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Court Rulings re: Child Custody

Parent Right to Counsel in Custody Cases
Alaska Trial Court Provides Government-Financed Right to Counsel to Parent in Child Custody Case in Which Opposing Parent Has Private Counsel
August 14, 2007

http://www.brennancenter.org/dynamic/subpages/download_file_50576.pdf

On August 14, 2007, the Alaska Superior Court (a trial level court) ruled that court-appointed counsel must be provided to a parent in a child custody case if that parent is unable to afford counsel, and if the other parent has private counsel.   In Gordanier v. Jonsson , each party sought primary custody of their daughter. The mother, Siv Betti Jonsson, requested a court-appointed attorney because her opposing party, the father, was represented by private counsel and Ms. Jonsson was unable to afford an attorney.  The court ruled that as a matter of constitutional due process and equal protection, Ms. Jonsson was entitled to counsel. Although Alaska had previously established the right to counsel for parents in child custody cases when one party is indigent and the other party is represented by a "public agency," the new ruling expands the right by providing it to parents when the opposing parent has retained private counsel.  Alaska Legal Services Corporation, the Alaska Network on Domestic Violence, and the Sexual Assault Legal Advocacy Project filed a joint amicus brief in support of providing counsel to Ms. Jonsson.  The court stated, "The right implicated in Ms. Jonsson's case is a fundamental right - the right to the care, custody and control of her child.  No state interest is compelling enough to outweigh the harm to a litigant such as Ms. Jonsson.  Budgetary concerns are not compelling enough to justify burdening a fundamental right . . . ." 

The Court noted that:

  • The interest at stake was "one of the most basic of all civil liberties, the right to direct the upbringing of one's child . consistently . recognized by the United States Supreme Court as being among the 'liberties' protected by the due process clause of the Federal Constitution."
  • There was a strong state interest in divorce-child custody proceeding, in that legally binging marriages and divorces were wholly creations of the state, and child custody provision in divorce orders were fully enforceable by the state.
  • Child custody determinations were among the most difficult in the law; a parent without the aid of counsel would be at a decided and frequently decisive disadvantage, especially in light of the emotion dimensions and likely distraught frame of mind of the parents.

 

 

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