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Abstract
At present, hundreds of impoverished parents appear unrepresented in civil actions because they cannot afford counsel. The courts, not wishing to impose significant expenses on the counties in which they sit, have yet to recognize a constitutional right to counsel in critical civil actions affecting the family. These decisions do not reconcile with the fundamental rights to parent and to have the state not interfere with the child-parent relationship. As a result of the current inequities, indigent parent-victims of domestic violence often lose custody of their children simply because they cannot afford a lawyer. This article argues the right to counsel should be extended to child custody disputes to level the playing field where only one parent, often the abusive partner, can afford counsel. The Court must decide whether the constitutions of various states provide a remedy for the widespread inequities created in part by the drastic diminution of available free and low-cost legal services. Providing impoverished victims of violence representation in their custody disputes is a necessary first step. The efforts to meet the needs of those who cannot afford an attorney are obstructed by drastic reductions in available resources. Civic and legal aid organizations cannot be the strangers on which low income litigants rely.
Notes
*Tennessee L. Williams, a Streetcar Named Desire 178 (1947) (quoting Blanche DuBois, “I have always depended on the kindness of strangers”).
*Data not available for Portage County.
U.S. CONST. amend. XI.
Supra note *. Ms. DuBois' famous line speaks to the irony of our current legal dilemma. It is true she frequently depended on strangers, but all subsequently abused or abandoned her in her time of greatest need. Her fragility and inability to fend for herself are what brought her to madness. Her comment is earnest in that it shows her complete sense of isolation or loneliness.
The Sixth Amendment to the Constitution, providing for assistance of counsel in criminal prosecutions, was adopted with the Bill of Rights in 1791. The right to assistance of counsel, however, did not imply the right to free counsel appointed by the court or provided by the government. The Court in Johnson v. Zerbst, 304 U.S. 458 (1938), held that the Sixth Amendment entitled an indigent person charged with a federal crime to have counsel appointed. In Gideon v. Wainwright, 372 U.S. 335, 344 (1963), the Supreme Court applied the same rule to criminal prosecutions brought by the states or subdivisions of the states, in felony cases where a conviction would deprive the defendant of life or liberty.
NPR Interview, Gil Halstad, aired on November 22, 2004.
Hannah C. Dugan, Who's Providing Legal Counsel to Wisconsin's Poor?, 74 WIS. LAW. 10 (May 2001).
Margaret Graham Tebs, Lag in Legal Services, A.B.A. J. 67, (2002).
The participating private attorneys are paid a contracted rate of $45/hour out of WJ funds.
Memorandum from Legal Action of Wisconsin and Wisconsin Judicare, to the Wisconsin Trust Account Foundation, Inc. (Sept. 28, 2004) (on file with the authors); see also April Barker, Funding Issues Rock Legal Action, WIS. L. J. (Feb. 2004) at http://www.wislawjournal.com. Legal Action of Wisconsin (LAW) has suffered reduced funding from the Wisconsin Trust Account Foundation as well. This, combined with rising costs without matching increases in other funding sources, adds up to fewer advocates available to serve poor people. “As a result of financial strains, LAW merged its Kenosha and Racine offices…and the Dodgeville office will close this year. The program has also cut a total of 14 full-time equivalent staff positions in 2003, according to [John] Ebbott [executive director of LAW].” Ebbott compared the merger, amid worsening funding shortages, to “rearranging the deck chairs on the Titanic.” Id.
April Barker, Funding Issues Rock Legal Action, WIS. L. J. (Feb. 2004) at http://www.wislawjournal.com (quoting Mike Dally, formerly the president of the LSNeW board and now a member of the LAW board. “There was concern that funding from the Legal Service Corporation would be affected by the 2000 census results as to the area's poverty population.… We knew that the census would hit us hard, and that translated directly into a reduction of LSC funding.” He continues, “But then the economic downturn has probably hit the blue-collar states like Wisconsin harder than other states—so now we're caught in a crunch where we have less funding based on the old census numbers, and more poor people with more legal problems.”) While census numbers are certainly a driving factor in determining LSC funding, the nation's fiscal situation even more determinative.
