Minor’s Counsel in California Custody Cases: What the Child’s Attorney Does and Who Pays

In a contested custody case, each parent argues for an outcome. California law gives the court a way to appoint an attorney for the child, whose assignment is the child’s best interest. That attorney is called minor’s counsel, and the appointment shapes how the case runs: who gathers evidence, what the court hears, and how the cost is shared.

Under Family Code §3150, the court may appoint private counsel to represent a child in a custody or visitation proceeding when it determines the appointment is in the child’s best interest. The decision belongs to the court, and both the court and appointed counsel must follow Rules 5.240 through 5.242 of the California Rules of Court.

When a Court Considers Appointing Minor’s Counsel

Rule 5.240 lists factors the court should take into account, including whether:

• Custody and visitation issues are highly contested or protracted

  
  

• The child is under stress from the dispute that counsel’s involvement might relieve

  
  

• Counsel would likely give the court relevant information it would not otherwise receive

  
  

• The dispute involves allegations of physical, emotional, or sexual abuse or neglect

  
  

• One or both parents appear unable to provide a stable, safe, and secure environment

  
  

• Siblings need separate counsel to avoid a conflict of interest

  
  

The court can appoint counsel on its own motion or at the request of a parent or a parent’s attorney, the child or a relative, a mediator, a custody evaluator, a guardian ad litem, certain prosecuting agencies, or anyone else the court considers appropriate. The court issues a written order naming counsel and the child. That order can also define the issues counsel will address, set counsel’s rate, and divide the fees between the parties.

What Minor’s Counsel Does

Family Code §3151 charges minor’s counsel with representing the child’s best interests. The role is to gather evidence that bears on those interests and present that admissible evidence to the court the way counsel for a party would. Counsel’s duties include interviewing the child, reviewing the court file and relevant records, and conducting whatever further investigation counsel considers necessary. To do that work, the statute gives counsel:

• Access to the child and the child’s records: reasonable access to the child, plus medical, dental, mental health, and school records, and the right to interview teachers, caretakers, health care providers, and therapists who have assessed or cared for the child.

  
  

• Full participation in the case: notice of every phase of the proceeding, standing to seek relief on the child’s behalf, and the ability to file pleadings, present evidence, make objections, and take part in settlement conferences, trial, and appeals.

  
  

• Control over privileges and examinations: the right to assert or waive privileges for the child, to receive advance notice of and decline any physical or psychological examination or evaluation for purposes of the proceeding that the court has not ordered, and to seek an independent evaluation with court approval.

  
  

The Child’s Best Interest and the Child’s Wishes

Minor’s counsel represents the child’s best interest. Under §3151, when the child wants their wishes presented to the court, counsel presents them. Those two can point in different directions. A child may prefer one living arrangement, and counsel can present that preference to the court while advocating a different arrangement based on the evidence. Minor’s counsel advocates a position. The judge makes the custody decision.

The statute assigns counsel a role broader than spokesperson. Counsel weighs the child’s voice alongside the records, the interviews, and the rest of the investigation.

Minor’s Counsel Participates as an Attorney

Section 3151 provides that minor’s counsel shall not be called as a witness. Counsel can introduce and examine witnesses, argue about the child’s welfare, serve pleadings on the parties, and participate in the case to the extent needed to represent the child.

That role is separate from a child custody evaluation. Under Family Code §3111, the court may appoint a child custody evaluator who, when the court directs, files a written report on the evaluation. That report is served on the parties and on any counsel appointed for the child. A case can have both an evaluator and minor’s counsel, each serving a different function.

Who Pays for Minor’s Counsel

Under Family Code §3153, appointed counsel receives a reasonable sum for compensation and expenses, in an amount the court determines. The parties pay that amount in the proportions the court considers just. If the court finds that both parties together cannot pay all or part of the cost, the county pays the portion they cannot.

Rule 5.241 directs the court to set compensation at the time of appointment or within a reasonable time afterward, considering the parties’ income, available assets, and eligibility for a fee waiver. The court can revisit compensation within 30 days after counsel is relieved, and it must inform the parties that unpaid fees may lead to collection action.

In a protracted case, those fees accumulate alongside each parent’s own legal costs. Raise the fee allocation at the appointment hearing. An appointment order can split fees between the parties, assign payment to one parent subject to reimbursement, set installment terms, and reserve the court’s ability to adjust the allocation later.

How Long the Appointment Lasts

Once counsel appears for the child, the appointment continues until the proceeding concludes, the court relieves or substitutes counsel, the court removes counsel for good cause, or the child reaches adulthood or is emancipated. Rule 5.240 also requires each court to maintain local procedures for complaints about appointed counsel’s performance. The Judicial Council’s information sheet on attorneys for children (form FL-323-INFO) summarizes the process for parents.

Working With Minor’s Counsel

Treat counsel as part of the case from the first contact. Respond promptly to requests for records, schedules, and information about providers and schools. Let the child speak with counsel in their own words. Raise concerns about counsel’s performance through the court’s complaint procedure or a request to remove counsel for good cause.

Whether to request minor’s counsel is also a strategic question. An appointment adds an attorney representing the child’s best interests and another set of fees, and its value depends on what the court would otherwise hear about the child.

Discuss Your Custody Case

The Law Office of James Chau represents parents in child custody matters throughout San Jose and Santa Clara County, including cases where the court appoints counsel for the child. Call the office or use the contact form to discuss whether requesting minor’s counsel fits your case, or what an existing appointment means for your next hearing.

Phone: 408-899-8364

Address: 2114 Senter Road, Suite 5, San Jose, CA 95112