By M. Jude Egan, Ph.D., J.D., Certified Family Law Specialist — Egan Law, Santa Maria, California
The judge in your custody case has just appointed — or the other side has just proposed — something called “minor’s counsel” for your child. What does that actually mean? Is this person a lawyer for your child, an investigator, an evaluator, a referee? Who pays for it? And how much influence will this person have over where your child lives?
These are the right questions, and they deserve straight answers. I have spent years on every side of this issue: I have served as court-appointed minor’s counsel, litigated against minor’s counsel on behalf of parents, and taught continuing legal education on the subject. This is the first of a three-part series on what minor’s counsel is, what the law says minor’s counsel may do, and the gap — a real one, in my experience — between the formal role and the practical power.
What Family Code § 3150 Provides
Family Code § 3150 authorizes the court to appoint private counsel to represent the interests of a child in a custody or visitation proceeding, if the court determines that the appointment would be in the child’s best interest. That is the whole statutory premise: a lawyer, appointed for the child. Courts most often reach for it in high-conflict cases — contested move-away requests, allegations of abuse or substance use, entrenched disputes where the parents’ accounts of the child’s life cannot both be true.
The appointment is typically funded by the parents: the court will usually order the parties to split the cost, subject to each party’s ability to pay. In practice, when both lawyers agree to an appointment on the record, the order goes in with little discussion — often including the cost split and the scope of what minor’s counsel will do. Pay attention to that moment. More on why below.
What Minor’s Counsel Does
Minor’s counsel is, by statute, a lawyer for the child — and the toolkit is a lawyer’s toolkit. Once appointed, minor’s counsel will ordinarily:
- Meet with the child, usually more than once, and often outside the presence of either parent;
- Review the child’s school records, medical and counseling records, and the court file;
- Interview parents, and sometimes teachers, therapists, coaches, or other people in the child’s life;
- Call witnesses, introduce evidence, and cross-examine at hearings; and
- Present argument to the court about what outcome serves the child’s interests.
Notice what these have in common: they are the ordinary tools of advocacy, exercised on behalf of the child rather than either parent. That is what the Legislature designed — a voice for the child in a proceeding that is about the child but conducted entirely by the adults.
What Minor’s Counsel Is Not
Here is where parents — and, candidly, some courts — get into trouble. It is just as important to understand what minor’s counsel is not.
Not a Custody Evaluator
California has a separate, carefully regulated mechanism for expert custody recommendations: the child custody evaluation, ordered under Family Code § 3111 or Evidence Code § 730. Custody evaluators must satisfy the education, experience, and training requirements set out in Family Code §§ 3110.5 and 1815 — generally a licensed mental health professional: a psychiatrist, a Ph.D. psychologist, a licensed marriage and family therapist, a licensed clinical social worker, or a licensed clinical counselor, with specific training in child development, the effects of divorce on children, and domestic violence. Evaluators must use comparable interview, assessment, and testing procedures for all parties, and must inform each adult party of the purpose, nature, and method of the evaluation.
Minor’s counsel need meet none of those requirements. A lawyer appointed under § 3150 completes a training course, not a master’s degree in psychology or a clinical licensure. Lawyers are generalists — that is our strength — but generalist legal training is not clinical expertise in the psychological needs of children. A view about custody from minor’s counsel does not come with the safeguards the Legislature demands of those it actually authorized to make expert custody recommendations.
Not a Witness
Family Code § 3151 provides that minor’s counsel is not a witness in the proceeding and may not be called to testify or be cross-examined. This cuts both ways. It protects the attorney-client relationship between minor’s counsel and the child. But it also means that whatever minor’s counsel tells the court — about what the child said, what the records show, what outcome the child’s interests require — is never tested by cross-examination, the tool our adversarial system relies on to test everything else.
Not a Neutral
This is the point I press hardest when I teach this material to other lawyers. Minor’s counsel is an advocate, and advocacy and neutrality are antithetical — you cannot be both. A lawyer’s job is to take a position for a client and press it with every lawful tool available; that is bias in the purest professional sense, bias in favor of the client. There is nothing wrong with that — it is what lawyers are for. But it means minor’s counsel is not a neutral arbiter of your child’s best interests and should not be treated as one.
