Family Law

Family Law News 2018, Issue 2, Volume 40, No. 2

NeverLand Practice: Representing Minor Children

B J Fadem

B J Fadem has been practicing law since 1985. He has been certified by the State Bar of California as a specialist in family law since 1999. He has been the senior attorney of The Law Offices of B J Fadem & Associates, APC since 1991. He is the former chair of the Family Law Section of the Santa Clara County Bar Association and is currently the chair of the Family Law Legislation Committee – Family Law Education Committee and Diversity Committee for the SCCBA. He has served on the Family Law Executive Committee of the State Bar of California. Mr. Fadem is one of the few attorneys that practice in the area of international family law jurisdiction, including Hague proceedings. He has been representing minor children in family law proceedings for over 25 years. He has presented numerous classes and seminars in all areas of family law, including inter-state and international jurisdiction, The Hague Treaty, representing minor children. His passion is his international practice and serving as minors’ counsel in high conflict family law matters.

Amidst the chaos and turmoil that we call "family law," the truly innocent victims and casualties in the war of dissolution are the minor children. More often than not, they are caught in their parents’ bitter battle for control. In high-conflict matters, the courts will often appoint attorneys to represent the minor children. I have been such minor’s counsel for more than twenty-eight of my thirty-two years of practicing. I can unequivocally declare that the children are my absolutely favorite clients, but these are the most challenging cases.

Family Code § 3150(a) authorizes the court to appoint counsel for minor children. It states that "(i)f the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and 5.242 of the California Rules of Court." In considering such an appointment, the court contemplates and weighs several factors: (1) Whether the custody and visitation issue is highly contested; (2) Whether the child(ren) are being subjected to stress as a result of the parents’ dispute and the intervention of minor’s counsel might alleviate such stress; (3) Whether minor’s counsel could provide the court with relevant information not otherwise easily available or likely to be presented to the court; (4) The dispute involves allegations of physical, emotional, or sexual abuse or neglect of the child(ren); (5) "It appears that one or both parents are incapable of providing a stable, safe, and secure environment;" (6) Counsel with knowledge of the issues raised regarding the child is available for such appointment; (7) The best interest of the child appears to require such independent legal representation; and (8) If there are two or more children, whether such representation would require the appointment of separate counsel to avoid any conflict of interest.1

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