Delaware

This page provides a breakdown of all major developments and right to counsel law that the NCCRC knows for this state, sorted by subject area. Click on either tab below to see the aspect it describes.

Color Key Explanation
Categorical Right To Counsel There is a right to counsel without qualification for all indigent individuals in this type of case (except that the individual may be required to request counsel).
Discretionary Appointment Of Counsel Courts are permitted but not required to appoint counsel for any indigent individual in this type of case. A request may be required.
Right Or Appointment Is Qualified The established right to counsel or discretionary appointment of counsel is limited in some way, including: the only authority comes from a lower/intermediate court decision or a city government, not a high court or state legislature; a case has cast doubt on prior authority; a statute is ambiguous; or the right or discretionary appointment is not for all individuals or proceedings within that type of case.
No Such Proceeding This state has no law creating a judicial proceeding of this type.
No Authorization, But Relevant Materials While this state does not provide for or require appointment of counsel with respect to the given subject area, it does have something (such as a report or bar policy) that supports the right to or appointment of counsel for this subject area.
Other Because the "Other subject areas” category can include developments from different subject areas that do not work the same way as each other, a blanket categorization of this category is not possible.

Abuse/Neglect/Dependency - Accused Parents

Legislation

Discretionary appointment of

Indigent parents may be appointed counsel in matters related to mental health evaluations in the abuse/neglect context.

Appointment of Counsel: discretionary Qualified: yes

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Litigation

Key_development Question_mark

Discretionary appointment of counsel

The Delaware Supreme Court has said that due process requires a case-by-case determination for appointment of counsel in dependency cases.

Appointment of Counsel: discretionary Qualified: no

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Court Rule or Initiative

Key_development Question_mark

Discretionary appointment of counsel

Court rules provide for counsel for indigent parents in abuse/neglect cases on a case-by-case basis.

Appointment of Counsel: discretionary Qualified: no

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Abuse/Neglect/Dependency - Children

Legislation

Key_development Question_mark

Delaware grants right to counsel for children in abuse/neglect cases

09/06/2016

A law passed in 2016 requires the court to appoint an attorney for a child to act as guardian ad litem in abuse/neglect cases.

Appointment of Counsel: categorical Qualified: yes

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Court Rule or Initiative

Key_development Question_mark

Discretionary appointment of attorney ad litem

Children have a right to a best interests attorney, and the court may also appoint a CASA or client-directed attorney.

Appointment of Counsel: categorical Qualified: yes

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Adult Protective Proceedings - Protected Person (incomplete)

Legislation

Key_development Question_mark

Right to counsel

There is a right to counsel for indigent persons subject to adult protective services cases.

Appointment of Counsel: categorical Qualified: no

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All Basic Human Needs

Legislation

Key_development Question_mark

Discretionary appointment of counsel - state employee defendants

A court may appoint counsel for a public officer or employee for a civil action against the person related to his or her employment.

Appointment of Counsel: discretionary Qualified: yes

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Court Rule or Initiative

Delaware Access to Justice Commission subcommittees call for right to counsel

09/18/2017

A report by several subcommittees of the Delaware Access to Justice Commission urges recognition of a right to counsel for more civil cases.

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Bar Effort

Delaware Lawyer Magazine focuses on access to justice, right to counsel

09/24/2019

The latest issue of Delaware Lawyer Magazine features articles looking at access to justice and the right to counsel in Delaware.

 

Nccrc_involvement_icon

The NCCRC Coordinator authored one of the articles in the issue.

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Bypass of Parental Input into Abortion - Minor (Pre-Dobbs)

Legislation

Key_development Question_mark

Right to counsel

Minors denied a waiver of the parental notice requirement for an abortion have a right to counsel upon request for the appeal.

Appointment of Counsel: categorical Qualified: yes

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Civil Contempt in Family Court

Litigation

Key_development Question_mark

Right to counsel

The Delaware Supreme Court said there is a right to counsel for indigent defendants in state-brought contempt cases if they face incarceration.

Appointment of Counsel: categorical Qualified: yes

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Civil Commitment

Legislation

Key_development Question_mark

Right to counsel

There is a right to counsel for indigent respondents for both general involuntary commitment and substance abuse-related commitment.

Appointment of Counsel: categorical Qualified: no

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Forfeiture (incomplete)

Legislation

Legislation: civil forfeiture

04/05/2017

A pending Delaware bill would eliminate civil forfeiture and require appointment of counsel in criminal forfeiture proceedings.

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Custody Disputes - Parents

Legislation

Key_development Question_mark

Discretionary appointment of counsel

A court may appoint counsel for parties in a divorce proceeding, which includes the custody decision.

Appointment of Counsel: discretionary Qualified: no

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Litigation

Key_development Question_mark

Discretionary appointment of counsel - guardianship of children

Indigent parents may be appointed counsel in proceedings to establish guardianship over a child.

Appointment of Counsel: discretionary Qualified: no

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Custody Disputes - Children

Legislation

Key_development Question_mark

Discretionary appointment of counsel

A court may appoint counsel for a child in a private custody dispute.

Appointment of Counsel: discretionary Qualified: no

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Divorce

Legislation

Key_development Question_mark

Discretionary appointment of counsel - divorce

A court may appoint counsel for either side in a divorce proceeding.

