Right to counsel

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01/09/2017, Litigation, Custody Disputes - Parents

The Alaska Supreme Court held that indigent parents have a right to counsel in custody proceedings as a matter of due process under the Alaska Constitution when they are facing an opponent represented by state-funded counsel.  Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).  In reaching this holding, the Alaska Supreme Court held that the due process clause of the Alaska Constitution is flexible and the “concept should be applied in a manner which is appropriate in the terms of the nature of the proceeding.”  It also held that the right to direct the upbringing of a child is a basic civil liberty that is protected by the due process clause of the Federal Constitution. And the court found that the Alaska Legal Services Corporation counted as a “public agency.”


Then, in In re Alaska Network on Domestic Violence & Sexual Assault, 264 P.3d 835, 841 (Alaska 2011), the court held that the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) also counted as a “public agency” under Flores for purposes of appointment of counsel for someone facing an adversary represented by ANDVSA. The court noted that “the term ‘public agency’ in Flores must be understood as referring primarily to the nature of an organization's funding sources, and not to an organization's status as a government agency.”


Finally, in Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017), the court held that there is no categorical right to counsel in a custody case for an unrepresented parent facing a parent represented by private counsel.  However, the court did say, "If the particular facts of a case demonstrate that the parent would otherwise be deprived of a meaningful opportunity to be heard, procedural due process may require court appointment of counsel to a parent in a custody proceeding.”  Under prior Alaska law, parents have a right to counsel in custody cases whenever their opponent is represented by state-funded counsel, meaning legal aid or the statewide pro bono network.  The ABA had filed an amicus brief urging the court to recognize the right based on equal protection, and a collection of Alaska legal aid providers also filed an amicus brief in support of the right to counsel based on due process.

Appointment of Counsel: categorical Qualified: yes



The NCCRC assisted with the amicus briefs in the Dennis O case.