There Is No Right To A Good Lawyer In A Divorce

What if you think your lawyer did a terrible job?  Is that grounds for appealing the court’s decision in your divorce, child custody hearing or child support hearing? The courts say no.  In a recent appellate court case, the court confirmed what one might think is common knowledge—there is no right to counsel in a divorce case and by extension no right to a good lawyer.  The case is called In re Marriage of Campi and the parties brought up a number of issues on appeal.  One of the things the husband argued was that the trial court was wrong to deny him a new trial based on his argument that his counsel was ineffective.

Ineffectiveness of counsel is a basis for a new trial or an appeal in a criminal case.  But there is no right to counsel in civil cases, and thus there is no right to effective counsel.  In the Campi case the court affirmed that as in a case about a car wreck or a contract dispute there is no right to counsel in divorce cases.  The right to counsel exists only where the litigant may lose his or her physical liberty if he loses the litigation.

There are exceptions in the family law context.  Indigent parents have been granted the right by court rule and by statute to appointed counsel in dependency proceedings.  See California Welfare and Institutions Code Section 317 and California Rule of Court 5.534(g)(h).  There is also a due process constitutional of right to representation by counsel on a case by case basis where the result of the hearing may be the termination of parental rights.  See the case of In re Arturo A (1992) 8 Cal.App.4th 229, 238.

California law specifically provides that all represented parties in dependency proceedings are entitled to competent counsel.  There is no such risk of a loss of custody of a child in a divorce because custody is awarded to one or both parents, not the state.

A person who is accused of failing to comply with an order of the court is subject to contempt proceedings.  In California the face of the Judicial Council Affidavit for Contempt form expressly states a contempt proceeding is “criminal in nature.”  The relevant statutes allow for a civil contempt or a criminal contempt proceeding, but if an alleged contemnor is in danger of losing his or her liberty it is generally a criminal contempt and in that case the person is entitled to counsel.

The moral of this post is choose wisely.  A divorce may be one of the most important events in your life.  You want a lawyer who will do right by you.  How do you find one?  Check out this article on 14 Questions to Ask A Divorce Lawyer Before You Hire One.

Posted in Divorce, Family Law

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