Legal Service Corp., Senate Appropriations Committee Approves $335 Million for LSC in FY05, LSC Updates (Sept. 20, 2004), at [email protected].
Id.
Id.
Id.
WISCONSIN JUDICARE ATTORNEY HANDBOOK 25 (2003).
See also Wagner v. Milwaukee County Election Commission, 2003 WI 103, 263 Wis.2d 709, 666 N.W.2d 816 (2003); Lister v. Board of Regents, 72 Wis.2d 282,309, 240 N.W.2d 610,626 (1976).
WIS. CONST. art. I, §§ 21(2), 1, 9, 22.
G.A. Res. 217A(III), 3 U.N. GAOR at 71, U.N. Doc. A/810 (1948).
William Vance, The Historical Background of the Legal Aid Movement, THE ANNALS (1926).
Relating to Creating a Rebuttable Presumption Against Awarding A Parent Joint of Sole Legal Custody if the Court Finds That the Parent Has Engaged in a Pattern or Serious Incident of Abuse: Testimony on AB 651 Before the Family Law Committee, (Wis. 2002) (STATEMENT of REPRESENTATIVE TERESE BERCEAU).
Id. By 2002, the number of women receiving victims' services grew to 32,000. Woolery, Michelle, Domestic Violence in Wisconsin: An Overview of Criminal Justice and Training Issues (May 2004), available at: http://www.lafollette.wisc.edu/womenspolicy/WWPP/pdf/DVOverviewComplete.pdf.
Testimony to the Pennsylvania Coalition Against Domestic Violence, Remarks to the Task Force on Child Abuse and Neglect, (Pa. 1992)(STATEMENT OF B. HUNT).
Id.
P. KLAUS & M. RURAL, U.S. DEP'T OF JUSTICE, FAMILY VIOLENCE: BUREAU OF JUSTICE STATISTICS SPECIAL REPORT (1992).
L. EDINGTON & E. LAST, VIOLENCE IN FAMILIES: AN EDUCATOR'S GUIDE TO PROTECT CHILDREN OF BATTERED WOMEN 21 (1991). Research shows that between 90% and 95% of domestic violence is perpetrated by men against women. This article refers to victims with female pronouns for this reason.
95 Women in Violence: Hearings Before the U.S. Senate Judiciary Comm., 101–939 (1990).
Id.
See, e.g., LUNDY BANCROFT, WHY DOES HE DO THAT? INSIDE THE MINDS OF ANGRY AND CONTROLLING MEN, 263 (2002).
See supra note 5.
WIS. STAT. § 767.24(5)(am)(1999–2000).
Wis. Stat. § 767.24(5)(am)(1999–2000).
WIS. STAT. § 767.24(2)(d) (2003) as created by 2003 WI Act 130. See also Memorandum from the State of Wisconsin Department of Health and Family Services, Division of Children and Family Services 2004–03 (March 26, 2004) available at http://dcf.wisconsin.gov/memos/infomemos/2004/2004-03.htm.
See supra note 5.
Id.
WIS. STAT. § 767.24(2)(d) (2003) as created by 2003 WI Act 130. See also Memorandum from the State of Wisconsin Department of Health and Family Services, Division of Children and Family Services 2004–03 (March 26, 2004) available at http://dcf.wisconsin.gov/memos/infomemos/2004/2004-03.htm.
Id.
Id.
See supra note 5.
See also ABA Child Custody Pro Bono Project, Relevant Domestic Violence Statutory Citations, available at http://www.abanet.org/legalservices/probono/childcustody/general_dv_statutes.pdf (showing that in fact, only Connecticut has no domestic violence rebuttable presumption against custody, no best interest factor test including domestic violence, and no domestic violence as a factor to consider in custody cases. There is only a joint custody presumption as stated in CONN. GEN. STAT. ANN. §§ 46b-56a [where parents have agreed or agree in open court]).
Supra note 5. Wisconsin defines primary physical aggressors (PPA) in WIS. STAT. § 968.075. In a custody determination where the parents have been abusing each other, the PPA is determined, and the other party has to rebut the presumption.