The Gap Between the Statute and the Courtroom
If you take the statutes at face value, minor’s counsel is simply one more lawyer in the room, whose arguments the court weighs like any other lawyer’s. That is the formal design. The practical reality, in my experience across many years and many courtrooms, is different: minor’s counsel’s word carries enormous weight, and judges follow it far more often than not.
Nowhere is that more true than in temporary — pendente lite — orders. In the early, fast-moving phase of a case, before anyone has put on evidence at a full hearing, courts lean heavily on minor’s counsel’s stated position. A temporary order entered on that basis then sets a baseline that is very difficult to dislodge months later, because family courts rightly value stability for children. The structural problem should be plain: the statute hands minor’s counsel a lawyer’s tools, but courtroom practice often grants minor’s counsel an evaluator’s influence — without the evaluator’s training, methodology, written report, or exposure to cross-examination. That gap between formal role and practical power is the subject of Parts 2 and 3 of this series.
What Parents Should Do When Minor’s Counsel Is Appointed
Given all of that, here is my practical guidance for parents:
- Cooperate, professionally. Return calls, show up to meetings, be courteous. Minor’s counsel’s impressions of you will reach the court, formally or informally. Treat every interaction accordingly.
- Never coach your child. Do not rehearse answers, suggest talking points, or debrief your child after meetings. Coaching is usually transparent to an experienced lawyer, and nothing damages a parent’s credibility faster.
- Provide requested documents promptly. School records, medical releases, counseling information — produce them quickly and completely. Delay reads as obstruction.
- Understand that you generally cannot remove minor’s counsel for perceived bias. Removal is essentially limited to an actual conflict of interest or unavailability. A motion to remove minor’s counsel because you believe they have sided against you will almost certainly fail — and will poison the relationship for the rest of the case.
- Talk to your own lawyer before stipulating to an appointment — and especially before stipulating that minor’s counsel may make “recommendations.” Those on-the-record moments at the appointment hearing can shape the entire trajectory of your case. Know exactly what you are agreeing to, and what you are not, before you say yes.
Frequently Asked Questions
Who pays for minor’s counsel?
The parents, in most cases. The court typically orders the parties to split minor’s counsel’s fees, subject to the court’s assessment of each party’s ability to pay. If a party genuinely cannot pay, the court can adjust the allocation or, in some counties, look to public funds, but the default expectation is that the parents share the cost.
Can I fire or remove minor’s counsel?
Not in the way you can fire your own lawyer. Minor’s counsel is appointed by the court, not retained by you. Removal is essentially limited to an actual conflict of interest or unavailability. Perceived bias — the feeling that minor’s counsel has taken the other parent’s side — is not grounds for removal, because minor’s counsel is an advocate for the child, not a neutral, and advocates take positions.
Does minor’s counsel decide custody?
No. Only the judge makes custody orders. Minor’s counsel presents information and argument on the child’s behalf, like any lawyer for any party. That said, as a practical matter, courts give substantial weight to minor’s counsel’s position — especially at the temporary-orders stage — so parents should treat minor’s counsel’s involvement with great seriousness.
Can minor’s counsel be cross-examined?
No. Under Family Code § 3151, minor’s counsel is not a witness and may not be called to testify or cross-examined. Whatever minor’s counsel tells the court comes in as a lawyer’s statements and argument, not as sworn, testable testimony.
The Rest of This Series
In Part 2, I examine the published appellate decision that shaped how California courts now treat minor’s counsel’s “recommendations,” and why I believe it papered over a real due process problem. In Part 3, I take up the deeper question: what does it mean to be qualified to make a custody recommendation at all — and who should be allowed to make one?
This article is for informational purposes only and does not constitute legal advice. Every case is unique. Consult a qualified attorney for advice regarding your specific situation. Egan Law · Santa Maria, California · (805) 332-3984 · judeeganlaw.com
