CBA Record March-April 2026

THE YOUNG LAWYERS SECTION

guidance by explaining procedural rules, allowing time to resolve simple logistical problems, and performing calculations. However, although helpful, the program is only available for certain types of cases. For example, situations that require addi tional fact finding, such as orders of pro tection, cannot be brought before hearing officers. Another resource available for SRLs falls outside the adversarial system through a no-cost mediation service. Located across the street from the Daley Center, Family Court Services offers mediation to all parent litigants involved in disagreements, such as those involving parenting time for minor children. The Illinois Supreme Court has mandated parties involved in child-related disputes to attend mediation. Once the court orders it, a neutral third party can help parents to discuss their children’s future after separation. The goal is for the par ents, not the judge, to make decisions about their children’s well-being. The pro gram is valuable and can be useful, but unfortunately, mediation can fail. Parents often struggle to put their feelings aside and find a resolution, leading them back to my courtroom. Illinois and Cook County have made Domestic Relations courts more acces sible for self-represented parties, but the problem remains: SRLs, especially those with limited financial resources, struggle to navigate the court system. Parents who juggle their own legal representation on top of their job and parenting responsi bilities bear a heavy burden. The clearest solution is also the boldest: Provide indi gent SRLs with publicly funded attor neys, just as we do in criminal court. Ultimately, to provide equal access to the courts, parties involved in child custody cases who cannot afford to hire a lawyer deserve a right to counsel. Just as the United States Supreme Court in Gideon v. Wainwright found a right to counsel for indigent people in criminal cases, we Solution: A Right to Counsel in Child Custody Cases

must also recognize a corresponding right in certain civil matters. It’s critical to understand that Gideon did not distinguish between why an indigent civil litigant was not entitled to an attorney but a criminal litigant was. Rather, it concerned the party’s difficulty in comprehending the law, their ability to figure out if the charges are legitimate, and their inability to adequately present a defense. In other words, the driving force behind Gideon was not a differ ence between the loss of liberty and loss of other life experiences, but rather that a fair trial cannot occur unless both parties have access to legal representation. Situ ations involving child custody disputes therefore cannot be fair unless both par ties have legal representation. Blueprints from Other States The reason a right to counsel should focus on child custody disputes is simple: Parents have a fundamental right to the care, custody, and control of their children, and a fair hearing is necessary to determine each party’s responsibilities if mediation fails. The consequences are life changing. Parents may be denied the opportunity to raise their children, while children may be deprived of the chance to strengthen their bond with the absent parent. Therefore, Illinois should adopt the standard set out in New York, which provides a categori cal civil right to counsel in child custody disputes. While Cook County has a right to legal representation for indigent SRLs facing contempt hearings in the Domestic Rela tions Division, Illinois currently does not provide for nor require the appointment of counsel for parents in cases regarding child custody disputes. Six states plus the District of Columbia provide for some right, but New York is the only one that makes it unconditional. In New York, the right is available not just at the trial level but also on appeal. This “mandated representation” is devised by each county under state law, which authorizes every county to choose one or

a combination of several options: private legal aid organizations; voluntary groups, such as local bar associations; or private attorneys appointed under an assigned counsel program. Local governments are allowed to con sider costs in determining which repre sentation model to implement, but they must adhere to the constitutional obliga tion of maintaining quality legal represen tation for people who need it. The hourly rate for assigned counsel is set by the state legislature (currently $158/hour). While county governments and New York City bear the initial responsibility for assigned counsel fees, a 2023 rate increase enables the state, via the Office of Indigent Legal Services, to reimburse 50% of eligible expenditures. While critics might argue the costs would be too great to build capacity for a categorical right to counsel in child cus tody matters, the infrastructure already exists in Illinois and Cook County to make this a reality. I previously mentioned three organizations that I refer to self represented parties for legal help; these organizations can provide the necessary staffing. Local bar associations can follow New York’s example by stepping up to provide attorneys. Additionally, the lawyers needed to deal with demand can be funded through a grant system like the one proposed in Maryland. In studying how to imple ment a civil right to counsel for child custody cases, Maryland discussed using The Judicare Project, which provides grant funding to legal services providers to find knowledgeable family law attor neys who would take on contested family cases. Judicare itself is funded through the Maryland Legal Services Corporation, a nonprofit entity established by the Mary land General Assembly. It receives funds from Interest on Lawyer Trust Accounts (IOLTA) and surcharges from certain court filing fees. Judicare also gets fund ing from the agency overseeing Mary land’s state court system. Though Maryland has not imple mented this proposal, it provides a useful

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