Family Law and Civil Gideon: The Right to Counsel in Civil Cases

What is a Civil Gideon?

Recently there has been a push by legal communities, including here in Hennepin, Anoka, and Wright counties in Minnesota, to investigate and implement something called a “Civil Gideon” – or a right to counsel in civil cases where important rights are at stake.  In 2006, the American Bar Association (link:http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf) passed this resolution:

RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.

In 2008, the Minnesota State Bar Association has formed its own Civil Gideon Task Force (link:  http://www.mnbar.org/committees/CivilGideon/) to investigate whether a civil right to counsel should exist in Minnesota.

WHAT HAS THIS TO DO WITH FAMILY LAW?

When I first heard about this movement, I immediately thought of several family law situations in which the parties involved in proceedings which go beyond the “ordinary” legal issues arising out of divorce, alimony, child custody, child support – or even, in our Trusts and Estates practice – arising out of probate and other issues involving wills, heirs, and trusts – parties who have absolutely no resources to hire a private Divorce attorney Minnesota —and lack the criteria to receive aid from the various legal aid agencies.

Let me explain.  Once case in particular that comes to mind is a case where Moore Family Law represented the grandparents in their petition for third party child custody.  The mother, not our client, was only 19, had no job, and a history of substance abuse problems.  She was willing to accept help from the child’s grandparents as legal custodians for awhile—but she was scared of what might happen in the future regard child custody.  As much as she knew she couldn’t care for her child in her current state, she still wanted to some day care for her child:  in the short run, she already had enough problems stemming from her previous divorce.

I think we worked out a good compromise around the family law issues, a compromise that gives her room to rehabilitate herself and become a mother again; but she would have benefited greatly from having her own attorney during the child custody proceedings.  Here was a mother faced with losing her child, and she had no one to advocate for her or to explain the consequences of her decisions.  She needed an attorney not only for family law matters but also for legal matters arising from her substance abuse — but she could afford neither a family law attorney nor a criminal one; and legal aid providers do not typically take clients involved in third party child custody actions.

Compare this with the situation in which an action has been initiated to terminate a mother’s parental rights.  This is by no means an easy situation but there, the right to counsel is specifically provided for in Minnesota statute:  “(a) The child, parent, guardian or custodian has the right to effective assistance of counsel in connection with a proceeding in juvenile court.”  Minn. Stat. .§ 260C.163, subd. 3.  Here, at least, the mother has some right to an attorney.

WHAT MOORE FAMILY LAW IS DOING TO HELP IN MINNESOTA

Because I so often see cases where a party needs family law representation and also needs another type of Minnesota family lawyer , and because I think it is an injustice to not provide for those parties who face not only divorce, alimony, custody and child support issues but also issues of mental health, substance abuse, and in some cases criminal matters, — because we at Moore Family Law want to provide for those most in need, I am on the Civil Gideons Task Force, serving on the unmet needs committee.

Here I am able to bring the expertise of Moore Family Law to focus on the tasks at hand.  Our job is to investigate what potential clients are out there who are not being served.  There is ample data on the services provided by legal aid; but what about those cases turned away?  And what about those cases where legal aid can only provide an attorney that knows the specific area of the law in a very general way?  Is that adequate counsel?  These are questions that we discuss at our committee and Task Force meetings so that we can lay a strong basis for the right to legal counsel where it is needed most.

Emily Matson,

About Author

Jennifer graduated from the University of Minnesota cum laude with a bachelor’s degree in speech communications. In 2006, Jennifer achieved her life’s dream; owning her own family law practice. She practices every day as Divorce lawyers Minnesota with the intention of representing her clients’ future.

A Note About Attorney Client Privilege

When you meet with an attorney, everything you tell the attorney is confidential. Family law matters touch upon your most sensitive matters. You can rest assured that your divorce attorney takes its obligation to keep your private information private very seriously.

Even on this blog, the stories I tell have been altered to protect the privacy of my clients.

One of the advantages of hiring an attorney for your family law matter is that you will have a filter to help you determine what information is relevant to the Court. An attorney can also help you maintain the confidentiality of private or sensitive information while you go through a potentially public court case.

Don, a client from Wayzata, was concerned that private financial information about his closely held company would make its way into his divorce file. We were able to negotiate an agreement with his wife’s attorney to keep the information private. Ultimately, the case settled, but even if the case hadn’t settled, the confidentiality agreement would have required Don’s agreement before any documents were submitted to the Court.

Sondra, a client from Buffalo, expressed concern that her children’s medical records would make their way into the child custody file. Sondra’s concerns were valid. By and large, Special Needs Family Law MN cases that do not involve the adjudication of paternity are public. Anyone can see anything that is filed in them, except for documents that have been designated as confidential. When parties represent themselves, documents such as children’s medical records and financial account statements are frequently included as supporting documents. Court staff do their best to make sure that sensitive material is sealed, but I see private information in court files every day.

A Family Law Attorney Minnesota is your filter, protecting your private data, and protecting you from over-sharing information.

About Author

Jennifer graduated from the University of Minnesota cum laude with a bachelor’s degree in speech communications. In 2006, Jennifer achieved her life’s dream; owning her own Family law attorney Minnesota practice. She practices every day as Divorce lawyers Minnesota with the intention of representing her clients’ future.

The Affordable Care Act and Guardian Caregivers

According to the Congressional Research Office, “the primary goal of the Affordable Care Act is to increase access to affordable health insurance.”  For most of my clients the ACA has been a net positive. The non-insured spouse has the ability to obtain insurance on the open market at a price that is generally less than COBRA coverage, without worrying about the effect of pre-existing coverage. There is expanded coverage for Medicaid, which allows more children, disabled adults, and senior citizens to be insured.

Some of my clients may be affected by an odd provision in the Act that provides that it is a conflict of interest for the guardian of a disabled adult to be a paid caregiver.

Many of my clients rely on Medicaid waiver programs to fund services for their special needs Minnesota family lawyer member.  Often, these programs allow family members to be paid as caregivers. This program allows families the ability to provide care that might otherwise be provided by low-paid personal care attendants.  Personal care attendants are difficult to find, difficult to train, and difficult to retain.  The lack of available care places the special needs individual at risk of neglect.  Moreover, my clients tell me that they would rather provide the care for their family member than hire a stranger.

There are a number of fixes being proposed for this problem.  States that have accepted expanded Medicaid funding are attempting to accommodate Medicaid beneficiaries, but the proposed solutions at this point involved delegating the responsibility for creating a care plan to the State or a contracted care company.  That is problematic, since these waivered programs are designed to allow the individual and their families to decide how care will be provided. If a solution is not found to this problem, it is possible that family guardians will either have to give up the income they received from the waiver programs or be faced with the difficult and expensive process of transferring guardianship of their special needs adult to someone else.

About Author

Jennifer graduated from the University of Minnesota cum laude with a bachelor’s degree in speech communications. In 2006, Jennifer achieved her life’s dream; owning her own Family law attorney Minnesota practice. She practices every day as Divorce lawyers Minnesota with the intention of representing her clients’ future.