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Minor’s Counsel: The Attorney for Your Child

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“It is a double pleasure to deceive the deceiver.” Niccolo Machiavelli

Involving a child in a custody and visitation hearing is avoided at all costs. Even though parents have a right to call their child to testify in custody hearings, in practice, it rarely happens. In high conflict custody cases, the court will often find other ways to gather evidence to find what is in the best interest of your child(ren) short of them testifying.

If your case is high conflict, where allegations are hurled back and forth, the court may appoint an attorney to represent your child in court.

It is a very awkward thing to appoint a five-year old an attorney. I recall once being in court and seeing a child stamp up and down crying “I want my lawyer.”  The bailiff could not calm her down until he went and fetched the demanding child’s lawyer.

If you are involved in a high conflict custody case in Los Angeles County, there is a strong chance that the court will appoint an attorney to represent your children’s interest in court. While I do not mean to imply that judges rubber stamp minor’s counsel’s requests, what your kid’s attorney requests in court is often the order of the court. Being informed about the role of minor’s counsel will assist you in custody and visitation proceedings.

I was recently certified to represent children in family court as a minor’s counsel. I have had 11-years of cases against minor’s counsel in dependency court and dozens with minor’s counsel in family law. My personal and professional opinion about minor’s counsel tosses back and forth between admiration to completely terrified.

“With great power comes great responsibility.”

I am constantly hearing from my colleagues about some reckless minor’s counsel that wields entirely too much power with the court.  I am always asked about this minor’s counsel or that one. It is an issue that continues to come up throughout the years.

A minor’s counsel is an attorney that represents children in custody proceedings. Pursuant to California Family Code Section 3150 (a), if the court determines it would be in the best interest of the child(ren), the court may appoint private counsel to represent the child(ren) in a custody or visitation proceeding, and provide the court and counsel comply with California Rule of Court 5.242.

Minor’s counsel is required to represent the best interest of the child(ren) by gathering and presenting evidence that bears on the best interest of the child. Minor’s counsel is not required to be a social worker or provide non-legal services. Think of it as a third attorney on the case that is subject to the same laws and procedures as your lawyer.

Subject to the court’s order of appointment, pursuant to California Rule of Court 5.242(k), minor’s counsel may attend and participate in hearings relevant to the child, take positions relevant to the child on legal issues before the court,  and seek and advocate for services for the child. If the child(ren) desire, minor’s counsel may present the child’s wishes to the court.

When the court appoints an attorney to represent your children, their job is to gather admissible evidence and advocate for services.

The Minor’s counsel pursuant to California Rule of Court 5.242(j), has a right to the following:

  • Reasonable access to the child(ren)
  • Seek affirmative relief on behalf of the child
  • Take any action available to a party
  • Access to the child’s medical, dental, mental health, school, and educational records
  • Assert or waive any privilege on behalf of the child
  • Seek independent psychological or physical examination
  • Not be called as a witness

Do I Have to Allow My Child to Speak With the Minor’s Counsel?

Yes. California Rule of Court 5.242(j) allows for reasonable access. This includes meeting with your child in private. This maintains attorney and client privilege. So, any attempt to deny the attorney access to your child could be a costly mistake.

What Do I Do if the Minor’s Counsel is Against My Interest in Court?

If the minor’s counsel is against what you want in court, your chances of success are lowered. However, if you must fight Minor’s Counsel in court, then know their role in the proceedings. Their role is to gather admissible evidence and advocate on behalf of the children.

So, if the minor’s counsel is stating what your children have said, OBJECT to it as hearsay. Often, the minor’s counsel will come in and report what others have told them. Make sure to shut down any attempts by the minor’s counsel to talk about things that are not in evidence.

If you are representing yourself in court, consult with a Long Beach family law attorney about what is admissible evidence is for your case.

Do I Get to Pick the Minor’s Counsel?

The Minor’s Counsel is appointed by the court. Most times the court randomly selects attorneys for each case. Certain judges tend to appoint the same minor’s counsel repeatedly.

If both sides agree to the appointment of minor’s counsel, then the court will often allow the parties to select.