Appointment of Counsel: discretionary Qualified: no

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Guardianship/Conservatorship of Children - Child (incomplete)

Court Rule or Initiative

Discretionary appointment of attorney ad litem

The court may appoint counsel for minors who are subject to guardianship proceedings.

Appointment of Counsel: discretionary Qualified: yes

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Key_development Question_mark

Right to attorney ad litem

Court Rule 207, which has been found applicable in private guardianship matters, provides that the court may appoint an attorney ad litem.

Appointment of Counsel: categorical Qualified: yes

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Guardianship/Conservatorship of Children - Parent (incomplete)

Legislation

Key_development Question_mark

Discretionary appointment of counsel

The Del. Supreme Court has suggested that due process requires a case-by-case determination for appointment of counsel in guardianship cases.

Appointment of Counsel: discretionary Qualified: no

Read more about this

Court Rule or Initiative

Key_development Question_mark

Discretionary appointment of counsel

Court Rule 206, which has been found applicable in private guardianship matters, provides that the court may appoint counsel for parents.

Appointment of Counsel: discretionary Qualified: no

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Guardianship/Conservatorship of Adults - Protected Person

Court Rule or Initiative

Key_development Question_mark

Right to counsel

Respondents in adult guardianship proceedings are entitled to an attorney ad litem who serves in a best interests role.

Appointment of Counsel: categorical Qualified: yes

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Housing - Discrimination

Legislation

Key_development Question_mark

Discretionary appointment of counsel

A court may appoint counsel for either side in a housing discrimination case.

Appointment of Counsel: discretionary Qualified: no

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Housing - Evictions

Legislation

Key_development Question_mark

Delaware takes major step towards tenant right to counsel

06/16/2023

Delaware's new law entitles tenants to counsel in certain housing matters, but subject to qualifications that fall short of a full right.

Appointment of Counsel: discretionary Qualified: no

 

Nccrc_involvement_icon

The NCCRC gave input to the advocacy coalition behind the bill.

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Report

Delaware report flags low tenant rep rate, need for counsel

05/01/2020

A University of Delaware report flags the low rate of tenant representation and the small dollars involved in some eviction actions.

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Issues Related to Incarcerated People

Litigation

Key_development Question_mark

Discretionary appointment of counsel

The court may appoint counsel for an indigent prisoner in a civil case if the State hasn't afforded "meaningful access" to the courts otherwise.

Appointment of Counsel: discretionary Qualified: no

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Incarceration for Fees/Fines (incomplete)

Litigation

Key_development Question_mark

Right to counsel

The Delaware Supreme Court said there is a right to counsel for indigent defendants in state-brought contempt cases if they face incarceration.

Appointment of Counsel: categorical Qualified: yes

Read more about this

Involuntary Medical Treatment (incomplete)

Legislation

Key_development Question_mark

Right to counsel

There is a right to court-appointed counsel for indigent respondents in both general involuntary treatment matters and in substance abuse treatment matters.

Appointment of Counsel: categorical Qualified: no

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Paternity - Defendant/Respondent

Litigation

Key_development Question_mark

Discretionary appointment of counsel

The Delaware Supreme Court has suggested that appointment of counsel may be appropriate in some paternity cases.

Appointment of Counsel: discretionary Qualified: yes

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Quarantine/Isolation

Legislation

Key_development Question_mark

Right to counsel - quarantine

There is a right to counsel in isolation, quarantine or treatment proceedings, except due to a sexually transmitted disease.

Appointment of Counsel: categorical Qualified: yes

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Sexually Dangerous Persons - Commitment

Legislation

No such proceeding

There is no procedure in the state for confinement of a sexually dangerous/violent person.

Sterilization

Legislation

No such proceeding

09/11/2023

Previously, there was a qualified right to counsel in sterilization proceedings. But the legislature repealed the provisions in 2023.

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Termination of Parental Rights (Private) - Children

Court Rule or Initiative

Key_development Question_mark

Right to attorney ad litem

Children in private termination proceedings have a right to an attorney ad litem. The court may also appoint a CASA or client-directed counsel.

Appointment of Counsel: categorical Qualified: yes

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Termination of Parental Rights (State) - Children

Legislation

Key_development Question_mark

Delaware grants right to counsel for children in termination cases

09/22/2016

A law passed in 2016 requires the court to appoint an attorney for a child to act as guardian ad litem in termination cases.

Appointment of Counsel: categorical Qualified: yes

Read more about this

Court Rule or Initiative

Key_development Question_mark

Right to attorney ad litem

Children have a right to a best interests attorney, and the court may also appoint a CASA or client-directed attorney.

Appointment of Counsel: categorical Qualified: yes

Read more about this

Termination of Parental Rights (Private) - Birth Parents

Litigation

Key_development Question_mark

Discretionary appointment of counsel

Indigent parents may be appointed counsel in adoptions.

Appointment of Counsel: discretionary Qualified: no

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Termination of Parental Rights (State) - Birth Parents

Court Rule or Initiative

Key_development Question_mark

Discretionary appointment of counsel

Indigent parents may be appointed counsel in state-initiated termination of parental rights cases, as per a court rule.

Appointment of Counsel: discretionary Qualified: no

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Truancy - Petition Against Child

Legislation

Key_development Question_mark

Right to counsel

There is no right to counsel for initial truancy proceedings, but rather only for some matters relating to violation of a truancy court order.

Appointment of Counsel: categorical Qualified: yes

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