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Is there a constitutional right to an attorney during a child custody hearing?

by | Mar 27, 2017 | Custody & Visitation, Family Law, Firm News

In the recent case of Dennis O v Stephanie O. the Alaskan Superior Court heard the case of Dennis O who claimed that because his ex wife had an attorney during their child custody hearing his due process rights and self incrimination rights were violated.  Dennis alleged that his wife was able to afford an attorney.  He argued that because of his indigence that he should be appointed an attorney.  He alleged that prior Alaskan decisions had awarded counsel to parties who were indigent.  He further argued that because the ex wife alleged potentially criminal allegations against him he should be appointed free counsel.

On appeal the Alaskan appellate Court noted that in prior Alaskan cases involving child custody the courts had appointed indigent counsel for the parties because the parents were facing termination of parental rights not just a custody dispute. The appellate court further added that Due Process is a result of notice and a failure to be heard.  They compared the termination of parental rights to a custody dispute and stated that when a parent has the chance to lose their parental rights they face a much more egregious outcome if they are not appointed counsel.  In a normal custody proceeding although contentious and involves high emotions there is at no time the potential to lose your rights to your child.

The Alaskan Court further added that although fairness is a key issue that the Due Process rights of the Constitution adhere to when appointing a lawyer to a family setting not all cases fall into that parameter where appointment is necessary.  The Family law courts have many avenues for a litigant who represents themselves to avail themselves of.  There are self help centers and alternative dispute centers for the parties.  In addition, the Court can appoint a Guardian Ad litum, an attorney for the minor child and can order a child custody investigation.

Furthermore, the Appellate Alaskan Court brought probably the most important aspect of the appeal by Dennis O. that the children’s best interest is at the forefront of the litigation between the parents.  That the welfare of these children is most important to the Court.  Thus to appoint a counsel to an indigent party just because there is an unequal position in the litigation because one party is not represented by counsel misses the point of the Family Court.  The appellate Court pointed out that to appoint the indigent party an attorney to cause more conflict over the children would cause more harm than good.  The Family Law court is to determine the best interest for the child.

When examining the class of litigants who fall under the umbrella of unrepresented litigants in family law cases, the appellate court determined that the cost benefit analysis of appointing lawyers for these class of litigants was very costly as compared to appointing for litigants facing termination of parental rights. Therefore the benefit was high for the self represented litigant the cost outweighed the benefit in these type of cases.