Why You Don’t Have a Right to an Attorney in Family Court

All Americans know that if they’re charged with a serious crime, one that could result in prison time, they are entitled to a court-appointed attorney, paid for by the State. This wasn’t always the case. Up until 1963, there was no right to a court-appointed attorney for State crimes. If someone was charged with a federal crime and they couldn’t afford an attorney, the federal government was required by the Sixth Amendment of the Constitution to provide one, but a an indigent defendant in a State criminal action was on their own.

In 1961, Clarence Earl Gideon was arrested for breaking and entering—a felony in Florida. Gideon asked the Florida court to appoint an attorney for him, but at the time, Florida only appointed attorneys for those charged with capital offenses. Gideon was facing prison time but not death. The trial court denied his request. He represented himself and was convicted. He was sentenced to five years in prison. He sued the Secretary of the Florida Division of Corrections Wainwright in State court for violating his Sixth Amendment rights. He lost and appealed to the Florida Supreme Court, where he lost again. Gideon finally appealed to the U.S. Supreme Court and was ultimately successful.

In 1963, the Supreme Court found that the protections of the Sixth Amendment of the Constitution were incorporated into the Fourteenth Amendment and were therefore binding on the States. Florida had to provide counsel for indigent defendants who were charged with crimes which could result in prison time. From that time forward, indigent criminal defendants charged with serious crimes have had a right to a court-appointed attorney. However, the same right isn’t available to defendants in family court, because the Court has held that the Sixth Amendment only applies in criminal cases. Even so, under the Doctrine of Incorporation, there is a strong argument that the Fifth Amendment’s guarantee of Due Process protects the rights of unrepresented parents who have had their children removed by CPS or because of a custody order.

The Fifth Amendment guarantees procedural and substantive due process. Procedural due process means that when people are facing an adverse decision by a government entity, they have a right to notice and a right to be heard. Substantive due process means that the government cannot pass laws that infringe on a fundamental right guaranteed by the Constitution. Both of these guarantees demand that indigent parents faced with a court-ordered custody arrangement.

An unrepresented parent cannot be fully heard in family court, because without legal training, they don’t understand the process or how their rights are affected. They cannot exercise their right to be heard if they don’t understand the rules of evidence and procedure. Failing to object or raise an issue at one hearing can prevent them from raising the issue at trial. It’s fundamentally unfair under the Fifth Amendment to require indigent parents to represent themselves when the other parent or the State is fully represented. Even so, the U.S. Supreme Court has held that when physical liberty is not at stake there is no presumptive right to counsel.¹

In holding that there is no right to counsel in civil matters, the Court relied heavily on the 1976 case of Mathews v. Eldridge.² There, even though the Court recognized that Eldridge had a property interest in the Social Security benefits that were denied by the Administration, there was no right to counsel because the concept of Due Process is “fluid,” requiring a three part analysis before determining if a party’s rights have been violated:

(1) the private interest that will be affected by the official action;

(2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and

(3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail. (emphasis added.)

The U.S.Supreme Court has long held that parenting is a fundamental right.³ A State’s refusal to provide court-appointed counsel is a de facto law depriving parents of their fundamental right to parent, something that clearly runs afoul of the guarantee of substantive due process of the Fifth Amendment, which applies to the States through the Incorporation Doctrine. Parents have a fundamental right to raise their children. Unrepresented parents are deprived of this right when a court removes a child from their custody. A state must protect a criminal defendant’s Sixth Amendment right to counsel by providing an attorney to indigent defendants facing serious charges. That same protection should also be afforded to a parent’s fundamental right to parent and their fundamental right to Due Process, but because it might add to the State’s fiscal burden, the holding in Mathews v. Eldridge applies. If it’s a choice between a parent’s fundamental right and money, money wins. This short-sighted, ill-thought-out ruling from the last century lays bare the uncomfortable truth —fine-minded people are all for Due Process, as long as they don’t have to pay for it themselves.

Only Massachusetts provides court-appointed attorneys to low-income residents involved in guardian/custody cases.

How we will pay for it isn’t the real question. Here’s the real question: How are we paying for not providing court-appointed counsel to indigent parents in custody cases? It’s an honest inquiry. The honest answer is we pay for it with dead parents, who kill themselves because of the emotional devastation of having their children removed by court-order. We pay for it with children who face family instability and turn to drugs, alcohol, pornography, and other destructive behavior to cope with being forcibly separated from a parent they love. We pay for it with adults who were removed from their biological parents and must cope with not knowing where they come from. We pay for it with devastated grandparents who will never see their grandchildren again—grandparents who weren’t even considered as caregivers for the removed child.

These heartbreaking stories play out every day across the U.S. In a country that touts its concern with Due Process, the failure by most States to provide court-appointed counsel to indigent parents in crisis is a glaring reminder that not everyone here enjoys equal protection under the law. It’s time for this to change. PLAN is committed to advocating for the right to counsel in family court matters. For information on Civil Gideon rights in your state, check the Resources page which is updated regularly.

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¹Lassiter v. Department of Social Services of Durham County, 542 U.S. 18 (1981).

²424 US 319 (1976).

³Troxel v. Granville, 530 U.S. 57 (2000).

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