By M. Jude Egan, Ph.D., J.D., Certified Family Law Specialist — Egan Law, Santa Maria, California
What weight should a court give a “recommendation” from minor’s counsel — a lawyer appointed under Family Code § 3150 to represent a child in a custody dispute? I have more than an academic interest in that question. I was trial and appellate counsel for the father in Ramsden v. Peterson (2022) 76 Cal.App.5th 339, and few published cases better illustrate what § 3150 counsel has become in actual practice. In Part 1 of this series, I explained what minor’s counsel is supposed to be under the statute: an advocate for the child, with the powers of a lawyer and no more. This article is about what happened when I tested that proposition on appeal — and about the three holdings in Ramsden that every parent and every family law practitioner should understand before minor’s counsel is appointed in their case.
How the Case Reached a Third Move-Away Trial
The procedural history matters, so let me set it out neutrally.
In the 2014–2015 era, the mother twice sought court permission to relocate out of state with the parties’ daughter. Both requests went to fully contested move-away trials. Both trials ended the same way: the child would remain in California, and if the mother stayed in California, the parents would share a 50/50 custodial timeshare. Two full trials. Two findings that the child’s interests were served by staying. The mother stayed, and for years the child lived under a stable, equal parenting plan.
Years later, the mother filed an ex parte request to change custody. The centerpiece was a Child Welfare Services “safety plan” arising from a single alleged incident — a document generated from interviews the mother arranged, and filed with the court roughly two months after the incident it described. Whatever else can be said about a two-month-old report, it is difficult to call it an emergency. The ex parte was granted, and the long-standing 50/50 schedule was displaced by temporary orders.
Minor’s counsel was then appointed under Family Code § 3150. Shortly after appointment, minor’s counsel announced in open court that she would support the mother’s move-away request — a request that had not yet been filed. When the third move-away request was eventually filed and tried, the court granted the move. The Court of Appeal affirmed. That affirmance is the published opinion I want to examine.
Holding One: “Recommendation,” “Position,” or “Argument”?
At trial, I moved in limine to prevent minor’s counsel from making a “recommendation” on the move-away, arguing that § 3150 makes her an advocate, not an evaluator. The motion was denied, and on appeal the court disposed of the issue in a single sentence:
“That the parties alternatively called counsel’s advocacy a ‘recommendation’ or ‘position’ or ‘argument’ is a semantical distinction with no substantive significance.” (Ramsden v. Peterson (2022) 76 Cal.App.5th 339, 344.)
On paper, the equivalence has a certain surface logic. Every lawyer who argues is, in a sense, recommending an outcome. But the words are not interchangeable in a real courtroom, and the record in this very case shows why. In overruling my motion, the trial court explained that its “way of thinking” about minor’s counsel was “almost akin to 730 experts” — a reference to court-appointed experts under Evidence Code § 730 — and that refusing to let minor’s counsel state what is in the child’s best interest would “undermine the entire 3150 statute.”
That is the heart of my disagreement with the opinion. An Evidence Code § 730 expert is qualified by the court, follows professional standards, issues a report, and sits for cross-examination. Minor’s counsel does none of those things. Yet the trial court told us, candidly and on the record, that it was receiving minor’s counsel’s statements as something close to expert input. The Court of Appeal answered by saying the labels do not matter. In my experience, the labels matter enormously — not because of what appellate justices call them, but because of how trial judges actually treat them. When minor’s counsel speaks, judges listen in a way they do not listen to the parents’ lawyers. Calling that “argument” after the fact does not change what happened at the trial level. It simply insulates it from review.
Holding Two: The Hearsay Problem and People v. Sanchez
The second holding concerns the CWS safety plan. That document was hearsay layered on hearsay: a child’s out-of-court statements, relayed through a parent, recorded by a social worker, summarized in a plan. No CWS witness ever testified. No one who prepared the document was sworn, examined, or cross-examined. Minor’s counsel nonetheless relied on it in urging her position to the court.
On appeal, I argued this violated People v. Sanchez (2016) 63 Cal.4th 665, in which the California Supreme Court held that an expert may not relate case-specific hearsay to the trier of fact unless the facts are independently proven by competent evidence. The Court of Appeal rejected the argument on the ground that Sanchez presupposes testimony — and minor’s counsel “did not testify.”
