Representing Children -- Evidence Checklist. Post Elkins.
Minor's Counsel Training : Lawyer-to-Lawyer
If you are appointed to represent a child in California Family Law courts, you must meet the basic requirements laid out in Family Code §3150 et.seq., and you must use your best efforts to present your case at settlement or trial.
You will not merely 'give a report.' You must investigate, prepare your case, argue for your client, and use the normal evidentiary backup.
But what evidence is effective for a Minor's Counsel?
At a recent talk to Minor's Counsel on the best interests of a child when domestic violence allegations exist, we had a lively discussion on the fastest and cheapest evidentiary tools. The following is the text from the Checklist we used.
A pdf of that handout is provided here:
- Medical Findings/Therapist/Psychologist
- Many Medical offices will provide records to minor’s counsel without a subpoena, based on a letter addressing i) MC rights, ii) the statutes, iii) the court order and the iv) authorizations of the parties.
- Get custodian of records form signed so items will be admissible.
- Watch for HIPAA concerns, deciding whether to attach documents to declarations, whether to bring in as part of an offer of proof.
- Declarations by medical/psychological professionals are OK, but MC holds the privilege, so a decision must be made whether to waive the medical/patient privilege. (Make sure you understand the case law on when a parent should NOT have the records once produced - Narrow.) Psych records are always problematic because you risk ruining the therapist/child relationship if you force disclosure. Step through the landmines carefully, with your client's future at stake.
- Explanation of the accused parent – Declaration/Testimony
- Other victims - Declarations/Testimony
- Child’s Statements to MC
- You cannot be in the position where you are the only percipient witness!
- Build the case to support the child’s info, but do not rat out your client.
- Child’s Statements to Others
- Careful – obviously hearsay if brought in for the truth of the statement.
- As an exception, “She told me, I believed her, I acted on that belief by restricting visits…..” Declaration/Testimony
- Observations by concerned parent, relatives, friends - Declarations
- True eyewitness declarations without opining – acceptable declarations.
- Be prepared to have person testify (give notice for all live testimony!)
- Police Officer Testimony (Remember that a police report itself may be part of your discovery, but it is not admissible w/o Officer testimony in court.)
- Teacher, Coach, Other involved Third Persons – Declarations/Testimony
- Psychological Testing/Evaluator Reports/Other Tools
- We are not therapists, evaluators, psychics, etc.
- If your evidence does not allow you to argue for a ‘correct solution’ re BIOC, after all of the above, present it all to the judicial officer and ask for an evaluation. The Judge may be irritated, having hoped you would get to the kernel of truth or smoking gun, but you are representing the child, not the court’s interests. Take it on the chin.
- Use of Interrogatories, RFAs, Demands for Production, Deposition (Next Time