Why Civil Gideon Won't Fix Family Law

Abstract

This Essay explains why we should hesitate before throwing full support behind a civil Gideon initiative for family law, regardless of how wholeheartedly we embrace the proposition that parental rights are as important as physical liberty. The comparable importance of these interests does not necessarily mean that custody disputes should have the same procedural character as criminal matters, as becomes evident upon exploring some of the social, emotional, and structural qualities that differentiate the two contexts. Enhancing access to justice in family law requires that we design custody dispute resolution systems that honor the constitutionally significant interests at stake while recognizing the truly unique posture in which separating parents litigate. To pursue civil Gideon as a stand-alone reform falls short of this challenge; it accepts the primacy of a lawyer-centric adversary system as the preferred means for resolving custody disputes in the face of growing evidence that this framework does more harm than good for most domestic relations litigants.