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Editorial Advisory Board: It’s the children who matter

We support Delegate Samuel (“Sandy”) Rosenberg’s proposed House Bill 348, “Civil Right to Counsel-Implementation”), and encourage the General Assembly to pass it this session as long as it is budget-neutral. This legislation would implement a Judicare pilot project to provide free legal representation in contested child custody proceedings to indigent parents who meet income eligibility requirements. Certain counties (Baltimore City, Prince George’s County, and Dorchester, Somerset, Wicomico, and Worcester counties) would implement this pilot program, with oversight by a select workgroup. The bill would also fund the pilot program with initial appropriations in the amount of $757,500 for fiscal year 2017, and increase that amount to slightly over $3 million in fiscal year 2020. Existing funding for the Judicare program would not be affected.

This bill arises from the “Civil Gideon” movement which endorses a spectrum of ways to provide counsel to low-income parties in civil cases. This board is divided as to whether there is a constitutional right to an attorney in civil cases (as one end of this spectrum believes). However, if there is ever an area of law where exploring providing a no-cost lawyer to indigent parties in civil cases is worthwhile, it is in the area of family law and especially custody disputes.

Numerous clients who face the loss of, or restrictions on, their right to custody of their children say that such an outcome is as bad as, or even worse than, incarceration in a criminal case. Furthermore, the right of parents to raise their children has been held to be a fundamental right.

The effect of not having counsel in any litigation puts the self-represented party at a distinct disadvantage. Even when both parties are pro se, there are still very good reasons to provide indigent litigants with counsel. Cases usually move faster through the court system and are typically more likely to settle, thus using less judicial resources, where lawyers are involved. Judges deciding custody disputes have to take a great deal of time in pro se cases to assure they have developed all the necessary facts to establish criteria on which to base a decision. It typically takes the court a longer time to make such decisions without counsel to develop these facts. While lawyers can be long-winded and do admittedly sometimes slow down cases, for the most part, their knowledge of the law and procedure helps move litigation to a swifter conclusion. And, for children whose parents are in a custody dispute, resolving the case quickly has great advantages emotionally as well as financially for the entire family.

Existing precedent

There is already precedent for providing free representation to parties in custody matters. Parents in Child In Need of Assistance (“CINA”) cases are already entitled to legal representation provided by the Office of the Public Defender or a free advocate. These are matters where the Department of Social Services is taking some action affecting parental rights, including removing a child from a home and into the guardianship of the Department of Social Services. While that does involve state action, CINA cases are civil cases in which custody is at issue.

Other states are also exploring ways to provide counsel to indigent parties in custody disputes. For example, California and New York have passed laws to provide a right to counsel for income-eligible litigants not only in child custody litigation, but also domestic violence cases.

Because this pilot program would only provide lawyers for the custody part of family law cases, there is concern that the attorney’s scope of legal representation would have to be limited. However, it is possible for attorneys to define the scope of their representation in a particular case. This is happening more than it was in the past. And, Maryland has done well in preventing unnecessary expenditures in the existing Judicare program.

The need for free counsel in custody cases for low income parties is underscored by the 2013 Current Status of Pro Bono Service Among Maryland Lawyers Report. It found that family law matters continue to be one of the areas of law in which the most pro bono hours were reported. However, even with this free service being offered to so many family law clients, the need still greatly exceeds the demand.

We support this legislation with its limited pilot project to see if counsel can be provided to indigent parties in custody cases in a cost-efficient manner that helps resolve the very difficult situation of low income parents facing the loss of custody of their children.

Editorial Advisory Board member Caroline Griffin did not participate in this opinion.

If there is ever an area of law where exploring providing a no-cost lawyer to indigent parties in civil cases is worthwhile, it is in the area of family law and especially custody disputes.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Wesley D. Blakeslee

Arthur F. Fergenson

Daniel F. Goldstein

Caroline Griffin

Elizabeth Kameen

Stephen Meehan

C. William Michaels

Gale Rasin

William Reynolds

Norman Smith

H. Mark Stichel

Ferrier R. Stillman

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.