If you watch a lot of TV crime dramas, you may already be familiar with a criminal defendant’s right to an attorney, and, of course, the person’s right to be told that he or she is entitled to an attorney. In fact, the right to seek legal counsel is important in a wide variety of litigation contexts, including divorce and other related proceedings. In In re Marriage of Metzger, California’s Fourth District Court of Appeals explains that the right to counsel may also extend to a child who is the subject of a custody dispute between parents.Husband and Wife were married in November 2003 and had a daughter, M, one year later. Wife filed a petition to dissolve the marriage in June 2009. Following a number of delays, extensions, and squabbles over depositions, and autism screenings for M, the trial court granted the dissolution and scheduled a separate trial on the issue of child custody in 2012.
Over Husband’s opposition, the lower court later issued an order appointing a lawyer to represent M in the proceedings and obligating Husband to advance $100,000 for the attorney’s retainer, an amount the trial judge said should ultimately be reimbursed from the spouses’ community property. The trial court said the move was justified by Wife’s concerns about whether the child might be autistic. Husband had previously dismissed the concerns as delay tactics, while Wife argued that M showed some signs of developmental delay. The trial judge said M was caught in the middle of the debate and “needs someone to speak for her.”
On appeal, Husband argued that appointing the lawyer violated his constitutional right to determine his daughter’s needs and represent her interests. This right to counsel, according to the Court, stems from the 14th Amendment’s due process guarantee. Husband also argued that the appointed attorney was likely to be biased in the autism dispute because she herself is the mother of an autistic child. The Second District disagreed.
The Court noted that state law permits a court to appoint counsel for a minor child in a custody or visitation proceeding where doing so is in the child’s best interest. In making this decision, courts are required to consider whether the custody issue is highly contested or drawn out, whether the child’s lawyer is likely to be able to give the court information that otherwise isn’t readily available, whether knowledgeable counsel is available, and whether the child’s best interest appears to necessitate independent representation.
Here, the Court said the trial judge’s appointment of M’s lawyer didn’t interfere with any constitutional rights Husband had as her father. “[T]he court’s order only appointed minor’s counsel for the purpose of providing the court with additional information; it did not preclude the parties from also informing the court what they believe M.’s best interests to be,” the appeals court noted.
Moreover, the Court held that Husband’s constitutional rights didn’t trump the Court’s authority to act in M’s best interest by appointing counsel. “Although a parent’s interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect,” the Court concluded, quoting the California Supreme Court’s 1993 decision in In re Marilyn H.
As a result, the Court affirmed the trial judge’s ruling.
It may not be possible in all circumstances, but any couple considering divorce, where each spouse is willing and able to try and consider the needs and interests of the other and of their children, can usually avoid costly, protracted, and acrimonious litigation with alternatives such as mediation and collaborative divorce. With offices throughout the region, Bay Area divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes.
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