Special Needs Children and the Court System

Special Needs Children and the Court System

Tammy and Raphael were married in 2003, and their daughter, M, was born the following year. On July 30, 2009, Tammy filed a petition to dissolve her marriage with Raphael. The court ordered a separate trial on child custody issues and scheduled trial for May 2011. In April of 2011, Tammy requested a trial continuance to give her time to have M evaluated for autism. Raphael opposed the request for a continuance, because her "new" concern was a stall tactic. He argued that Tammy had already obstructed the proceedings by refusing to stipulate to a separate trial on child custody issues, failing to appear for her deposition, and refusing to agree to alternate dates for her deposition, among other actions. In fact M had already been evaluated 12 previous times!

The trial court did not approve either request but appointed Eva Lopez to act as the counsel for M – at a cost of $100,000. Raphael appealed the court order arguing that it violated his Constitutional rights to determine his child's best interests. He also argued that Lopez would determine that M had autism because Lopez had a child with autism. The judge informed Raphael that he chose Lopez because she had an autistic child, that she had an MA in psychology, was a lawyer in her own right, and was well versed in autism spectrum disorders. The judge wanted someone to speak for M, and that did not violate Raphael's Constitutional rights.

Raphael appealed, but the appellate court agreed with the trial court.

Family Code section 3150, subdivision (a) provides that "[i]f the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in the … California Rules of Court" (CRC Rules). The CRC Rules provide factors the court should use in determining whether to appoint minor's counsel, including whether (1) the issue of child custody is highly contested or protracted, (2) minor's counsel would be likely to provide the court with relevant information not otherwise readily available,(3) knowledgeable counsel is available for appointment, and (4) the best interest of the child appears to require independent representation. The court stated, "it has long been recognized that a trial court has the responsibility to protect the rights of a minor who is a litigant in court , and in this role the court has the inherent authority to make decisions in the best interests of the child, even if the parent objects. "The principle of the best interests of the child is [an essential element] of the family law process governing custody disputes." "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 [that child]."

Here, M's interest life would be determined on whether she was autistic, and if so, the best way to provide for her life. The trial court believed that Lopez would be able to help the court make that determination at the present time as well for M's entire childhood. That is also why the court allowed for the $100,000 fee for Lopez. (It was not for her one-time appointment, but to monitor M's life until she reached adulthood.)

Parents have the right to control of their minor children's livelihoods. In custody matters, the courts must allow both parents to "parent" their children, but when a conflict emerges between the rights of the parents and the rights of the child, a court often will appoint independent counsel to represent the child's interests.

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