American Bar Association

ABA brief urges appointment of counsel in Alaska custody case where opponent has private lawyer

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The Alaska Constitution requires the appointment of counsel for an indigent parent in a child custody case when the opposing party is represented by a private lawyer, the American Bar Association asserts in an amicus brief.

The Alaska Supreme Court invited the ABA to submit the brief (PDF), according to an ABA press release. The brief has been filed with the clerk’s office for review, as required by state supreme court procedure.

The Alaska Supreme Court has previously held, in a 1979 decision, that appointed counsel is required when the opposing party in a child custody case is represented by a lawyer provided by a public agency. The court decision relied on the Alaska Constitution’s due process guarantees.

The result should be no different when the opposing party is represented by a private, rather than a public, lawyer, the ABA brief says. “The pure happenstance” that the representation is by a private lawyer “does not alter any of the disadvantageous consequences for an unrepresented parent,” the ABA asserts.

The ABA argues that both due process and equal protection guarantees in the Alaska Constitution require a right to counsel in the case.

“The ABA also submits,” the brief says, that a right to counsel in all child custody proceedings in which the opponent has a lawyer “will inevitably enhance the quality and reliability of the outcomes reached in such cases, will foster the objectives of judicial economy and efficiency, and will diminish the extent to which members of the judiciary are confronted with situations in which their obligation to remain neutral and impartial is placed in conflict.”

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