LUNDY BANCROFT AND JAY SILVERMAN, THE BATTERER AS PARENT, ADDRESSING THE IMPACT OF DOMESTIC VIOLENCE ON FAMILY DYNAMICS 129 (2002). Consequently, children are kept traumatized in the abusive situation; see also Leigh Goodmark, The Legal Response to Domestic Violence: Problems and Possibilities: Law is the Answer? Do We Know That For Sure?: Questioning the Efficacy of Legal Interventions For Battered Women, 23 ST. LOUIS U. PUB. L. REV. 7, 11–12 (2004)(stating that “Civil protection orders can give victims of violence temporary custody of their children, but mothers frequently found that the violence against them and their children was considered unimportant or irrelevant in permanent custody disputes.”). Id.
Motion of Amicus Curiae the Wisconsin Coalition Against Domestic Violence, Inc. at 4, Kelly v. Warpinski (Wis. Apr. 26, 2005).
See, e.g., Marlene Rapkin, Note: The Impact of Domestic Violence on Custody Decisions, 19 J. JUV. L. 404, 412 (1998) (stating that “judges must find that evidence of battering exists, be aware of the effect battering has on children, and consider domestic violence in crafting their child custody decisions.” It is the opinion of the authors that indigent litigants need assistance in presenting this evidence).
Supra note 27 at 6.
PRES. TASK FORCE ON VIOLENCE AND THE FAM., AM PSYCHOL. ASS'N 40 (1996); see also Mary Becker, Access to Justice: The Social Responsibility of Lawyers: Access to Justice for Battered Women, 12 WASH. U. J.L. & POL'Y 63, 64 (2003) (stating that many men seek custody as part of a pattern of abuse and successfully use the legal system as a “tool in their arsenal,” or a “vehicle of abuse”). Id. at 64, 67.
Supra note 27 at 8. Wisconsin's legislature changed the custody and placement statutory provisions, acknowledging that remaining in an abusive family situation is not in a child's best interest. Unless the abused parent has legal representation, however, she is likely to comply with the abuser's demand for sole or joint custody and primary placement or to return to the batterer.
Judith Gische, Essay: Domestic Violence as a Factor in Custody Determinations in New York State, 27 FORDHAM URB. L.J. 937, 937 (2000).
Supra note 27 at 6.
Violence Against Women Act of 2000 (“VAWA II”), Pub. L. No. 106–386, 114 Stat. 1464, 1491 (codified as amended in scattered sections of 8, 18, 20, 28, and 42 U.S.C.).
Leigh Goodmark, The Legal Response to Domestic Violence: Problems and Possibilities: Law is the Answer? Do We Know That For Sure?: Questioning the Efficacy of Legal Interventions For Battered Women, 23 ST. LOUIS U. PUB. L. REV. 7, 39 (2004).
The term “child custody” in this context refers to custody, placement, and visitation. These issues are often linked in family law proceedings. In many instances, the issue begins as a complaint for custody and results in a placement or visitation order. Important in evaluating a right to counsel is whether a parent's right to continued access to his or her children is at issue in the proceeding.
JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT, ch. XV, para. 171 (Thomas Peardon, ed., Hackett 1980) (1690).
Deborah J. Chase, Pro-Se Justice and Unified Family Courts, 37 FAM. L.Q. 403 (2003).
ACCESS TO JUSTICE: MEETING THE NEEDS OF SELF-REPRESENTED LITIGANTS—EXECUTIVE SUMMARY 1 (2003) [hereinafter ACCESS].
EVALUATION OF PRO SE LITIGANTS IN DIVORCE AND DIVORCES INVOLVING CHILDREN IN NORTHERN WISCONSIN (hereinafter, WJ Study) (October 2004); see infra Appendix A. The study investigated the number of parties appearing unrepresented in divorce actions from January 1, 2003 to December 31, 2003 for the following counties: Ashland, Barron, Bayfield, Burnett, Chippewa, Clark, Douglas, Dunn, Eau Claire, Florence, Forest, Iron, Langlade, Lincoln, Marathon, Marinette, Menominee, Oconto, Oneida, Pepin, Pierce, Polk, Price, Rusk, St. Croix, Sawyer, Shawano, Taylor, Vilas, Washburn, Waupaca, and Wood (Data not available for Portage County.).
