MA court: parents have right to counsel in certain private custody cases

In Ryan v. Lovendale, the Massachusetts Court of Appeals held in May 2025 that in a child custody case involving the potential granting of permanent custody to a nonparent where the birth parents do not consent, the birth parents have a statutory right to appointed counsel.  This is a significant ruling, as few courts have recognized a right to counsel in the private custody context.

The Court of Appeals noted that “ it is worthwhile to distinguish the instant case, where there is an order of custody to a nonparent, from the more common parentage case, where custody is awarded to one or both parents”, and that courts are expected to work to preserve the relationship between children and their primary caretaker parent, in addition to determining the best interests of the child.  The Committee for Public Counsel Services, which provides indigent defense in Massachusetts child welfare cases, noted in an amicus brief that in terms of cases involving an involuntary grant of permanent custody to a nonparent, “only a handful of such proceedings each year.”

The mother argued she had a constitutional right to counsel in such a situation and the Court of Appeals stated that her position “enjoys substantial support in the case law”, citing to prior Massachusetts case law establishing a constitutional right to counsel in termination of parental rights cases and private child guardianship cases (the latter being a case the NCCRC assisted).  The court added that “a parentage case where a judge is considering a request to order custody to a nonparent is substantially similar to a guardianship case.”

The court then concluded it did not need to reach the constitutional question because M.G. L. c. 209C, § 7 provides courts with discretion to appoint counsel in custody cases “whenever the interests of justice require”, and that where a court is considering awarding full custody to a nonparent against the wishes of the birth parents, the interests of justice will always require appointing counsel to the birth parents, “except in the most exceptional circumstances” (such as where the birth parent is hostile or violent towards appointed counsel or fails to communicate).

The Court of Appeals declined to reverse the grant of custody to the nonparent because the mother had agreed to temporary custody for the nonparent and then failed to appear for the permanent custody hearing.  However, it pointed out that she could file a motion to modify counsel based on changed circumstances, and at such a hearing she would be entitled to appointed counsel.

The Court of Appeals also suggested the child might be entitled to appointed counsel under M.G. L. c. 190B, § 5-106(a), which governs appointment of counsel for persons under disability.