Which Minor’s Counsel Do I Want to Pick?

Like all professions, mediocrity is present in the pool of minor’s counsel. I suggest consulting with at least five Family Law Attorney specialist with the court where your case is assigned about the best and the worst minor’s counsel that could be appointed to represent your children.

I suggest finding a minor’s counsel that is reputable with your specific judge, who has worked with your lawyer previously and develop strategies to avoid getting certain minor’s counsel appointed on your case.

What Do I Do When Minor’s Counsel is Appointed to My Family Law Case?

As a minor’s counsel, I want to talk to the parents about the case. I want to find out the family history, issues, and the evidence available to discover the best interest of the children. My suggestion is to not overwhelm the minor’s counsel with information but to gather helpful evidence to your case and provide it to them in a timely manner.

Be an advocate for your child. Layout what parenting plan you think is best and why. Help minor’s counsel understands the issues and challenges that your family has so that the minor’s counsel can identify and seek solutions.

A good minor’s counsel should always seek a resolution to your case. When parents fight in court, there is an energy and negativity that seeps into the child’s life.

If you are appointed minor’s counsel, know that their requests are given great weight by the court. It is best to work hard towards a settlement with the minor’s counsel. If a settlement is not possible, you should know the minor counsel’s role and contest their position based on a lack of evidence in the record.

DCFS Investigations and Preventing a Dependency Case Filing with Tips on Drug Testing for DCFS

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“Begin the morning by saying to thyself, I shall meet with the busy-body, the ungrateful, arrogant, deceitful, envious, unsocial…”   Marcus Aurelius- Meditations

Having fought DCFS social workers in Los Angeles County for over a decade, I am never surprised by their arrogance and sometimes wicked nature. Some social workers are amazing, but so many of them are hacks. Social Workers are always deflecting and distorting facts about families to protect themselves. They rarely act as social workers and are robotic and inflexible in thought.  What you say and how you say it determines how the social worker will react. When a family encounters a social worker, it is often new territory. Los Angeles County has a big social worker problem and that no one wants to acknowledge it. I feel passionate about helping families avoid the common traps that lead to their children being ripped away and placed in a foster home.

The beginning is always the most important part of the journey. Your first interaction with DCFS can make or break your case. This blog has the intent of informing Los Angeles County families on how to fight back against DCFS and protect their families.

The Los Angeles County Department of Children and Family Services (“DCFS”) cannot remove your children from your care without a warrant signed by a Judge of the Los Angeles Superior Court, your consent, or if exigent circumstances exist to protect the children of immediate risk of danger. Each year Los Angeles DCFS receives over 265,000 referrals of child abuse on their child abuse hotline. The referrals come from teachers, police officers, therapists, some hater, or a relative. The name of the game is to convince DCFS not to file a petition in Dependency Court against you or file a warrant to remove your children. My practice provides representation during DCFS investigations and advice on how to make sure your children are not swallowed up with the over 35,000 children in the Los Angeles Dependency Court System.

As part of the DCFS investigation, social workers are required to interview you, your children, and collateral witnesses to determine if the allegations against you are substantiated, unsubstantiated, or unfounded. If substantiated, the social worker will determine if enough risk to the children exists to seek removal from a parent.

If DCFS finds that enough risk exists, then they will seek a warrant to remove the kids. In the end, the judge takes your children away, but relies solely on social worker reports. Unfortunately, the judge that current signs most of the warrants in Los Angeles County is nothing, but a rubber stamp for DCFS. The social worker submits a warrant with a statement of their interview of you, the children, and anyone else.

These statements are compiled in the warrant application and what eventually is filed on your first day of court, called the Detention Report. The social worker reports make or break your case and what you tell DCFS in your initial interview can be the difference to your children spending a year in foster care or staying home with you.

During an initial DCFS investigation, cooperation with the social worker is vital and essential. Blowing off the social worker or trying to evade them can lead to serious problems. Remember there are over 265,000 referrals each year. It is important to make sure that you say the right things so that they move on to the next referral.

