Right to counsel

in J.L. v. G.D. 29 A.3d 752 (N.J. Super. Ch. 2010), a chancery court in New Jersey found that a minor plaintiff in a DV restraining order case was entitled to a GAL, since she was a party to the proceedings and the New Jersey Court rules authorized such a GAL. But then the court went further and held that where such a minor plaintiff was opposed by an adult defendant represented by counsel (privately retained, in this case), the GAL should be a licensed attorney. The minor plaintiff was 17 years old and had been dating the defendant, who was 20 years old. 

The court, which raised the issue of counsel sua sponte, based its actions on its general parens patriae power of the court and on its perception that while the court rules permitted the minor’s parents to serve as the minor’s GAL, the parents would not have the training to effectively represent her in her case against a party defended by counsel (and also the parents hadn’t appeared with the minor at the DV hearing). It stated:

The importance of the issue is highlighted by the courtroom scene at the start of this case. At one table is an adult defendant, standing next to an experienced and privately retained defense attorney of his choice. At the other table is a minor plaintiff, standing next to an empty chair. There is no basis for this court to conclude that this minor plaintiff is in any way equipped to conduct this legal proceeding by herself, all alone against a represented adult. She has no legal experience with concepts such as direct and cross examination, introduction of evidence, or legal objections in a domestic violence case. She is a high school student and legally still a child, barely old enough to gain entry by herself into an R- rated movie fictionally depicting domestic violence.

This hearing, however, is not a movie. Domestic violence is as real and serious an issue as exists in family court. The court’s verdict following trial can have long-reaching consequences on both parties— plaintiff as well as defendant. Defendant tacitly appreciates and recognizes this reality by appearing in court with defense counsel at his side. Whether the minor plaintiff is mature enough to have a similar appreciation and recognition of the importance of an adult voice and representation in the courtroom is unclear. . . .

The court concluded by stating that providing an attorney was “consistent with the stated intent of the New Jersey Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.”

The Supreme Court of New Jersey appeared to approve of this ruling, as it cited to J.L. in support of the proposition that “Certain categories of litigants in civil, probate, and family court matters, such as minors or persons determined to be mentally incapacitated, are afforded special protections which may include appointment of counsel and/or a fiduciary.” In re Civil Commitment of D.Y., 95 A.3d 157 (N.J. 2014).

An intermediate court came to a different conclusion in  D.N. v. K.M., 61 A.3d 150 (N.J. Super. A.D. 2013), although that case involved adult victims and not minor victims.