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November 01, 2015

ABA Urges Alaska's Top Court to Require Appointed Counsel in Certain Custody Cases

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

The American Bar Association has filed an amicus brief asking the Alaska Supreme Court to order state officials to provide legal counsel to an indigent parent in a child custody case in which the opposing party is represented by a private attorney.

The brief, filed at the invitation of the state’s highest court, asserts that the due process and equal protection clauses of the Alaska constitution require the state, at its expense, to offer counsel to the indigent father. This is because counsel for an indigent defendant is already required under Alaska law in child custody cases when the opposing party is represented by counsel supplied by the state. In the case before the court, the ex-wife of Dennis Olson is seeking modification of custody and child support orders and is represented by private counsel.

Since 2006, the ABA House of Delegates has embraced policy that there should be a right to counsel in civil matters where basic human needs are at stake, including matters of custody. The brief, filed in Olson’s case, is similar to one filed by the ABA in 2008. That case became moot before Alaska’s high court reached a decision.

The ABA’s new brief, which offers a national perspective, is replete with case examples where pro se defendants were at a distinct disadvantage without counsel in the complex and emotionally-charged context of child custody proceedings. It notes that while Alaska might have a legitimate interest in avoiding costs associated with appointment of counsel, that interest is not “significant enough to overcome private interests as important as those here.” The brief also asserts that appointment of counsel will foster judicial economy and efficiency, and will allow judges to remain impartial, when a judge’s instinct now may be to help a pro se defendant fighting an unequal contest against an opponent’s counsel.

Under the high court’s procedures, the ABA’s brief is first filed with the clerk’s office for review. 

View the complete amicus brief in Dennis Olson v. Stephanie Olson.

Original appeared in ABA News, produced by ABA Media Relations.