Can a Judge Deny a Request for Counsel in a Custody Proceeding
If you are in the middle of a hearing for temporary custody and realize that you should have a lawyer, can the judge deny your request for counsel and order that the hearing proceed?
Re: Can a Judge Deny a Request for Counsel in a Custody Proceeding
Yes, the lawyer may do so. There is no automatic right to counsel in civil proceedings, and the court is not obligated to suspend and reschedule proceedings when a pro se litigant realizes that he or she should have hired a lawyer. If you want to ensure that you will be represented at a family court hearing, you should hire a lawyer before the hearing.
Re: Can a Judge Deny a Request for Counsel in a Custody Proceeding
For the record, it is not accurate to say something as broad as "there is no right to counsel in civil cases", as all states provide a right to counsel for at least a few types of civil cases. *The website of the National Coalition for a Civil Right to Counsel (http://www.civilrighttocounsel.org) has an interactive map where you can choose a subject area (such as housing or custody) and see which states provide a right to counsel for that subject area (or give the judge discretion to appoint counsel), although the website does not constitute legal advice and should not be taken as such. *
And as a point of fact, there are a few states that provide a right to counsel for all or some custody proceedings, as you'll see from the website.
Re: Can a Judge Deny a Request for Counsel in a Custody Proceeding
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jpollo02
For the record, it is not accurate to say something as broad as "there is no right to counsel in civil cases", as all states provide a right to counsel for at least a few types of civil cases. *The website of the National Coalition for a Civil Right to Counsel (
http://www.civilrighttocounsel.org) has an interactive map where you can choose a subject area (such as housing or custody) and see which states provide a right to counsel for that subject area (or give the judge discretion to appoint counsel), although the website does not constitute legal advice and should not be taken as such. *
I would not characterize most of the federal and state case law that allows a court to appoint counsel in civil cases as a true right. What the federal government and states do is provide discretion to the judge to make appointments of counsel at government expense where certain criteria are met. But the appointment is typically not something that is mandatory in those circumstances. It is still at the court’s discretion. As a result, it should also be noted that it is extremely uncommon in most courts for a court to appoint counsel at court or government expense in a civil case even where applicable statute or case law allows for it.
Even if there is a possibility to get court appointed counsel for the OP in a custody case (and the OP did not indicate a state) almost certainly the judge had the discretion to reject the motion to postpone the hearing so that the person could get a lawyer. Where appointment of civil counsel is a possibility, one really needs to seek that appointment before any hearings or trials start. Realizing part way through a hearing or trial that you have muffed it and want to do it over with a lawyer is too late.
Re: Can a Judge Deny a Request for Counsel in a Custody Proceeding
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Taxing Matters
I would not characterize most of the federal and state case law that allows a court to appoint counsel in civil cases as a true right. What the federal government and states do is provide discretion to the judge to make appointments of counsel at government expense where certain criteria are met. But the appointment is typically not something that is mandatory in those circumstances. It is still at the court’s discretion. As a result, it should also be noted that it is extremely uncommon in most courts for a court to appoint counsel at court or government expense in a civil case even where applicable statute or case law allows for it.
Even if there is a possibility to get court appointed counsel for the OP in a custody case (and the OP did not indicate a state) almost certainly the judge had the discretion to reject the motion to postpone the hearing so that the person could get a lawyer. Where appointment of civil counsel is a possibility, one really needs to seek that appointment before any hearings or trials start. Realizing part way through a hearing or trial that you have muffed it and want to do it over with a lawyer is too late.
There are a couple of states (NY is one of them) where it is common for counsel to be appointed in custody or other family law matters. However, I agree that the odds of getting a judge to halt a hearing half way through because someone realizes that they should have obtained an attorney are pretty darned slim.
Re: Can a Judge Deny a Request for Counsel in a Custody Proceeding
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llworking
There are a couple of states (NY is one of them) where it is common for counsel to be appointed in custody or other family law matters. However, I agree that the odds of getting a judge to halt a hearing half way through because someone realizes that they should have obtained an attorney are pretty darned slim.
There are a few states that do provide an actual right to counsel in at least some family law matters, NY being one of them. Most however, do not. Using taxpayer funds to help private parties litigate disputes between them is not something that a lot of states are keen to do, after all.
Whether or not appointed counsel at taxpayer expense is possible is separate from the issue of whether a judge will agree to halt a hearing part way through and continue it at another time just because a pro se party suddenly realizes he or she is in trouble, doesn’t really know what he or she is doing, and now wants to be represented by a lawyer. Most of the time a judge will not do that. If you want a lawyer for the hearing, you need to arrange for that (whether applying for appointed counsel or hiring one on your own) prior to the hearing. It is unfair to both the opposing side and the court to have to reschedule the hearing and waste the time and effort spent on the current hearing just so a party can try to fix their errors by getting an attorney. It’s like going into a football game and part way through the coach of the losing team realizes he should have replaced his quarterback with someone better. The referees are not going to stop the game and reschedule it so that the coach can get a better quarterback. :D