The right to a court-appointed lawyer in a guardianship case

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If you are involved in a guardianship of a minor case, you may have the right to a lawyer. If your income is so low you cannot afford a lawyer, you may have the right to a court-appointed lawyer.

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The minor's right to a court appointed lawyer

Under Massachusetts law, the court must appoint a lawyer for the child in a guardianship case if someone asks the court to appoint a lawyer for the child. The court can also choose to appoint a lawyer for the child even if no one has asked for a lawyer for the child. The lawyer can be appointed at any stage during a guardianship case, including the creation or end of the guardianship. You can read the full law here: G.L. c. 190B, § 5-106.

It’s important to know that a lawyer for the child represents only the child, not the person asking for guardianship and not either parent. Unless the child is very young and/or has a disability that makes the child unable to express a clear opinion, a lawyer for the child will work for what the child wants, even if the lawyer thinks that what the child wants may not be in the child’s best interest.

How do I ask the court to appoint a lawyer for the child in the guardianship of a minor case?

If you want to have a lawyer represent the child and work for what the child wants, you can file a request for counsel form on their behalf.

A parent’s right to a court appointed lawyer 

Under Massachusetts law, a parent has the right to an attorney during a guardianship case, and is entitled to a court-appointed lawyer if they meet certain requirements.

Why is it important for me to have a lawyer in a guardianship case?

As a parent, it is important for you to have a lawyer if your child is in a guardianship case. Even if you agree with the reasons for going to court, a lawyer can advise you and present your case to the judge.

When your child is involved in a guardianship case, your lawyer can help you deal with important issues like:

  1. Whether a guardian or a different form of caregiver would be best for your circumstances,
  2. If your child needs a different guardian,
  3. How to get court ordered parenting time, birthday, holiday, or visitation schedule,
  4. The ability to access to your child’s medical, counseling, and educational records,
  5. The ability to talk to your child’s doctors, counselors, and teachers,
  6. Allowing you to go to your child’s school and extra-curricular events, and
  7. How to communicate with the guardian about your child.
When am I able to have the court appoint me a lawyer in a guardianship of a minor case?

You have the right to a court-appointed lawyer if:

  • You need to ask the court to
    • appoint a guardian for your child.
    • end the guardianship.
    • change something in the guardianship like parenting time or visitation.
  • Someone else is asking the court to appoint a guardian for your child.
  • Your child is asking the court to appoint a guardian for themself.

Cases to appoint a guardian

When a child becomes involved in a guardianship case, the court should tell the parent that they have the right to a lawyer if they cannot afford one. A parent has the right to an attorney here because a guardian will take over caring for the child and will be able to make all decisions for the child. If a guardian is appointed, a parent without the ability to pay a lawyer has the right to a court-appointed attorney before they lose their right to parent their child.

This right is based on the court case called Guardianship of V.V. which you can read for more information.

What do I need to do to have the court appoint me an attorney during the appointment of a guardian?

You will need to give the court some more information. Under Massachusetts law, the court must appoint a lawyer for a parent in this situation if:

  • The parent must complete and file 
    • A request for counsel (also called an Application for Appointment of Counsel For Parent of Minor Child Guardianship of Minor), and
    • A fee waiver (called an affidavit of indigency)
  • The affidavit of indigency must show the court that the parent is income-eligible for a court-appointed lawyer.

The Application for Appointment of Counsel For Parent of Minor Child Guardianship of Minor form to ask for a court appointed attorney only asks for you to provide your name, contact information, and that you want the court to appoint you an attorney. This form tells the court that you are unable to afford an attorney and want the court to appoint and pay for the lawyer.

Even if the state appoints you a lawyer, the court will ask you to pay a $150.00 "counsel fee assessment". If you cannot afford this fee, check the box on the form to ask the court to "waive" the counsel assessment fee. 

What happens after I finish my application and affidavit of indigency?

After you complete the application and affidavit of indigency, you need to file them with the Registry of the Probate and Family Court in your county.

When you file your application, the court registry or the probation department may give you a consent form. This form will ask you for more information relating to any income and/or benefits you receive, where you live, and other general information about you. The court uses this information to decide that you do not have enough money to afford an attorney.
 

Will I need to go in front of a judge before I can get an attorney appointed for me?

You may have to go in front of a judge before the court can appoint you an attorney. A judge may ask you for more information to make a decision about whether you can afford an attorney. In general, the court should be able to appoint you an attorney without you having to go in front of a judge.

Cases to modify a guardianship 

A parent may be entitled to an attorney when they want to make a change to an existing guardianship. You may be able to have the court appoint you an attorney if you are asking for a change to the visitation schedule with your child or a change in child support.

What do I need to do to have the court appoint me an attorney to change a guardianship?

If a parent wants to “modify” (change) an existing guardianship to have a different visitation plan with their child, the court will appoint a lawyer if the following are done:

  • The parent must complete and file 
    • A request for counsel (also called an Application for Appointment of Counsel For Parent of Minor Child Guardianship of Minor), and
    • A fee waiver (called an affidavit of indigency)
  • The affidavit of indigency must show the court that the parent is income-eligible for a court-appointed lawyer, and
  • The request for counsel shows that the parent has a “meritorious claim” (i.e., a good reason for asking for a change on, or end to, the guardianship).