Consider the circularity. Family Code § 3151 provides that minor’s counsel is not a witness and may not be called to testify. So minor’s counsel cannot testify — ever. If Sanchez applies only to those who testify, then the case-specific material minor’s counsel gathers and relies upon can never be tested under Sanchez at all. The statute that shields minor’s counsel from cross-examination becomes, under this reasoning, the same shield that exempts her source material from evidentiary scrutiny. The parties are left facing a presentation that functions like expert opinion in the courtroom, built on documents no one authenticated, from declarants no one cross-examined — and the doctrine designed to police exactly that problem is held inapplicable by definition. In an adversarial system built on confrontation and cross-examination, that should trouble all of us, whatever side of these cases we find ourselves on.
Holding Three: Changed Circumstances and the Erosion of Finality
The third holding has received less attention than the § 3150 issue, but I think it is just as consequential. Custody modification law rests on a finality principle. Under Montenegro v. Diaz (2001) 26 Cal.4th 249, once a final custody determination is made, the court preserves the established arrangement unless a significant change of circumstances shows a different arrangement is in the child’s best interest. In re Marriage of Burgess (1996) 13 Cal.4th 25 and In re Marriage of LaMusga (2004) 32 Cal.4th 1072 supply the framework for move-away requests within that structure.
In Ramsden, the mother had already litigated two full move-away trials and lost both. On the third request, the trial court nonetheless conducted a fresh best-interests analysis and granted the move. And to the extent changed circumstances were required, the Court of Appeal found them in the strengthening of the mother’s marriage over its three-plus years and the deepening of the child’s bond with her stepfather.
Step back and ask what those “changed circumstances” actually are. A marriage growing older. A relationship growing incrementally closer. In other words: largely the passage of time. But time always passes. Marriages always lengthen. Children always develop bonds with the people in their lives. If those ordinary accretions satisfy the changed-circumstances rule, then the rule no longer performs its function, because every custody judgment carries the seeds of its own reopening. A parent who prevails at a contested move-away trial has, on this view, won nothing final — only an intermission. That drains the res judicata value out of custody judgments, and it invites exactly the serial relitigation that Montenegro was meant to prevent. Children need stability; that is the premise of the changed-circumstances rule itself. A doctrine that lets time alone unlock a third bite at the apple undermines the stability it exists to protect.
What This Means in Practice
Whether or not you share my view of the opinion, Ramsden is the law, and parents and practitioners need to deal with it. Four practical lessons:
- Be precise about what you stipulate to. When appointment of minor’s counsel is proposed, the scope of the stipulation matters. Agreeing to an appointment is not the same as agreeing that counsel will deliver “recommendations.” Say on the record exactly what you are agreeing to — and exactly what you are not.
- Object early, and on the record. If minor’s counsel begins offering what functions as an expert recommendation, object then, not later. A pattern of contemporaneous, specific objections is the only way to preserve the issue and to keep the roles honest in real time.
- Demand a Family Code § 217 evidentiary hearing before temporary custody changes. The pendente lite period is where minor’s counsel’s influence is at its peak and the evidence is at its thinnest. Temporary orders create baselines that are hard to undo. Insist on live testimony before an established parenting plan is disturbed.
- Insist that case-specific facts come in through competent evidence. Reports, safety plans, and third-party summaries should be proven up by the people who made them. If the facts matter, the declarants should be in the courtroom and subject to cross-examination.
The Question Ramsden Left Open
Ramsden told us what minor’s counsel’s statements are not: they are not, on appeal, anything more than argument. But the deeper question remains unanswered. In the courtroom, is minor’s counsel functioning as an expert, a neutral, or an advocate? The three roles carry entirely different qualifications, duties, and safeguards — and minor’s counsel fits none of them cleanly. That question, and what the Legislature’s own standards for custody evaluators tell us about it, is the subject of Part 3 of this series.
This is Part 2 of a three-part series on minor’s counsel in California custody cases. Part 1: What Is Minor’s Counsel — and What Is It Supposed to Do? Part 3: Expert, Neutral, or Advocate? The Expertise Problem in Custody Recommendations.
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
