Kids Have the Right to Their Own Custody Lawyers

Children over 10 have the right to counsel and a say in child custody matters in Minnesota

“You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” These words familiar for those who watch any cop-based TV show guarantee your basic rights to consult with an attorney in a criminal context. But as of August 2017, when “McKenna’s Law” went into effect in Minnesota, even more people will be hearing the phrase in the future.

The law requires that legal counsel be offered to any child that is 10 years of older in any proceeding in court, other than a truancy hearing. It requires that the child be notified of their right to this effective counsel, and that they have a right to be at any and all hearings that they choose to attend. The law also states that the attorney must only interested in the wishes of their client, the child, and cannot also be the guardian ad litem for the minor.

McKenna Ahrenholz, a 12 year-old, was the driving force behind this law being created. She reportedly said that her father, “punched, starved and neglected her.” And as she bounced in and out of foster care, they kept bringing her back to him. She decided that no one else should go through this.

In 2012, the National Council of Juvenile and Family Court Judges passed a new best practice recommendation that places children in court as a presumed practice—a huge shift from many family law courtrooms. If the child is not in court, the stakeholders must explain to the judge the safety or well-being reasons for the child’s absence. The judge makes the determination that the child’s absence is appropriate for safety or well-being reasons. For example, if they recount the awful things their parents have done and are forced to relive trauma, it could exacerbate their state. There is, however, no assumption that a child might be too young to attend.

Most of the hearings that involve children’s interests involve parental rights hearings or child custody. Before McKenna, children would be taken from their parents with no explanation as to why, and were rarely called upon for their opinion. That’s what the law is attempting to fix.

Children may waive their right to counsel, and they are certainly not forced to go to court for these hearings. But they must be told that they have the option to speak with someone who can look out for their interests if they would like to do so. And they must know they have the right to be in court if they want to be there. Any child, 10 or older now has a right to an attorney and they have the right to go to court for matters that concern them.

If you know of a child in need, find them a reputable and experienced attorney to make certain that they are heard. If you'd like more general information about this area of the law, see our custody and visitation law overview.

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