You'll need a lawyer to separate them.

Photographer: Anne-Christine Poujoulat/AFP/Getty Images

Everyone Deserves a Lawyer, Even Parents

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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If you were about to lose your kids to a legal guardian who wasn't you, what rights would you have? You’d think this would be a question of pressing national importance. But when the Massachusetts Supreme Judicial Court guaranteed parents the right to a lawyer in a guardianship proceeding this week, only a local paper noticed. I wouldn't have known about this fascinating case except that it was brought, argued and won by a particularly brilliant former student of mine at New York University School of Law who has devoted her career to representing the indigent.

The case is crucially important because it deals with a fundamental problem in child welfare law: who gets to take guardianship of children in troubled situations, and why. But the Massachusetts decision also matters because it doesn't fit the standard dichotomy of liberal versus conservative. On the one hand, providing court-appointed lawyers is classically progressive, going back to the famous case of Gideon v. Wainwright that created a counsel right for criminal defendants. On the other hand, defending parents’ rights is a classically conservative position -- and many progressives believe that the law should make it easier, not harder to transfer children from the authority of their parents to other guardians, especially relatives, if doing so may improve their welfare.

The facts of the case are superficially simple -- but the real-world practice of guardianship is complex. Patrice Gianareles had a son when she was 16. Gianareles had been raised by her grandmother Patricia Zegarowski. With the aid of an attorney, Zegarowski filed for legal guardianship of her great-grandchild. First, she got temporary guardianship, and then got it extended over the mother's objections. Before a trial to make the guardianship permanent, the grandmother asked her granddaughter to sign a formal document that consented to her guardianship and waived her right to be notified of hearings. Based on that document, the judge entered a decree of guardianship that gave the guardian total control over whether the mother could see her son. Desperate, without a lawyer, and afraid the legal system would take her child away and send him to foster care, Gianareles signed -- essentially giving up her rights as a parent.

The transfer of guardianship can, of course, be a good thing under the right circumstances. Often the party seeking guardianship is a relative. When a parent is truly unable to take care of a child, it stands to reason that it would be better for the child to be raised by someone with a family connection than to be put in the state's notoriously challenged child welfare system.

Yet the incentives are also problematic. Often, the guardian will get a right to state-provided financial benefits. And the child welfare bureaucracy can clear cases from its books by helping to arrange guardianship transfers. This serves a short-term bureaucratic interest, but it may not always serve the underlying goal of helping children to be safe and secure while living with their parents.

Most important is the knowledge and power asymmetry between the person seeking guardianship and the parent. The would-be guardian is seven times more likely to have a lawyer, than the parent. According to friend-of-the-court briefs filed in the case, the Massachusetts Department of Child and Family Services often provides informal advice to the would-be guardians. (The department denies this.) The guardians are generally older, and have less to lose than the nervous young parents.

Glenna Goldis, the lawyer who took on Gianareles’s case, met her after the guardianship agreement was in force -- and decided to take the case to the Supreme Judicial Court as a constitutional challenge to the existing practice. Meanwhile, Goldis represented Gianareles in her petition to regain custody. This time, with a lawyer, Gianareles won her child. . The Massachusetts high court agreed to hear the case anyway, because the issue was of “significant public importance” and likely to reoccur.

The court's reasoning was straightforward. The guardian’s parenting rights “effectively displace those of the parent,” it held. “The guardian, and not the parent, becomes the primary caretaker and decision maker for the child” -- even if the guardianship is only temporary. Under these circumstances, the court recognized a state constitutional right to have an attorney.

In certain ways, this is a liberal decision from the same liberal court that decided the first important recent gay marriage case, Goodridge v. Department of Public Health, in 2003. Appointing attorneys to protect the poor has been a cornerstone of liberal legal thought since the Gideon case, so memorably described by the late, great Anthony Lewis in "Gideon’s Trumpet" -- the book that made me want to become a constitutional lawyer. Increasing access to justice for the poorest Americans remains an important component of the progressive legal agenda.

To conservative critics, of course, the problem with appointing lawyers is that it costs money. Liberals like to claim that in the long run, lawyers mean more due process, which means more efficient government decisions, which saves money. Maybe. No one can definitively say. But the true liberal position believes in due process for its own sake, not as a money-saving device.

Yet conservatives should also find much to applaud in the Massachusetts decision -- and some progressives may actually look at it askance. Increasingly, the protection of parents’ rights vis-à-vis transfers of parental authority has become a conservative cause. Liberals tend to question the moral importance of the biological accident of parenthood, and want children to be placed with whoever might be the best parent -- which might not be the biological parent.

Giving lawyers to biological parents makes it harder to transfer guardianship in what is thought to be the best interest of the child. In that sense, it’s old-fashioned and cautious. Edmund Burke would approve.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net