Family Law and Civil Gideon: The Right to Counsel in Civil Cases

January 13, 2009

What is a Civil Gideon?

Recently there has been a push by legal communities, including here in Hennepin, Anoka, and Wright counties in Minnesota, to investigate and implement something called a “Civil Gideon” – or a right to counsel in civil cases where important rights are at stake.  In 2006, the American Bar Association (link:

http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf
) passed this resolution:

RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.

In 2008, the Minnesota State Bar Association has formed its own Civil Gideon Task Force (link:  http://www.mnbar.org/committees/CivilGideon/) to investigate whether a civil right to counsel should exist in Minnesota.

WHAT HAS THIS TO DO WITH FAMILY LAW?

When I first heard about this movement, I immediately thought of several family law situations in which the parties involved in proceedings which go beyond the “ordinary” legal issues arising out of divorce, alimony, child custody, child support – or even, in our Trusts and Estates practice – arising out of probate and other issues involving wills, heirs, and trusts – parties who have absolutely no resources to hire a private attorney—and lack the criteria to receive aid from the various legal aid agencies in Minnesota. 

Let me explain.  Once case in particular that comes to mind is a case where Moore Family Law represented the grandparents in their petition for third party child custody.  The mother, not our client, was only 19, had no job, and a history of substance abuse problems.  She was willing to accept help from the child’s grandparents as legal custodians for awhile—but she was scared of what might happen in the future regarding child custody.  As much as she knew she couldn’t care for her child in her current state, she still wanted to some day care for her child:  in the short run, she already had enough problems stemming from her previous divorce. 

I think we worked out a good compromise around the family law issues, a compromise that gives her room to rehabilitate herself and become a mother again; but she would have benefited greatly from having her own attorney during the child custody proceedings.  Here was a mother faced with losing her child, and she had no one to advocate for her or to explain the consequences of her decisions.  She needed an attorney not only for family law matters but also for legal matters arising from her substance abuse — but she could afford neither a family law attorney nor a criminal one; and legal aid providers do not typically take clients involved in third party child custody actions. 

Compare this with the situation in which an action has been initiated to terminate a mother’s parental rights.  This is by no means an easy situation but there, the right to counsel is specifically provided for in Minnesota statute:  “(a) The child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court.”  Minn. Stat. .§ 260C.163, subd. 3.  Here, at least, the mother has some right to an attorney.

WHAT MOORE FAMILY LAW IS DOING TO HELP IN MINNESOTA

Because I so often see cases where a party needs family law representation and also needs another type of lawyer, and because I think it is an injustice to not provide for those parties who face not only divorce, alimony, custody and child support issues but also issues of mental health, substance abuse, and in some cases criminal matters, — because we at Moore Family Law want to provide for those most in need, I am on the Civil Gideons Task Force, serving on the unmet needs committee. 

Here I am able to bring the expertise of Moore Family Law to focus on the tasks at hand.  Our job is to investigate what potential clients are out there who are not being served.  There is ample data on the services provided by legal aid; but what about those cases turned away?  And what about those cases where legal aid can only provide an attorney that knows the specific area of the law in a very general way?  Is that adequate counsel?  These are questions that we discuss at our committee and Task Force meetings so that we can lay a strong basis for the right to legal counsel where it is needed most.   

Emily Matson, 
Moore Family Law – Representing Your Family’s Future 

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