Parents Rights in DCFS Investigation

Parents have a right to have an attorney present when they make their initial statement to the social worker.  However, social workers often show up unannounced at your home and start asking questions about the allegations. This leads to parents making bad admissions or making the same old mistakes that lead to a case being filed.

Ideally, you would find a social worker’s card at your door or receive a voicemail from the social worker. Immediately call an experienced dependency attorney to advise.  If you chose to hire a dependency attorney, they would reach out to the social workers’ attorney and set up an interview with you and your children. This boys you time and time for the social worker to take their witch hunt to another referral.

You will not know the allegations of child abuse against you until the interview, but an experienced dependency attorney should be able to flesh out the issues. This will allow for time for you to figure out your defense to the allegations and a strategy to prevent a case from being filed.

Do not take legal advice from criminal or family law attorneys on DCFS investigations. You need someone that has worked against DCFS for years. If you are under criminal investigation having coordination between your dependency and criminal lawyer is vital. I have seen kids end up in foster care because a criminal lawyer did not understand how DCFS works.

Best case scenario to start an investigation is that the social worker’s card is at your door and you call a dependency attorney before responding.

The reality is that the social worker shows up to your home unannounced, blind sides you, and gets you talking. If a social worker shows up, you are entitled to an attorney. Invoke your right to have an attorney present for your interview and state that you will cooperate. This will delay the investigation and give you the opportunity to flesh out the issues in your case. However, you must act quickly in hiring an attorney and setting up your interview. I have seen cases filed while waiting to set up a DCFS interview.

Once you have been initially interviewed by a social worker, a dependency lawyers hands get tied. Social workers do not have an obligation to interview you again. After the initial interview, they rarely take your calls or messages due to the volume of their work. I compare social workers to DMV or airport workers when it comes to customer service.

Frequently Asked DCFS Investigation Questions

Do I have to let DCFS interview my children alone?

If you do not allow it, the social worker will get upset and seek a warrant to allow them to interview your children alone. Remember there are 265,000 referrals for child abuse each year. The goal is to cooperate and let them do their job to move onto someone else.

Can I record the social worker’s interview?

DCFS policy is to not allow recordings of their interviews. If you are caught recording a social worker’s interview, it can cause friction with the social worker. It could potentially be a violation of California law as well.

I have had client’s tape interviews and caught social workers in lies before. It could potentially come into evidence as the impeachment of a statement the social worker made to the court about your family. But remember, during the investigation, your goal is to cooperate and show that you understand their concerns and how to address them.

How long does the social worker investigation last? 

They are supposed to last for 30 days. However, I have seen them last for six months. It all depends on your level of cooperation and the issues.

Be ready for the social worker to come back after 30 days and check in on you.

The social worker told me to go get a restraining order should I do it?

Yes, if the social worker tells you to go to family law and get a restraining order, you should almost certainly do it. DCFS dumps cases on the family law court system. If they believe that you are protecting the children by seeking protection in a family law court, they will most likely not file a case on you.

Social workers do not participate in family law cases unless subpoenaed and rarely if ever pull records from family law court unless given to them by a party. So if your boyfriend gets arrested and DCFS tells you to get a restraining order, you can do it and continue the temporary restraining order for enough time to allow the DCFS investigation to end.

But what happened was not domestic violence and I do not want a restraining order, the social worker sucks?

There are two parts to a restraining order. The first is getting a temporary restraining order issued. The second is having a hearing to determine if a permanent restraining order is needed.  The goal is to continue the TRO until you get confirmation that the DCFS investigation is over. Judges in family law have no say to prosecute a restraining order if you chose to drop it.

Drug Testing for DCFS

Do I have to take a drug test?

The answer is no. But remember cooperation during the investigation is very important to prevent an open case from being filed. I advise almost all of my clients to take a drug test for DCFS during the investigation.

What if my drug test will come up dirty for methamphetamine, cocaine, opiates, or heroin?

DCFS testing facilities are observed. Meaning that someone watches you urinate at the testing facility. The standards used at the testing facility are the gold standards for drug testing. If you dilute with water than they can potentially find out you cheated the test, which will cause major credibility problems for you.

