The Duties and Responsibilities of Minor's Counsel Under Family Code Section 3042

• Jurisdiction: California,United States
• Author: Stephen D. Hamilton
• Publication year: 2018
• Citation: Vol. 40 No. 1

The Duties and Responsibilities of Minor's Counsel Under Family Code Section 3042

Stephen D. Hamilton

Stephen D. Hamilton has been an attorney for 22 years, with a practice devoted almost exclusively to family law for 20 of those years. He has been a Certified Specialist in Family Law since 2004. He is currently a member of the California Family Law Executive Committee, for which he is the Legislation Chair. He is a member of ACFLS and serves on the ACFLS Outreach and Amicus Committees. He is also chairperson of the San Luis Obispo County Family Law Section.

Introduction

In March of 2017, I co-authored and moderated a webinar with the Honorable Timothy Staffel of the Santa Barbara County Superior Court (available through the Family Law Section's MCLE on demand). The program addressed the issues raised by California Family Code section 3042, the statute that requires consideration of a minor's preferences regarding custody and visitation. This article focuses on how to carry out your obligations as counsel for a minor when your client has a custodial preference. Your duties and responsibilities are set forth under both section 3042 and the Rules of Court.

How Old Is Your Minor Client?

Minor's counsel obligations under Family Code section 3042 start with a simple inquiry: how old is your client? Under section 3042(c), if your client is fourteen years of age or older and wants to address the court regarding custody or visitation, he or she must be permitted to do so unless the court makes a finding that to do so would not be in the child's best interests. The court must state its reasons for that finding on the record.

If your minor client is under fourteen, that does not prevent the court from considering his or her preferences. As a practical matter, a court would be hard pressed not to consider the preferences of a stable, mature thirteen-and-one-half-year-old who is getting good grades in school. The authority to consider the custodial preferences of a minor who is less than fourteen years old is found in Family Code section 3042(d), which states that nothing in the section precludes the court from considering the preferences under fourteen years old if the court determines that it would be appropriate to do so "pursuant to the child's best interests."

Your Client is Old Enough, But You Do Not Agree with Their Preferences

If you have already been appointed as minor's counsel and learned from your client that he or she wants to address the court, Family Code...