Bills intended to overturn the Alaska Supreme Court’s decision in Flores have died

In 2024, the Alaska legislature introduced cross-filed bills, HB 315 and SB 226, that would have amended the statutory definition of a “public agency” (under Alaska Stat. § 44.21.470) to explicitly exclude tribal governments and entities that receive funding from federal, state, or municipal governments.  The preamble clarifies that the bills’ intent was “to overturn the decision of the Alaska Supreme Court in Flores v. Flores, 598 P.2d 893 (Alaska 1979) to the extent that the decision held that the Alaska Legal Services Corporation is a ‘public agency’ entitling an indigent parent in a child custody case to court-appointed counsel.”

In Flores, the Alaska high court held that a parent in a private custody matter had the right to counsel under the due process clause of the Alaska Constitution where the opposing parent was represented by the Alaska Legal Services Corporation (ALSC).  The Flores court built upon prior precedent (i.e., Reynolds and Cleaver, which were parentage proceedings prosecuted by the state) that recognized the importance of the liberty interest at stake where a parent “faces a substantial possibility of the loss of custody or of prolonged separation from a child.”  It also reasoned that there is great difficulty in participating in a custody case without the aid of counsel (given how complicated it can be to discern a child’s best interests) and stated that, because the opposing parent was represented by counsel provided by a public agency (i.e., ALSC), “[f]airness alone dictates that the petitioner should be entitled to a similar advantage.”  Thus, the impact of the bill would have been to roll back the right to appointed counsel for indigent parents in matters where legal aid is representing the opposing party such as in custody matters and child guardianship matters.

Fortunately, both bills died in committee this session.