PJC In The News

Custody continuance case headed to Court of Appeals

Following in an article in the Daily Record about an upcoming argument before the Court of Appeals. The issue is whether a trial court judge wrongly refused to give a woman in a contested custody case a postponement of the trial to obtain a lawyer.  She had arranged for a lawyer to represent her if she could get the postponement, but the trial judge refused the postponement and made her go to trial without a lawyer.  At trial she did the best she could without a lawyer, but lost custody of her child.  She appealed, now with counsel.
The Public Justice Center wrote a friend of the court brief on behalf of itself, the Legal Aid Bureau, and the Maryland Volunteer Lawyers Service (MVLS). The PJC's brief contains an excellent history of the funding of legal services for the poor by federal and state governments, and the contribution of volunteer lawyers and private charities.  The brief shows that in spite of these efforts, the vast majority of poor people are unable to afford a lawyer or get a free lawyer to represent them in cases that significantly affect their everyday life.  The brief argues that when a poor person is finally able to find a lawyer to represent them, the court should not squander that resource by refusing to postpone the trial for a short period.
The brief was written by Debra Gardner, Legal Director of the PJC, and Stephen Sachs, Of Counsel, with Wilmer Cutler Pickering Hale and Dorr, LLP.  Debra Gardner is quoted in the following article.
Click here to read the brief.

Custody continuance case headed to Court of Appeals

May 25, 2006
Daily Record Assistant Legal Editor

Stephen J. Cullen argues that his client was denied access to the courts when a judge refused to grant her a continuance, even though she had Cullen’s affidavit saying he would take the case if it were rescheduled.

Next week, the Court of Appeals will consider whether a mother who lost custody of her 11-year-old daughter after attempting to represent herself in a contested hearing was denied access to the courts.

Eleven days before her Feb. 8, 2005 hearing — and after a master strongly recommended that she retain a lawyer — Tara M. Touzeau filed a motion for a continuance in order to obtain pro bono representation. The request was denied by Montgomery County Circuit Judge S. Michael Pincus.

Five days before the hearing, Touzeau reached attorney Stephen J. Cullen, who had a scheduling conflict but agreed to represent her pro bono if the trial date was moved — and prepared an affidavit to that effect. But Touzeau’s oral motion for a continuance at the hearing, before Judge Nelson W. Rupp, was denied.

The result? Touzeau proceeded with the hearing unaided; the court awarded residential and sole legal custody to the child’s father, Scott E. Deffinbaugh; and Cullen is now taking Touzeau’s case to the state’s highest court.

“Unfortunately for Ms. Touzeau, in the State of Maryland no formal system has been established to appoint (much less pay) attorneys to provide representation in custody disputes to parties who cannot otherwise afford such representation,” Cullen, along with co-counsel Todd M. Reinecker, wrote in the appellate brief.

That meant Touzeau was compelled to defend, without counsel, her right to the care and custody of her child, the brief adds.

“Ms. Touzeau’s denial of representation at trial was compounded all the more by the refusal of the circuit court to give her any time to be represented, even when such representation was in fact available,” they noted.

To Deffinbaugh’s lawyers, however, the case is not about access to justice but only Touzeau’s failure to get a lawyer in time.

“Petitioner correctly argues that Ms. Touzeau had an absolute right to seek counsel to assist her through the legal system, but fails to acknowledge that when a litigant knowingly chooses to proceed pro se throughout the litigation process, she is not entitled to a continuance at the eleventh hour,” David C. Driscoll Jr. and Monica G. Harms write. “The trial court evaluated the circumstances and properly denied Ms. Touzeau’s request for a continuance.”

Touzeau has no constitutional right to counsel in a contested custody case, Deffinbaugh’s attorneys point out.

“Arguments that she was denied due process or equal protection under the law are creative, but unsupported,” they wrote.


Case:Tara M. Touzeau v. Scott E. Deffinbaugh, CA No. 126.
Was it an abuse of discretion for the circuit court to deny a continuance to a pro se litigant in a contested custody case who, several days before trial, found an attorney who was willing to represent her pro bono if a continuance was granted?
To be heard:
Oral arguments scheduled for Wednesday, May 31.
Stephen J. Cullen and Todd M. Reinecker for appellant; David C. Driscoll Jr. and Monica G. Harms for appellee.
Proficient or deficient?
Deffinbaugh filed a motion for change of custody and emergency relief in September 2004, after Touzeau decided to move from Montgomery County to southern Anne Arundel County with the child. Touzeau had had custody of the child since her birth in 1994, although Deffinbaugh had been involved in the child’s life.

The circuit court granted the relief, finding that the move — requiring the father to endure a 100-mile round-trip drive from Olney for visitation — was a material change in circumstances warranting a change in custody.

The Court of Special Appeals agreed last November, concluding that the move affected the child’s best interests by removing her from a school where she was doing well. And the denial of the continuance, the appellate court held, was not error.

In their briefs, Touzeau’s attorneys called their client’s efforts to represent herself a “path that ended in disaster.” Deffinbaugh’s attorneys referred to her as “a capable litigant.”
Debra Gardner of the Public Justice Center — who filed an amicus brief in the case on behalf of the PJC, the Legal Aid Bureau Inc. and Maryland Volunteer Lawyers Service — says if Touzeau gets a new trial, the issue of whether the move warranted a change in custody will be revisited.

“She lost custody in a case that cries out that a lawyer on her side would have made a tremendous difference,” she said.

She said trial courts often face the continuance issue, since lawyers will and do tell a client seeking representation at the 11th hour that they will take a case if a continuance is granted. Still, a lot of people can’t find someone to represent them in such a case.
“When they do, that resource shouldn’t be squandered,” she said.

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