The Application for Appointment of Counsel For Parent of Minor Child Guardianship of Minor form to ask for a court appointed attorney only asks for you to provide your name, contact information, and that you want the court to appoint you an attorney. This form tells the court that you are unable to afford an attorney and want the court to appoint and pay for the lawyer.

Even if the state appoints you a lawyer, the court will ask you to pay a $150.00 "counsel fee assessment". If you cannot afford this fee, check the box on the form to ask the court to "waive" the counsel assessment fee.  

When you file your application, the court registry or the probation department may also give you a consent form. This form will ask you for more information relating to any income and/or benefits you receive, where you live, and other general information about you. The court uses this information to decide that you do not have enough money to afford an attorney.

How do I show the court my request has “merit”?

The court defines “merit” as a case that is “worthy of being presented to and considered by the court.” For more information about how the court decides merit, you can read L.B. v. Chief Justice of the Probate and Family Court. For a case to have merit, you need to explain that there has been some change in your life since the guardian was appointed, which means you can now resume your parental responsibilities.

To show the court your case has merit, you can complete an Affidavit, or a statement to the court where you explain why you think your case has merit.

You do not need to convince the judge that you should win the case. You only need to give the judge a good reason to believe that the court should consider ending the guardianship. Some examples of positive changes would be:

  • You finished a treatment program.
  • You have housing.
  • You have consistent income, such as from cash assistance, a job, etc.
  • You completed a parenting class.
  • You’re going to counseling or attending therapy.
  • You left an abusive partner or got a restraining order.
  • You finished your action plan with the Department of Children and Families (DCF).
  • You are getting therapy to help you with manage the problem that led to the guardianship.

All of these positive changes help the judge to decide if your case has “merit.” You do not need to show that you have done everything right or are a perfect parent. You only need to show that your request to end the guardianship is worth the court reviewing.

Cases to end a guardianship

A parent may be entitled to an attorney when they want to end an existing guardianship if they meet certain requirements.

What do I need to do to have the court appoint me an attorney to end a guardianship?

If a parent wants to end a guardianship and regain custody of their child, the court will appoint a lawyer if the following are done:

  • The parent must complete and file 
    • A request for counsel (also called an Application for Appointment of Counsel For Parent of Minor Child Guardianship of Minor), and
    • A fee waiver (called an affidavit of indigency)
  • The affidavit of indigency must show the court that the parent is income-eligible for a court-appointed lawyer, and
  • The request for counsel shows that the parent has a “meritorious claim” (i.e., a good reason for asking for a change on, or end to, the guardianship).

First, the court will ask you to complete a form to get more information about your income. When you file your application, the court registry or the probation department should give you a consent form. This form will ask you for information relating to any income and/or benefits you receive, where you live, and other general information about you. The court uses this information to decide that you do not have enough money to afford an attorney.
 

How do I show the court my request has “merit”?

The court defines “merit” as a case that is “worthy of being presented to and considered by the court.” For more information about how the court decides merit, you can read L.B. v. Chief Justice of the Probate and Family Court. For a case to have merit, you need to explain that there has been some change in your life since the guardian was appointed, which means you can now resume your parental responsibilities.

To show the court your case has merit, you can complete an affidavit, or a statement to the court where you explain why you think your case has merit.

You do not need to convince the judge that you should win the case. You only need to give the judge a good reason to believe that the court should consider ending the guardianship. Some examples of positive changes would be:

  • You completed drug addiction treatment.
  • You have housing.
  • You have consistent income.
  • You completed a parenting class.
  • You’re going to counseling or attending therapy.
  • You left an abusive partner or got a restraining order.
  • You cooperated with the Department of Children and Families (DCF).
  • You are getting therapy to help you deal with problems you had when the guardianship started.

All of these positive changes help the judge to decide if your case has “merit.” You do not need to show that you have done everything right or are a perfect parent. You only need to show that your request to end the guardianship is worth the court reviewing.

Will I need to go in front of a judge before I can get an attorney appointed for me?

You may have to go in front of a judge before the court can appoint you an attorney. A judge may ask you for more information to make a decision about whether you can afford an attorney. In general, the court should be able to appoint you an attorney without you having to go in front of a judge.

A guardian’s right to a court appointed lawyer

A guardian of a minor has a right to a court appointed attorney only when:

  1. A guardianship has already been established by the court,
  2. A parent or other party has petitioned to remove the guardian or terminate the guardianship,
  3. The guardian is income-eligible for a court appointed attorney, and
  4. The guardian has been the primary caretaker for the child for at least two years or for a significant period of time during the child's lifetime. Note: The period can include time before the guardianship was established when the guardian was primary caretaker. 

You can read more about the right of a guardian to a court appointed attorney here: Massachusetts General Laws, Ch. 190B, § 5-212 (d).

How can a guardian request a court appointed attorney during a case to end the guardianship?

The guardian would need to file a motion asking for the appointment of counsel. There is no specific form available for guardians, so they would need to complete the general motion form here, where they can write out that they are requesting a court appointed attorney.

To prove that they are income eligible, the guardian would also need to file a fee waiver (called an affidavit of indigency) to show the court that they cannot afford an attorney.

What happens after I finish my application and affidavit of indigency?

After you complete the motion and affidavit of indigency, you need to file them with the Registry of the Probate and Family Court in your county. The court may set a date for your motion to be heard by a judge. The judge may ask you some more questions about your income to decide if you qualify for a court appointed attorney.

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