Why civil Gideon won't fix family law.

• Author: Aviel, Rebecca
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. THE LOGIC OF CIVIL GIDEON II. WHY THIS MODEL IS WRONG FOR FAMILY LAW III. FITTING CIVIL GIDEON INTO SYSTEMIC FAMILY LAW REFORM CONCLUSION INTRODUCTION

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. In Part I, I demonstrate that the logic of the civil Gideon movement rests on the relatively unproblematic premise that the interests at stake in certain civil proceedings are as constitutionally profound and practically significant as the right to physical liberty. I further demonstrate, however, that in urging the necessity of appointed counsel, civil Gideon advocates assume the existence of highly formalized adversarial proceedings in which technical legal expertise is necessary. In Part II, I explain why this model is wrong for most family law cases. In Part III, I explore ways in which civil Gideon might fit into systemic family court reform. I argue that the quest for fairness and equality that animates the civil Gideon movement can be realized in a family court system that emphasizes simplicity, efficiency, and collaboration over formal adversarial procedure.

1. THE LOGIC OF CIVIL GIDEON

   The central rhetorical strategy of civil Gideon advocates is to assert that people enmeshed in civil litigation, especially regarding "basic human needs," are battling over interests that are just as compelling as the physical liberty that is at stake for criminal defendants. (8)

   Consider the following statement:

   It is still "shocking" to our sense of justice that we would incarcerate a criminal who was tried and convicted without an attorney. But is there not yet another truth that must be acknowledged and addressed? Is it not just as shocking that we leave our poor and our most vulnerable to represent themselves in their battles for basic human needs: shelter, sustenance, safety, and health? Whether forced out of the home, terrified by an abuser, or denied government benefits without adequate representation, the poor are confined. The poor are denied due process. The poor do, indeed, suffer a loss of liberty. And in some cases, indeed in many cases, their loss is just as great if not greater had they been convicted of a crime and imprisoned. (9) Or these two, which focus on the importance of child custody battles:

   It seems to me incontestable that the threatened loss of a child is an incomparably greater life shattering event than thirty days for shoplifting. (10) The loss of custody of one's child is a life-shattering event more profound than the prospect of thirty days in jail. The homelessness that may result from eviction could have consequences far more devastating for an entire family than a short jail term for one family member. (11) All of these statements reflect the premise that certain civil interests are as profound as the physical liberty interest that is at stake in criminal proceedings. Especially with respect to a parent's interest in custody of her children, these assertions are persuasive. (12) While the Supreme Court's refusal to endorse this proposition in full is a constant source of frustration for scholars and advocates, (13) even the Court's own case law provides ample support for the notion that this is one of the most venerated liberty interests recognized in constitutional law. (14)

   The problem that I want to illuminate is the assumption that the procedural values that accompany civil proceedings should therefore be the same: full-dress, judge- and lawyer-centered adversary proceedings with the kind of intricate and technical rules that necessitate legal expertise. Much of the civil Gideon discourse reflects such an assumption. Gideon itself, of course, was predicated on the Court's observation that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." (15) Civil Gideon advocates assert that "Gideon's recognition that the lack of counsel distorts the adversary process is no less true in the civil context, at least in cases that implicate fundamental rights or basic human needs." (16) The conclusion that lawyers are necessary to vindicate basic fairness concerns in civil litigation is often predicated upon the nature of adversarial process. (17) One civil Gideon advocate, for example, summarizes research showing that parties with lawyers are far more likely to file motions, request discovery, and receive continuances, thereby using the "procedural mechanisms that are key to success in civil litigation." (18) This result is hardly surprising, but it should inspire some inquiry into whether more motions, discovery, and continuances are in fact what most family law litigants need, a question I take up in the next Part.

   First, I want to explore in more depth the fact that civil Gideon advocates assume--maybe even endorse--the existence of highly formalized adversarial proceedings in the cases involving the most pressing human concerns. This expectation is traceable to the Mathews v. Eldridge test the Supreme Court applies in civil due process cases, which examines the private interest at stake, the risk of erroneous deprivation and the extent to which additional procedures might reduce that risk, and the government's interest in adhering to its chosen set of procedures. (19) This creates an explicit correlation between the seriousness of the private interest involved and the likelihood that a particular procedure is constitutionally required. While the refrain that due process is a "flexible" concept has become quite familiar, (20) this is generally taken to mean that the intricacy and formality of the procedures required rise and fall with the weight of the interests at stake. (21)

   While the Mathews v. Eldridge test instructs that the private interest be weighed against two other factors, we nonetheless intuitively expect adjudicative procedures to become more elaborate as the interests at stake become more profound. (22) The Supreme Court has contributed to this dynamic with its treatment of criminal matters in which physical liberty is threatened; these serve as the gold standard for proceedings in which the intricacy and formality of the governing procedures reflect the...