autism.
The father opposed the request, but last year, the trial court ordered the father to advance $100,000.00 for an attorney for the minor. $50,000.00 was supposed to be charged against each party’s share of the community estate. The minor’s counsel in question was not just a lawyer; she also had a master’s degree in Fornesic Psychology and had herself an autistic child for a daughter.
The dad said the court’s order interfered with his constitutional right to determine with whom the child should associate. The appeals court said that if there is a compelling state interest, the court may intervene even if there is some effect on the parent’s constitutional rights. As the court explained, “[w]hen the trial court appoints minor’s counsel, such counsel cannot adequately represent the child’s interests without meeting wth the child in order to interview and observe her”.
The father argued that the mere order to pay $100,000.00 was wrong because he wanted to use this money for the daughter’s college education and he had a constitutional right to direct and provide for the child’s education. The Court of Appeal simply responded “[t]he payment of minor’s counsel’s fees in a custody dispute does not in any way restrict the kind of education a child may receive or affect a parent’s right to direct that education”.
That explanation is not really satisfactory because when a person is divested of money, necessarily the educational options for his or her child become restricted. But a bigger problem is the appeals court’s reaffirmation of the minor’s counsel system in California.
Sometimes my clients want minor’s counsel involved. They think a judge will listen more closely to minor’s counsel and minor’s counsel is more apt to agree with the position of the client than with the position of the other parent.
But having minor’s counsel appointed can be humiliating. No parent wants to hear a child say that he or she does not have to listen to mom or dad because of what minor’s counsel said. Further, everything the parents say is going to be parroted by the child or children to the attorney.
The best way to avoid this situation is to try to get along with one another, even during a divorce. If there are differences, mediate them or simply choose your battles so that the court does not throw its arms up in the air and ask an attorney with experience in representing children to join the battle.
It’s not easy, but having minor’s counsel on your tail is not easy either.