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Brian K. Brandmeyer

Published Opinion

In a published opinion, Brandmeyer Gilligan & Dockstader, LLP was recently successful in defending an appeal which challenged the constitutionality of the appointment of minor's counsel in contested custody cases. California law allows a trial judge in a family law case to appoint minor's counsel – an attorney for the children – to represent the children's interests particularly when the parents are engaged in a highly contested custody battle. The use of minor's counsel in addition to child custody evaluations is often helpful to court in making determinations as to the children's best interests and how custody of children should be shared. In this case, the father opposed the appointment of minor's counsel and argued that such an appointment would violate his constitutional rights as a parent. The appellate court rejected the father's arguments and agreed with Brandmeyer Gilligan & Dockstader that the role of minor's counsel is to provide the court with information and does not preclude the parties from informing the court as to their opinion of the minor's best interests. The court observed that a parent's rights are not unlimited and there are instances where the state has a duty to make decisions regarding a child's best interests, even if a parent objects. The case will now continue in the trial court with the participation of minor's counsel to assist the court in reaching a proper custody decision.

Only a small percentage of family law cases are appealed and approximately 9% of those cases actually wind up as a published decision. When a case such as this is formally published its holding can be cited as legal authority by other courts and lawyers. The use of published decisions as a precedent to be followed by other courts is a fundamental aspect of the common law legal system used in the United States and England.


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