If DCFS is requesting you to take a drug test and you are going to test dirty and need a few more days to clean out, then you can try to show up to the facility towards the end of the day without your identification. The facility will give you a slip that you were present without an identification.  The social worker will then either count that as a dirty test or send another referral to test, which could give you the time that you need. This is a slippery slope.  If you say you lost your ID the social worker will have to make you one. This buys time, but this is by no way going to keep them from filing a case.

I am going to test positive for marijuana and it is legal?

Alcohol is legal as well, but people abuse it. The social worker will look at what level of marijuana and judge you from the levels. At your next test, the levels should be going down.

With regard to marijuana during a DCFS investigation, it is important to note that you do not smoke around the children and keep the marijuana locked and in a secure area. I have not seen a decrease in allegations of neglect as to marijuana. To DCFS it is still a liability that they must protect themselves from. So, yes even though marijuana is legal it is still a big issue to DCFS.

The social worker wants me to go to these stupid classes, what should I do?

DCFS’ answer to resolve any allegation of abuse or neglect is for a parent to enroll in service. These could be parenting class, domestic violence classes, individual counseling, marriage counseling, or a drug treatment program.

Some of the classes will seem pointless like traffic school. However, programs and classes neutralize the risk that DCFS feels that you present. The sooner you get in and cooperate the better. This could be what prevents them from filing a case.

Generally, if during an investigation, they provide you with referrals to services it either means that they are going to close the referral or going to not close it and to follow up that you are progressing. Again, seek the counsel of an experienced Long Beach dependency attorney when determining when and what classes to get enrolled.

The social worker wants me to agree to a 301 contract or a voluntary supervision program with them for six months, what should I do?

Remember, the goal is to prevent DCFS from opening a case against you. A 301 contract is an agreement with you and the social worker that they will not open a case if you go and take some classes. The supervision is minimal and is mostly there because they want some more time to make sure nothing bad happens.

I have never advised a client not to take a 301 contract or agree to informal supervision.

Los Angeles County Ex Parte Procedures for Temporary Emergency Custody

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I want to Ex Parte with You 

I am constantly receiving calls from parents who want to rush into court on an emergency basis to change custody.  Generally, to establish or change a child custody order, it requires a parent to file a Request for Order (RFO) with California Judicial Council Form FL-300.  In an emergency, a parent may file an Ex Parte Application requesting temporary sole legal and physical custody. 

According to Family Code Section 3064, the court shall (must) refrain from making Ex Parte orders unless there has been a showing of immediate harm to the child or immediate risk that the child will be removed from the State of California.  The law instructs judges to reject Ex Parte request unless you demonstrate that the child will suffer an immediate risk of harm or removed from the state.

Generally, you have to notify the other party of when you intend to go Ex Parte and what you are requesting.  In some circumstances, you can seek temporary emergency or Ex Parte orders for child custody without giving the other side notice. I will provide some practical case analysis regarding notice.

Step 1: Determine if Notice is Appropriate

According to California Rule of Court 3.1203, notice must be given to the other party by 10:00 am the court day before the ex parte appearance. Under exceptional circumstances, notice can be waived by the court if the court finds that giving notice would place the minor at risk of harm or the purpose of the order would be defeated by giving notice.

Whoever notices the opposing party, must not be a party to the action. So if you represent yourself in Pro Per, make sure that you do not give ex parte notice.  It must be someone over 18 years old of competent mind.  According to California Rule of Court 3.1204, the notice given must include the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203, the applicant informed the opposing party where and when the application would be made.

An example of a case of when notice may not be required, would be one of recent and systematic physical abuse or a credible threat of child abduction.  As a practice pointer, generally think to notice, but weigh the circumstances carefully.  It is best to consult with an attorney when making a decision not to notice.  Making a decision to go Ex Parte without a compelling reason could be costly.

Gave Notice Example

Recently, my client was incarcerated and made a power of attorney for her mother to care for her 8 year old daughter.  The Father had never been a part of the child’s life.  Somehow, he removed the child from school and concealed her whereabouts. The child was sending text messages to family that she was being hit by her father.

