Wednesday, May 9, 2007
Judicial Council Seeks Comment on Criteria for Minors’ Counsel
By TINA BAY, Staff Writer
Feedback received on a proposed state rule of court that would impose training and education requirements on minors’ counsel appointed in family law proceedings has been positive so far, a spokesperson for the Judicial Council’s Center for Families, Children & the Courts said yesterday.
San Francisco attorney Gabrielle D. Selden, who along with other staff members helped draft the proposed rule that was released for public comment April 25, told the MetNews only one person has expressed concern that the rule’s area-specific education requirements would be duplicative of the State Bar’s continuing education mandates.
Proposed Rule 5.241 concerning the qualification, rights, and responsibilities of appointed minor’s counsel, along with Proposed Rule 5.240 setting forth guidelines for the court in making appointments, would repeal and replace standards 5.10 and 5.11 of the Standards of Judicial Administration.
The existing standard, which has been in place since 1992, is much more concise than the proposed rules and does not include a section concerning attorney qualifications.
Family law courts have discretion to appoint counsel to represent the best interests of a child whose parents are involved in divorce proceedings when, for example, the parties are particularly conflicted or where there are allegations of abuse against the child.
Under Proposed Rule 5.241, attorneys would not be eligible for appointment as minor’s counsel unless they have initially completed a minimum of 12 hours of education and training in enumerated areas within the preceding two years.
Those areas include statutes, rules of court, and case law relating to child custody and visitation litigation; representation of a child in custody and visitation proceedings; “special issues” attendant with representing a child, such as knowledge of child development stages; and information about local experts in various disciplines whose input would be required in child-related cases.
To remain eligible for appointment, an attorney would be required to complete eight hours in the prescribed areas each consecutive year thereafter.
Additionally, the proposed rule includes an “initial experience” requirement pursuant to which an attorney, within three years preceding appointment, must have handled either one family law child custody or visitation hearing that involved witnesses or three family law custody or visitation hearings, one of which must have involved a child custody evaluation.
Also, within five years prior to appointment, a lawyer would be required to have handled at least five proceedings involving child custody or visitation in family law, dependency, or guardianship cases—with at least two of those proceedings having been contested hearings with witnesses.
As an alternative, the proposed rule’s experience requirement allows appointment of attorneys who work under supervision of or in consultation with qualified attorneys, or who “demonstrate substantial equivalent experience.”
Selden said that any opposition to the novel qualification requirements might be due to the fact that “maybe [the opponents] don’t have a complete understanding of what the rule does.”
“The rule allows for a great amount of flexibility as far as education goes. The rule does not require that all the training come from the AOC. Someone could satisfy12 hours of training by taking a continuing education class. All they have to do is certify that they meet the 12 hours.”
San Diego attorney Sharon Kalemkiarian, a member of the Family and Juvenile Law Advisory Committee, which reviewed and approved the proposed rule, told the MetNews she felt a rule imposing education and training requirements has been much-needed.
Judges rely on minors’ counsel to inform them about the perspective of the child, and that perspective is often what most influence’s a family court’s decision, Kalemkiarian, also a member of the minor’s counsel panel in San Diego, said.
“Given that we can have a strong influence on the judge’s thinking, it’s critical that the person who is minor’s counsel has good training and sufficient experience and education to provide a perspective both in a full and reasoned way on behalf of the child,” she explained.
Although minors’ counsel are involved in only a small portion of total family law cases, Kalemkiarian said, it is “important for the public and profession” to ensure they are well-trained and well-informed.
The impetus for drafting the proposed new rule came from attorneys who are minors’ counsel who said they wanted their role to be defined more clearly in the way that the role of juvenile counsel is, she added.
“Judges were concerned that by setting the standards as high as we did, they wouldn’t find anyone to do [the job],” Kalemkiarian noted.
The hoped-for result of the proposed rules, she said, is “a voice for children which is experienced, informed and compassionate,” which will result in “better decisions on behalf of children.”
The deadline for public comment on the proposed rules is June 22.
Copyright 2007, Metropolitan News Company