Discretionary appointment of counsel

In Allen v. Div. of Child Support Enforcement, the court found that the balance of factors outlined in Mathews v. Eldridge weighed in favor of appointing counsel for the specific indigent litigant in the instant paternity case as a matter of due process. 575 A.2d 1176, 1178 (Del. 1990).  The court relied heavily upon Little v. Streater, 452 U.S. 1, 5 (1981), another paternity case, which was decided at the same time as Lassiter and had facts similar to those at stake in Allen (although Little did not specifically involve the right to counsel), as well as the fact that the proceedings were quasi-criminal, owing to the state's involvement.  The court distinguished Blake v. Div. of Child Support Enforcement, 525 A.2d 154, 159 (Del. 1987), which held there was no right to counsel in paternity cases prior to submitting to a blood test, by noting that the plaintiff had already been subjected to blood tests that had found him to be the alleged father. Allen, 575 A.2d at 1182.

Ultimately, the court held that the balance of factors outweighed the negative Lassiter presumption against counsel where physical liberty is not threatened. Id. at 1185.  Although the court's holding was limited to "the specific circumstances presented by this case", the facts in Allen would generally be the same as other paternity proceedings where a blood test supports a finding of paternity. But see one pre-Allen case, Chase El v. Bureau of Child Support Enforcement, 1988 WL 4733 (Del. Super. Ct. Jan. 20, 1988) (unpublished) (finding no right to counsel; court applies Lassiter to claim under both federal and state constitutions and concludes that putative father has substantial financial interest in proceeding, but there were no complex questions of law; “Establishing paternity in this case primarily was a matter of eliciting facts regarding the mother's relationships over the year preceding the birth of the child”).