Right to counsel

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Litigation, Paternity - Defendant/Respondent

In Corra v. Coll, 451 A.2d 480 (Pa. Super. Ct. 1982), a lower appellate court held that court-appointed counsel is constitutionally required for indigent defendants in paternity proceedings, and the court clearly grounded its decision in the due process clause in the Fourteenth Amendment of the U.S. Constitution. The court first determined that there was a presumption that court-appointed counsel for the indigent defendant was constitutionally required because there was a risk of loss of liberty should the defendant fail to comply with the order of support entered as a consequence of an adjudication of paternity. The court was not persuaded by the 


The Corra court then moved to a procedural due process analysis under the Mathews v. Eldridge three-part balancing test. First, the court determined that the private interests – the creation of a parent-child relationship, the res judicata effect of a finding of paternity, and the property interests involved – were sufficiently weighty alone to justify appointment of counsel. Second, the court found that the combination of these private interests with the not inconsiderable risk that the absence of counsel might lead to an erroneous determination of paternity literally mandated appointment of counsel. The court noted in particular that its analysis of the risk of error was "further strengthened by the fact that, here in Pennsylvania, a complainant in a support action at which paternity is disputed shall, "upon the request of the court or a Commonwealth or local public welfare official" be represented by the district attorney."  Third, the court found that the state's interest would also be best served by appointment of counsel because future administrative burdens would be lessened by a correct determination of paternity. The beneficial aspects of having counsel present, including the increased accuracy of decisions, outweighed the added expense the state would incur. Finally, when the court measured the net weight of its Mathews analysis against the Lassiter presumption, it found that the conclusion that due process required the appointment of counsel for indigent defendants in paternity cases was inescapable.  The court relied in its opinion on the fact that the state prosecuted the action, making it unclear whether the right would extend to a paternity action not involving the state as directly.


Several cases from the Pennsylvania Superior Court have fleshed out the right to counsel in paternity proceedings. In Rodriguez v. Rodriguez, 600 A.2d 589 (Pa. Super. 1991), the court rejected the argument that the right to counsel did not exist where the child is born in wedlock and the defendant is presumed to be the father. The court held that "the same liberty interests which formed the basis for the decision in Corra v. Coll, supra, are present in this action in which appellant has been charged with but denies paternity."  In White v. Gordon, 460 A.2d 828, 830 (Pa. Super. 1983), the court held that a non-indigent paternity defendant must be given a reasonable opportunity to secure counsel, commenting that "a potential deprivation of liberty confronts any paternity defendant, whether or not indigent, and, since this court has determined that indigent paternity defendants have a right to counsel, non-indigent paternity defendants must, at least, be afforded a reasonable opportunity to secure representation by counsel to assist in the defense of such claims."  Then, in Banks v. Randle, 486 A.2d 974, 977 (Pa. Super. 1984), the court concluded that


Given the recognition of the right to counsel for paternity defendants … we find it impossible to deny such a defendant the right to effective assistance of counsel. It is axiomatic that the right to the assistance of counsel means the right to the effective assistance of counsel … Indeed, without the guidance of competent counsel, appellant's right to representation would be rendered worthless … Thus, were we to hold that a paternity defendant's right to counsel does not require the effective assistance of counsel, we would be exalting form over content.


In Gardner v. Gardner, 538 A.2d 4, 9 (Pa. Super. 1988), the court added, "Although today the proceedings pertaining to support and paternity are found in the Pennsylvania Rules of Civil Procedure, the civil-criminal distinction is unavailing in determining whether competent counsel is constitutionally required. Where paternity is denied and a trial is held on that issue, such counsel is necessary."  However, the court went on to hold,


We decline to extend the requirement of effective assistance of counsel to the situation where a defendant does not deny that he is the father of the child when an action for support for the child is brought. In the case before us the issue of paternity was never raised in the original support proceeding and the appellant defended only on the grounds that the support was too high. He had the opportunity to deny paternity had he so desired, but chose not to do so. We hold that only where there is a trial on a disputed issue of paternity, is the putative father entitled to counsel. To hold otherwise would be tantamount to providing the right to appointed counsel in support cases. This has never been the law.

Appointment of Counsel: categorical Qualified: yes