Academic journal article The Yale Law Journal

Why Civil Gideon Won't Fix Family Law

Academic journal article The Yale Law Journal

Why Civil Gideon Won't Fix Family Law

Article excerpt



As Gideon v. Wainwright (1) reaches its fiftieth anniversary, it continues to serve as the model for scholars, judges, and advocates who emphasize the need for more equitable access to counsel for civil litigants. The term "civil Gideon" now commonly serves as a shorthand for the idea that the right to appointed counsel for indigent criminal defendants recognized in Gideon should be extended to civil cases involving interests of a sufficient magnitude. (2)

Civil Gideon advocates build their case on the premise that the interests at stake in certain types of civil cases are as compelling and as constitutionally significant as the criminal defendant's interest in physical liberty. Child custody matters figure especially prominently in these discussions, (3) and this is readily understandable: that infringements on the parent-child relationship are profound invasions of liberty has been recognized again and again. (4) Even where the matter is a custody dispute between two parents, rather than a termination proceeding initiated by the state, the stakes are clearly high when litigants are battling over the time they will be allowed to spend with their children and the right to make significant parenting decisions concerning education, religion, health, and the like. (5)

Underlying the civil Gideon movement, however, is an assumption that because a parent's right to the care and custody of her children is as important as a criminal defendant's right to physical liberty, both contexts should reflect the same procedural character: full-dress adversary proceedings with robust and technical rules, where lawyers truly are necessary to fair and effective participation. The more we learn about custody disputes, however, the more it appears that this isn't what family law needs. Most litigants want proceedings that are shorter, simpler, cheaper, more personal, more collaborative, and less adversarial. These are procedural values that are--and should probably remain--foreign to criminal proceedings. While family law scholars and reformers have commented on the uncomfortable fit between the adversarial model and the special qualities of domestic-relations disputes, (6) these insights have been absent from the civil Gideon discourse.

This Essay brings together these strands, asserting that we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. Civil Gideon discourse trades on the gravitas of constitutional criminal procedure but isn't sufficiently tailored to the unique qualities of family law. (7) These unique qualities challenge us to design custody dispute resolution systems that honor the constitutionally significant interests at stake while recognizing the truly unique posture in which separating parents litigate, which is different from both the criminal context that gave rise to Gideon and the administrative law context from which the Court's civil due process precedents emerged. To pursue civil Gideon as a stand-alone reform falls short of this challenge. It accepts the primacy of a lawyer-centric adversary system as the preferred means for resolving family law disputes in the face of growing evidence that this framework does more harm than good for most domestic-relations litigants. Civil Gideon responds in an admirable and important way to the unfairness of litigating without a lawyer in a system where lawyers are indisputably necessary. But it doesn't challenge the necessity of lawyers or envision a world in which parents can resolve their disputes more quickly and more collaboratively than in lawyer-centered systems.

This Essay proceeds in three parts. …

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