MD high court avoids question of right to counsel in custody cases

In Frase v. Barnhart, the Maryland Court of Appeals was asked whether the Maryland Constitution requires appointment of counsel for indigent litigants in private custody proceedings. The case involved a dispute between a mother and a third-party couple who had cared for the child during the mother's incarceration. The court found for the mother on the merits of her custody case, and thus declined to rule on the right to counsel issue.

In a concurrence signed by three judges, Judge Cathell articulated the view that the court should have reached the issue, which it framed as "do the poor receive equal treatment in a matter concerning the most basic of fundamental, and constitutional, rights-the matter of the custody, visitation, and control of children by their parents?"  The concurrence suggested the court might have found the petitioner had a right to counsel based on the due process provision embodied in the "law of the land" referenced in article 24 of the Maryland Declaration of Rights. Judge Cathell conceded that the U.S. Supreme Court in Lassiter had not required counsel in a state-initiated termination of parental rights case, but noted that in interpreting Maryland's constitutional provisions, "[W]e are not constrained by the limitations the United States Supreme Court has appeared to place upon the interpretation of federal constitutional provisions."  Cathell's notable concurrence also referred to the right to parent as "the most fundamental of constitutional rights," one that triggered an equal protection analysis.

Docs from the case are in our section on Frase in our comprehensive bibliography.