Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Thursday, January 14, 2010

Abel: "Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws"

Laura Abel (Brennan Center for Justice at NYU School of Law) has posted Keeping Families Together, Saving Money, and Other Motivations Behind New Civil Right to Counsel Laws, Loyola of Los Angeles Law Review (forthcoming), on SSRN.  Here is the abstract:

In 2006, the American Bar Association’s House of Delegates unanimously passed a landmark resolution, calling on states to provide a right to counsel in civil cases in which “basic human needs” are at stake. In the years leading up to the resolution’s passage, and since then, Alabama, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Montana, New York and Texas have enacted laws expanding the right to counsel in civil cases.

While most of the bills concerned child welfare in some way, their approaches varied widely and included: 1) expanding an existing right to counsel in termination of parental rights cases brought by the state so that it now covers cases in which a private individual is seeking to terminate parental rights; 2) providing counsel for parents at the early stages of child abuse and neglect cases; 3) strengthening an existing right to counsel for parents in child abuse and neglect cases by taking various measures to improve the quality of representation provided; 4) requiring the state government (or a nonprofit providing foster care services for the state) to retain an attorney to file a petition to adjust the immigration status of children who appear eligible for special immigrant juvenile status, and 5) providing counsel to parents in child custody proceedings pending in the state’s trial courts of general jurisdiction.

 Although there is a growing body of law review articles regarding the civil right to counsel, until now the passage of these statutes has received little attention. Rather, most of the recent literature focuses on the potential for judicial expansion of the right. This article attempts to understand the reasons for legislative expansion of the right, and to draw some lessons for the future. Section II examines the legislature’s motivations for passing each statute. Section III explores motivations common to many of the bills, including expectations of financial savings, a desire to fix failing state child welfare bureaucracies, and notions of fundamental fairness. Most of the bills were enacted with little or no opposition. Section IV draws lessons that may prove helpful to advocates wishing to heed the ABA's call to expand further the right to counsel in civil cases.


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Appointed counsel in contested custody actions? Nice idea, but given how tight many state and local governments are on money right now I doubt that proposal will see the light of day anytime soon.

Posted by: Scott | Jan 15, 2010 8:47:26 PM

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