An interesting case was decided by the Washington State Supreme Court on December 6, 2007, that addressed the issue of whether an indigent parent is entitled to appointed counsel, at state expense, to represent her during a custody dispute related to a divorce. In King v. King, http://www.courts.wa.gov/opinions, the husband was represented by a private attorney and the wife, who was a homemaker, could not afford an attorney. While she had an attorney earlier in the proceeding, she appeared pro se at the trial and custody was awarded to her husband. On appeal she claimed that her fundamental liberty interest was at stake in her divorce proceeding, and therefore without state assisted counsel she was deprived of her due process rights to the companionship and custody of her children. She argued that her circumstance was not unlike a parental termination proceeding that afforded a state sponsored right of counsel. The Washington Supreme Court rejected her arguments, distinguishing between termination of parental rights and allocation of time and control of the children.
What I find interesting about this case is not necessarily the constitutional arguments but the question of why the non-working mother was not allowed fees from her husband in order to hire competent counsel to represent her. Perhaps she never sought fees after her initial attorney left the case. While I don’t know, I suspect that the mother may have thought that she would be able to present her case adequately without an attorney and then learned the hard way that such a notion is ill-conceived. For obvious reasons, appointment of cousel for divorce cases would be onerous on otherwise strained government budgets. However, because of court’s near universal reliance on the best interest standard in adjudicating contested custody disputes, the skill of the lawyer becomes even more important. As I argued in a Northern Illinois Law Review article “Determining the Undeterminable: the Best Interest of the Child Standard as an Imperfect but Necessary Guidepost to Determine Child Custody,” the inherent indeterminateness and subjectivity of determining a child’s best interest magnifies the importance of how the evidence is presented to the fact finder. Capable lawyering can’t insure success, but the lack of it almost guarantees failure.