California

Family Law

Rule 5.240 – Appointment of counsel to represent a child in family law proceedings

(a) Appointment considerations

In considering appointing counsel under Family Code section 3150, the court should take into account the following factors, including whether:

(1) The issues of child custody and visitation are highly contested or protracted;

(2) The child is subjected to stress as a result of the dispute that might be alleviated by the intervention of counsel representing the child;

(3) Counsel representing the child would be likely to provide the court with relevant information not otherwise readily available or likely to be presented;

(4) The dispute involves allegations of physical, emotional, or sexual abuse or neglect of the child.

(5) It appears that one or both parents are incapable of providing a stable, safe, and secure environment;

(6) Counsel is available for appointment who is knowledgeable about the issues being raised regarding the child in the proceeding;

(7) The best interest of the child appears to require independent representation; and

(8) If there are two or more children, any child would require separate counsel to avoid a conflict of interest.

(b) Request for appointment of counsel

The court may appoint counsel to represent the best interest of a child in a family law proceeding on the court’s own motion or if requested to do so by:

(1) A party;

(2) The attorney for a party;

(3) The child, or any relative of the child;

(4) A mediator under Family Code section 3184;

(5) A professional person making a custody recommendation under Family Code sections 3111 and 3118, Evidence Code section 730, or Code of Civil Procedure section 2032.010 et seq.;

(6) A county counsel, district attorney, city attorney, or city prosecutor authorized to prosecute child abuse and neglect or child abduction cases under state law; or

(7) A court-appointed guardian ad litem or special advocate;

(8) Any other person who the court deems appropriate.

(c) Orders appointing counsel for a child

The court must issue written orders when appointing and terminating counsel for a child.

(1)The appointment orders must specify the:

(A) Appointed counsel’s name, address, and telephone number;

(B) Name of the child for whom counsel is appointed; and

(C) Child’s date of birth.

(2) The appointment orders may include the:

(A) Child’s address, if appropriate;

(B) Issues to be addressed in the case;

(C) Tasks related to the case that would benefit from the services of counsel for the child;

(D) Responsibilities and rights of the child’s counsel;

(E) Counsel’s rate or amount of compensation;

(F) Allocation of fees payable by each party or the court;

(G) Source of funds and manner of reimbursement for counsel’s fees and costs;

(H) Allocation of payment of counsel’s fees to one party subject to reimbursement by the other party;

(I) Terms and amount of any progress or installment payments; and

(J) Ability of the court to reserve jurisdiction to retroactively modify the order on fees and payment.

(3) Courts may use Order Appointing Counsel for a Child (form FL-323) or may supplement form FL-323 with local forms developed under rule 10.613.

(Subd (c) amended effective January 1. 2013.)

(d) Panel of counsel eligible for appointment

(1) Each court may create and maintain a list or panel of counsel meeting the minimum qualifications of this rule for appointment.

(2) If a list or panel of counsel is maintained, a court may appoint counsel not on the list or panel in special circumstances, taking into consideration factors including language, culture, and the special needs of a child in the following areas:

(A) Child abuse;

(B) Domestic violence;

(C) Drug abuse of a parent or the child;

(D) Mental health issues of a parent or the child;

(E) Particular medical issues of the child; and

(F) Educational issues.

(3) If the court maintains a panel of counsel eligible for appointment and the court appoints counsel who is not on the panel, the court must state the reason for not appointing a panel counsel in writing or on the record.

(4) Any lists maintained from which the court might appoint counsel should be reviewed at least annually to ensure that those on the list meet the education and training requirements. Courts should ask counsel annually to update their information and to notify the court if any changes would make them unable to be appointed.

(Subd (d) amended effective January 1, 2013.)

(e) Complaint procedures

By January 1, 2010, each court must develop local court rules in accordance with rule 10.613 that provide for acceptance and response to complaints about the performance of the court-appointed counsel for a child.

(f) Termination of appointment

On entering an appearance on behalf of a child, counsel must continue to represent that child until:

(1) The conclusion of the proceeding for which counsel was appointed;

(2) Relieved by the court;

(3) Substituted by the court with other counsel;

(4) Removed on the court’s own motion or request of counsel or parties for good cause shown; or

(5) The child reaches the age of majority or is emancipated.

Cal. R. Ct. 5.240

Rule 5.240 amended effective January 1, 2013; adopted effective January 1, 2008.

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