Due Process for Children: A Right to Counsel in Custody Proceedings


When families are broken up through divorce, separation or death. or when parents’ ability to care for their children is in question, the custody of minor children is determined by the courts. The due process clause of the fourteenth amendment would seem to require that children have the right to be heard through counsel in custody proceedings. Under modern practice in most jurisdictions, however, a child is unable effectively to place his preferences before the court, either by himself or with the assistance ofcounsel, even though the court’s decision will have an enormous impact on the future course of his life.

The landmark case of In re Gault made it clear that constitutional protections apply to children as well as adults. In Gault the Supreme Court held, in part, that due process requires that children have a right to be heard through counsel in delinquency proceedings which could result in their confinement. In so holding, the Court recognized that experience has belied the notion that children are best served by being treated informally in a paternalistic system; delinquency proceedings, at least. are really adversary proceedings and therefore require certain procedural safeguards for the child. The Court found it irrelevant whether the proceedings were denominated civil or criminal, and based its holding on the potential loss of liberty due to confinement in a state institution. But a wide variety of other proceedings in which custody is at issue also pose the possibility of child placements involving serious loss of liberty and property. Al-though the terminology varies from jurisdiction to jurisdiction, the proceedings generally are of four types:

Persons in need of supervision (“PINS”). Most states provide by statute for pro-ceedings whereby children may be declared in need of supervision and, as a result. either institutionalized or placed on some sort of probation. PINS may be sent to the same institutions as delinquents.

Neglect and dependency. These proceedings are brought when children are abused, abandoned or improperly cared for, and do not necessarily rest on a finding of parental fault. Upon a determination that court intervention is required, the child may be re turned to his parents subject to terms of probation, may be institutionalized in the custody of a social services agency, or may be placed in a foster home. Where necessary, the court may terminate permanently the parents’ rights to the child, thus freeing him for adoption without the consent of his parents.

Guardianship. In an appropriate case (such as orphanhood) the court must designate a guardian. This may be someone named by the child’s parents in their wills or a relative or other adult who has an interest in him. If there is no such person available, however, the child may be placed in an orphanage or foster home. Guardianship is sometimes distinct from custody; thus a guardian may be appointed to make certain de- cisions for a child when the parents or others who have custody are incompetent to doso. As used above, however, “guardian” includes the “custodian.”

Divorce or legal separation. When parents separate or divorce, the court decides which parent will have custody of the children, although it is possible that they may be placed in the custody of someone else. Even when the parents agree between them- selves which of them should have custody. the court’s approval of their agreement must be obtained. The court also must determine or approve the parents’ agreements as to visitation rights and support arrangements.

These statutory categories are not exhaustive. Habeas corpus may often be available as a vehicle for the determination of custody. In the widely noted case of Painter v. Bannister, the child’s father temporarily entrusted him to his maternal grandparents; a year and a half later when the father asked for the return of his son. the grandparents refused to give him up. Custody was determined in a habeas corpus proceeding brought by the father. And in addition to statutory and common law proceedings. courts always have the power to determine custody as a matter of their equity jurisdiction.

Despite the potential loss of liberty or property due to custody determinations. the Supreme Court has not yet, as it did in Gault, required the due process protections of a hearing and representation by counsel in any of the above situations in which custody is at issue. Some states, however, have required these protections. most frequently in cases which are viewed as having more serious consequences, such as PINS and neglect proceedings. Nevertheless, all custody cases have serious consequences. and children involved in them have interests at stake which require the due process protection of the fight to be heard by counsel. This Note will develop the proposition that the right of children to be heard and to be represented by counsel should be extended to all proceedings in which custody is to be determined. It will then examine some problems raised by the role of counsel as spokesman for the child’s viewpoint.

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