See also WISCONSIN PRO SE WORKING GROUP, OFFICE OF THE CHIEF JUSTICE OF THE WISCONSIN SUPREME COURT, Pro Se Litigation: Meeting the Challenges of Self-Represented Litigants in Wisconsin, 7 (Dec. 2000), available at http://www.wiscourts.gov/about/pubs/supreme/docs/prosereport.pdf (stating that in Wisconsin, the frequency of family law matters being handled pro se has continued to increase, with up to 70% of family law matters involving at least one pro se litigant); see also supra note 27 at 4. Although there are no statewide statistics on the numbers of pro se litigants who are battered women, judges, court commissioners, attorneys and guardians ad litem report that pro se litigants are disproportionately battered women.
BUREAU OF HEALTH INFORMATION, WISCONSIN DEPARTMENT OF HEALTH AND FAMILY SERVICES: WISCONSIN MARRIAGES AND DIVORCES (2003).
See infra note 62 (quoting Robert Grey, “In order for citizens to have faith in their court system, all people must have access to the courts when necessary. A fundamental value in the American system of justice is that the stability of our society depends upon the ability of the people to readily obtain access to the courts, because the court system is the mechanism recognized and accepted by all to peacefully resolve disputes.”). Id.
Id.
Joni B., 202 Wis. 2d at 11.
Jona Goldschmidt, The Pro-Se Litigant's Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance, 40 FAM. CT. REV. 36, 36–37 (2002).
Id.
Id. at 37.
Id.
See supra note 62 (emphasis added). Grey continued by quoting U.S. Supreme Court Chief Justice William Howard Taft, “[T]he real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a fair hearing by independent courts to each individual.” Id.
Supra Section III.
ACCESS at 3.
In May 2010, the Hon. Jonathan Lippman, Chief Judge of the New York Court of Appeals proposed a civil Gideon program for New York State in cases involving basic human needs. Judge Lippman will conduct hearings in the fall of 2010 to assess the extent and nature of the unmet need for civil legal representation, to result in legislative recommendations. To maintain the legal system's foundation of equal access to civil justice, Judge Lippman stated, “I am not talking about a single initiative, pilot project or temporary program but what I believe must be a comprehensive, multifaceted, systemic approach to providing counsel to the indigent in civil cases.” Speech of Hon. Jonathan Lippman, May 3, 2010, available at: http://www.nylj.com/nylawyer/adgifs/decisions/050410lippman.pdf (last visited July 8, 2010).
See, e.g., Supreme Court of Wisconsin, Self-Help Center: Representing Yourself—Should I Represent Myself, available at http://www.wicourts.gov/services/public/selfhelp/selfrep1.htm (last visited July 8, 2010) (instructing potential pro se litigants that,
-
Every case is important, but some cases may have a bigger effect on you because of…other people involved (like children). Cases with more money or people to consider are more complicated. Using a lawyer will make these cases less confusing and upsetting, and prevent mistakes that could be difficult or impossible to correct after the case is over.
-
In using these forms and instructions, you acknowledge you are advised to get an attorney of your choosing to discuss the particular issues and disputes in your case. You understand that these forms and instructions are provided as a convenience, and ARE NOT legal advice. Further, these forms and instructions may not cover all the questions of your specific case. If you have any questions, you should seek the assistance of an attorney.
ACCESS at 3.
THOMAS HOBBES, LEVIATHAN, pt. II, ch. 30 (1651).
Robert Grey, Access to the Courts: Equal Justice for All, eJOURNAL USA: ISSUES OF DEMOCRACY, (Aug. 2004) at http://usinfo.state.gov/journals/itdhr/0804/ijde/grey.htm.
Id.
Id.
State ex rel. Fitas v. Milwaukee County, 65 Wis. 2d 130, 134, 221 N.W.2d 902 (1974); see also, State ex rel. Chiarkas v. Skow, 160 Wis. 2d 123, 137, 465 N.W.2d 625 (1991) (invoking same); Contempt in State v. Lehman, 137 Wis. 2d 65, 76, 403 N.W.2d 438 (1987) (invoking same).
