Monthly Archives: February 2013

Kansas Supreme Court Affirms Parental Rights for Same Sex Partners

February 25th, 2013

The Kansas Supreme Court issued a ruling on Friday entitling same sex partners to parental rights over children which they help raise.  The Court affirmed a lower court ruling which awarded parental rights to the non-biological mother of two children conceived through artificial insemination and raised by her and the children’s biological mother during their partnership.  The lower court had denied the biological mother’s attempt to cut off her former partner’s contact with the children after the couple separated, granting joint custody to both women.

If you want to read the full opinion, you can find it on the Kansas Supreme Court website by clicking here.

Ineffective Assistance of Counsel

February 13th, 2013

An amusing case came down from the First District Court of Appeals in late January regarding whether a Judgment may be set aside based on ineffective assistance of counsel.  In Re Marriage of Campi  was a family law matter involving a garbage collector and a homemaker who had accumulated a significant amount of property and their dispute regarding the amount of the equalizing payment due pursuant to their agreed upon property division.  After a long cause hearing on the issue and objections from each side regarding the tentative statement of decision, the trial court adopted the amount of Mr. Campi’s proposed equalizing payment.  Note that a ruling in his favor did not stop him from appealing, mostly based on his contention that he was represented by ineffective counsel.    See In Re Marriage of Campi , No.  A134030, slip op., (1st App. Dist., Div. Four, January 24, 2013)

The appellate court noted Mr. Campi’s “novel argument that has no legal basis: that the trial court committed reversible error when it denied his motion for a new trial based on ineffective assistance of his counsel.” If you are unable to guess the outcome based on the court’s characterization of Mr. Campi’s rather creative legal contention, the court found his argument to be frivolous.  It stopped short of adding insult to injury by calling it garbage.  See Id.at p. 9-10.

As the Campi court explained “[T]he general rule is that there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation.” (Citing Walker v. State Bar (1989) 49 Cal.3d 1107.  The Campi court further cited Chevalier v. Dubin (1980) 104 Cal.App.3d 975, pursuant to which the appellate court concluded that since appellant had chosen his counsel to represent him, he was not entitled to a retrial because his attorney was ineffective.   Finally, the Campi court noted “Indeed, the general rule is that attorney neglect in civil cases, if any, is imputed to the client.” See Id. at p. at 10 (citing Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d. 892, 895.)

There are the notable exceptions to this rule in family law for indigent parents involved in dependency proceedings and for parties where a hearing may result in the termination of parental rights. See Welf. & Inst. Code, § 317; rule 5.534(g) & (h); In re Arturo A. (1992) 8 Cal.App.4th 229, 238.  However, the Campi case involved a dispute over the amount of an equalizing payment, and Mr. Campi’s valiant attempts to resuscitate 70 year old cases in order to carve out his own exception ultimately failed.  The appellate court found that there is no right to counsel in dissolution cases and denied his appeal on that basis.  See Id. at p. 10-11.

Thus, unless you fall within one of the narrow exceptions having to do with dependency proceedings and possible termination of parental rights, there is no right to counsel and you cannot argue ineffective assistance of counsel as a basis for setting aside orders in your case.  Please note that this holding does not mean that Mr. Campi has no avenues for redress.  It just means that the family court is not one of them.   It also does not affect a needy party’s ability to request an award of attorney’s fees from the other party in order to hire counsel.   In this case, Mr. Campi had hired his counsel and whether or not he could afford to pay his attorney was not at issue.