When the mother was released from incarceration, the father refused to give her any information about the whereabouts, safety, and wellbeing of the minor.  In this situation, I did provide notice for the father to come to court and that I would be seeking sole custody based on his conduct.

I gave notice in this situation to see if I could talk the father into a resolution and avoid court.   The father did not show up to the Ex Parte and the mother was granted sole physical custody on an Ex Parte basis.  The matter was set for a full hearing 45 days later.  Without notice the court could have set the matter for a hearing with no temporary orders for custody, thus making our Ex Parte application have no effect.

 

Did Not Give Notice Example

Recently, a client on mine, a mother, was residing with the father of their minor infant child.  The father and his family kicked the mother out of the home and refused to let her leave with the baby.  The father and his family were moving to Texas.  They were evicted from their home and had sent text messages that they were on their way to Texas and that the mother would never see her child again.

I this situation, I did not give the other side notice of the Ex Parte request.  I went Ex Parte and obtained an order for temporary sole physical custody.  We were able to obtain the child back and work out a resolution to the case.  Notice was not given due to the real threat of the other parent fleeing the state with the child.

 

Step 2: Drafting Your Ex Parte Legal Documents

The following is an overview of the forms needed for only a request for temporary emergency custody orders under Family Code Section 3064.

  • Declaration Regarding Notice Los Angeles Superior Court Local Form
  • A Request for Order (RFO) Cover Sheet FL-300 with Accompanying Declaration
  • A Proposed Order for the Court- FL-306 or a drafted legal Proposed Order to allow the Judge to review and adopt or strike out some items.
  1. The Declaration Regarding Notice- This is Los Angeles Local Form FAM-075
  2. The Ex Parte Request Motion- FL-300 with an attached declaration of the reason that the minor is an immediate risk.
  3. A Proposed Order- FL-306 or a drafted legal Proposed Order to allow the Judge to review and adopt or strike out some items.

Filing your Ex Parte Paperwork at the Courthouse

Arrive to court at 8:00 am with your Ex Parte documents.  The clerk should be open for Ex Parte filings at this time.  If you wait until 8:30 am to file, you might get stuck in a big line and cause yourself stress about getting the paperwork to the clerk on time. If you do not have a fee waiver, the cost is $90.00 for the motion fee.  The clerk does not stamp or take the documents for you, but indicates on the paperwork that you paid the fee.

After your paid the clerk for your Ex Parte motion, take your documents to your assigned judge’s courtroom.  Give the documents to the clerk and then sit and wait.  The Judge’s generally do not call the parties on Ex Parte hearings, but decide to grant of deny them based on your paperwork submitted.  Decisions are generally made after the mid-morning break at about 10:30 am.  At that time, the clerk will inform you if your orders were granted or denied.  In some circumstances, the judge may call your case to inquire about some safety issues.

Opposing an Ex Parte

If you are noticed for an Ex Parte, it is smart to file a response on the morning of the hearing.  Although, you may not know what the other party is alleging against you, you should be able to tell your side of the story about why changing custody orders and depriving you of your children is not an emergency.

Teenage Parents and Ex Parte Applications Require a Guardian Ad Litum

When teenagers become parents it creates extra precautions in the family law court. Minors do not have the capacity to participate in court proceedings on their own. Teen parents must have a Guardian Ad Litum (G.A.L.) appointed for them by the court.  Teenage parents require a G.A.L. appointment by the court of a parent, attorney, grandparent, or other adult to make legal decisions for them based on their wants in the case.  The G.A.L. ultimately makes the decision in the case in what is in the best interest of the teenage parent.  If you need a G.A.L. appointed for your child, who is a parent, download California Judicial Council Form FL-935, Application and Order for Appointment of Guardian Ad Litem of Minor –Family Law.

If a minor parent going to court over a custody dispute did not file FL-935, it is likely to cause delay in your case.  Make sure to use this form if a minor parent is filing an Ex Parte regarding her child.  At the Stanley Mosk Courthouse, those requests are handled in Department 2.

Teenage parent cases are difficult on both sides of the family.  Grandparents act as parents and resentment builds up between the two sides of the family.  Teenage parents often lack the maturity and time to raise a minor child.