202 Wis. 2d 1 (1996).
Chiarkas, 160 Wis. 2d at 137–38 (citing Lehman, 137 Wis. 2d at 76).
Joni B., 202 Wis. 2d at 11.
ACCESS at 2.
Id. at 1.
Id. at 2.
Earl Johnson, Jr., Beyond Payne: The Case for a Legally Enforceable Right to Representation in Civil Cases for Indigent California Litigants, 11 LOY. L.A. L. REV. 240, 250 (1978).
Joni B., 202 Wis. 2d. at 12.
Piper v. Popp, 167 Wis. 2d 633, 650, 482 N.W.2d 353 (1992).
Brief of Amicus Curiae Brennen Center for Justice at 4, Nicholson v. Scoppetta, 2003 WL 22130666 (2d Cir. 2003) (No. 02-7079(L)).
452 U.S. 18, 24 (1981).
Id. at 26, 32.
Lassiter, 452 U.S. at 24–25 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).
Piper, 167 Wis. 2d at 658.
See Goldberg v. Kelly, 397 U.S. 254, 270 (1970) (“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”); see also supra note 82 at 20 (identifying that the Supreme Court has recognized that due process may require the government to permit individuals to obtain the assistance of attorneys or other advocates at administrative proceedings and civil trials).
Piper, 167 Wis. 2d at 659.
Id. at 647, citing Lassiter, 452 U.S. at 27.
Supra note 83 at 7.
Nicholson v. Scoppetta, 203 F. Supp. 2d 153, 255 (E.D.N.Y. 2002).
See Laura M. Fernandez, Domestic Violence and the Child Welfare System, 189 PRACTICING L. INST/CRIM. 155, 158 (2002) (stating that when the government removes children from domestic violence survivors, it “reinforces to women that they are powerless and will be punished, no matter what they do.”) Id. In custody, placement and visitation proceedings, the state is not “removing the child” per se, yet the loss of sole custody is an equivalent.
Nicholson, 203 F. Supp. 2d at 228.
Lassiter, 452 U.S. at 27.
Id. at 27–28.
Id. at 28.
Id.
Honorable Shirley Abrahamson, Remarks of the Hon. Shirley S. Abrahamson Before the American Bar Association Commission on Separation of Powers and Judicial Independence, Washington, D.C., (Dec. 13, 1996) in 12 ST. JOHN'S J.LEGAL COMMENT. 69, 74–75 (1996).
Joni B., 202 Wis. 2d at 16.
379 Md. 100, 840 A.2d 114 (2003).
Id. at 133–34.
Id. at 134.
Id.
Lassiter, 452 U.S. at 36 (Blackmun, J. dissenting) (quoting Gideon v. Wainwright, 372 U.S. 335, 344 (1963)).
Frase, 379 Md. at 139.
Id. at 141.
See supra note 62 (quoting Robert Grey, “If the judiciary is the guardian of the rights of the people, the organized bar and its lawyers are the foot soldiers. The legal profession and the practicing bar bear a large share of the burden. With this in mind, the American Bar Association (ABA) has established 11 goals to be pursued in its quest of ‘Defending Liberty and Pursuing Justice’. The second of these goals is ‘To promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social condition.’” This source suggests there should, in theory, be no concern by the organized bar in trying to establish this civil Gideon.).
Frase, 379 Md. at 130.
CICERO, DE RE PUBLICA DE LEGIBUS I 49 (Clinton Walker Keyes, trans., Harvard Univ. Press 1928) (circa 44 B.C.).
Frase, 379 Md. at 132.
530 U.S. 57, 65–66 (2000).
Id.
Nicholson v. Williams, 203 F.Supp. 2d 153, 255 (E.D.N.Y. 2002); see also Id. at 251.
Stanley v. Illinois, 405 U.S. 645, 651 (1972).
Id. (citing Griswold v. Connecticut, 381 U.S. 479, 496 (1965); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); and Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).
Lassiter, 452 U.S. at 27.
REGINALD HEBER SMITH, JUSTICE AND THE POOR 12 (1919).
WILLIAM SHAKESPEARE, AS YOU LIKE IT, act 3, sc. 2.