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Legal Access

The state of Minnesota has a long history of providing minors access to its legal system. In the 1960's when cases were coming before the United States Supreme Court regarding whether children had a constitutional right to counsel (particularly in delinquency proceedings), Minnesota was one of a few states that already gave a minor the right to counsel. Although the original focus of the nation's examination of rights of children to counsel was on delinquency, it led to a focus on procedural due process rights in other proceedings involving children, especially in child protection proceedings.362

Today in Minnesota, the primary way in which minors gain access to the legal system is through the GAL system. The GAL is appointed by the court to represent the ``best interest'' of the child. The responsibilities and obligations of the GAL are outlined in Minnesota General Practice Rule 908.01. These responsibilities can include: independent investigation and judgment, gathering information, participating in negotiations, and monitoring the case by reviewing documents; meeting with and observing the child and considering the child's wishes, as appropriate; and interviewing parents, caregivers, and others with knowledge relevant to the case.363 The GAL must make written and/or oral reports to the court regarding the best interests of the child, including conclusions, recommendations, and the facts of the case upon which they are based.364

GALs are appointed in several different instances. They can be appointed in cases of divorce where custody is an issue. In any proceeding for child custody or divorce in which an allegation of domestic child abuse or neglect has been made, the court must appoint a GAL to represent the child's best interest.365

In child protection cases, pursuant with Minnesota Statute Annotated 260C.163, the minor has the right to effective assistance of counsel in connection with any proceeding in juvenile court. Also, if they desire counsel but are unable to employ it, the court will appoint counsel to represent the minor if it feels that such an appointment is appropriate. However, counsel for the minor cannot also act as the minor's GAL.366 Often the minor has both an attorney and a GAL, with the attorney representing the minor's position and what the minor may feel is her best interest, and the GAL represents what she feels is the minor's best interest.367 These two perspectives may not be the same.368

A GAL will also be appointed by the court to protect the interests of the minor if the minor is without a parent or guardian, if the minor's parent is a minor or incompetent, or if the parent or guardian is indifferent or hostile to the minor's interests.369 The court may also use its discretion to appoint a GAL to protect the interests of the minor in any case where the court feels it is desirable. It is unclear what procedure minors have to go through in order to bring a case themselves, but since there appears to be no statute forbidding minors bringing cases, and Minnesota guarantees a minor's right to counsel and representation through a GAL, it is reasonable to infer that they can also bring cases with proper representation.



Footnotes

...362
Gail Chang Bohr, Public Interest Law: Improving Access to Justice: Children's Access to Justice, 28 Wm. Mitchell L. Rev. 229 (Lexis, 2001).
...363
Minn. Gen. Prac. R. 908.01 (Lexis 2001).
...364
Id.
...365
Minn. Stat. Ann. 518.165 (Lexis 2001.)
...366
Id.
...367
Id.
...368
Id.
...369
Minn. Stat. Ann. 260C.163 (Lexis 2001).

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