AMERICAN BAR ASSOCIATION
Directory of Law Governing Appointment of
Counsel in State Civil Proceedings
VIRGINIA
Copyright © 2014 American Bar Associaton
All rights reserved.
American Bar Associaton
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ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS  VIRGINIA 2012
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VIRGINIA
Table of Contents
Preface.........................................................................................................................................................1
Law Addressing Authorizaton or Requirement to Appoint Counsel in Specifc Types of Civil Proceedings.2
1. SHELTER..............................................................................................................................................2
Federal Statutes and Court Decisions Interpretng Statutes...........................................................2
2. SUSTENANCE......................................................................................................................................2
Federal Statutes and Court Decisions Interpretng Statutes...........................................................2
3. SAFETY AND/OR HEALTH ..................................................................................................................3
A. Domestc Violence Protecton Order Proceedings.........................................................................3
B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings........................................3
State Statutes and Court Decisions Interpretng Statutes...............................................................3
C. Civil Commitment or Involuntary Mental Health Treatment Proceedings.....................................3
State Statutes and Court Decisions Interpretng Statutes...............................................................3
D. Sex Ofender Proceedings..............................................................................................................3
State Statutes and Court Decisions Interpretng Statutes...............................................................3
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton .......................4
E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings.................................................4
4. CHILD CUSTODY..................................................................................................................................4
A. Appointment of Counsel for Parent—State-Initated Proceedings................................................4
State Statutes and Court Decisions Interpretng Statutes...............................................................4
Federal Statutes and Court Decisions Interpretng Statutes...........................................................5
B. Appointment of Counsel for Parent—Privately Initated Proceedings...........................................6
State Statutes and Court Decisions Interpretng Statutes...............................................................6
C. Appointment of Counsel for Child—State-Initated Proceedings...................................................6
State Statutes and Court Decisions Interpretng Statutes...............................................................6
Federal Statutes and Court Decisions Interpretng Statutes...........................................................7
D. Appointment of Counsel for Child—Privately Initated Proceedings.............................................8
5. MISCELLANEOUS................................................................................................................................8
A. Civil Contempt Proceedings...........................................................................................................8
State Statutes and Court Decisions Interpretng Statutes...............................................................8
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton .......................8
B. Paternity Proceedings....................................................................................................................9
C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Aborton...............9
State Statutes and Court Decisions Interpretng Statutes...............................................................9
D. Proceedings Involving Claims by or Against Prisoners...................................................................9
State Statutes and Court Decisions Interpretng Statutes...............................................................9
State Court Decisions Addressing Open Access to Courts Principles..............................................9
E. Proceedings Involving DUI Charges..............................................................................................10
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton .....................10
F. Juvenile Delinquency and Child in Need of Supervision Proceedings...........................................10
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton .....................10
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS  VIRGINIA 2012
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Law Addressing Authorizaton or Requirement to Appoint Counsel in Civil Proceedings Generally..........11
State Statutes and Court Decisions Interpretng Statutes.....................................................................11
Federal Statutes and Court Decisions Interpretng Statutes..................................................................11
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS  VIRGINIA  2012
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Preface
Important Informaton to Read Before Using This Directory
The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings
(Directory) is a compilaton of existng statutory provisions, case law, and court rules requiring
or permitng judges to appoint counsel for civil litgants. The Directory consists of 51 detailed
research reports—one for each state plus D.C.—that present informaton organized by types of
civil proceedings. Prior to using the Directory, please read the Introducton, at the Directory’s
home page, for the reasons behind the development of the Directory, the various sources of
authority from which judicial powers to appoint counsel in civil proceedings may derive, and
the structure used to organize informaton within each of the research reports.
Terms of Use/Disclaimers
This Directory should not be construed as providing legal advice and the ABA makes no
warrantes concerning the informaton contained therein, which has been updated to refect
the law through early 2012. The Directory does not seek to address all conceivable subsidiary
issues in each jurisdicton, but some such issues were researched and addressed, including:
notfcaton of right to counsel; standards for waiver of right to counsel; standard of review on
appeal for improper denial of counsel at trial; whether “counsel” for a child means a clientdirected atorney or a “best interests” atorney/atorney ad litem; and federal court decisions
fnding a right to counsel. Similarly, the research did not exhaustvely identfy all law regarding
the issue of compensaton of appointed counsel in each jurisdicton, though discussion of such
law does appear within some of the reports.
The Directory atempts to identfy as “unpublished” any court decisions not published
within an ofcial or unofcial case reporter. Discussion of unpublished cases appears only for
those jurisdictons where court rules currently permit their citaton in briefs or opinions.
Limitatons on the use of unpublished opinions vary by jurisdicton (e.g., whether unpublished
cases have value as precedent), and such limits were not exhaustvely researched. Users should
conduct independent, jurisdicton-specifc research both to confrm whether a case is published
and to familiarize themselves with all rules relatng to the citaton and use of unpublished or
unreported cases.
Acknowledgments
This Directory was a mult-year project of the ABA’s Standing Commitee on Legal Aid
and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the Natonal
Coaliton for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted
to form the Directory’s reports. The Acknowledgments, at the Directory’s home page, details
additonal specifc contributons of the many individuals involved in this project.
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS  VIRGINIA 2012
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Law Addressing Authorizaton or Requirement to Appoint Counsel in
Specifc Types of Civil Proceedings
1. SHELTER
Federal Statutes and Court Decisions Interpretng Statutes
The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968,
provides that “[a]n aggrieved person may commence a civil acton in an appropriate United
States district court or State court….” 42 U.S.C. § 3613 (a)(1)(A). Further, “[u]pon applicaton
by a person alleging a discriminatory housing practce or a person against whom such a practce
is alleged, the court may-- (1) appoint an atorney for such person….” 42 U.S.C. § 3613(b).
2. SUSTENANCE
Federal Statutes and Court Decisions Interpretng Statutes
Title VII of the Civil Rights Act of 1964 prohibits employment discriminaton. While
nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specifed that
state courts have concurrent jurisdicton with federal courts for Title VII claims. Yellow Freight
System Inc. v. Donnelly, 494 U.S. 820, 826 (1990).
Title VII provides that “[u]pon applicaton by the complainant and in such circumstances
as the court may deem just, the court may appoint an atorney for such complainant….” 42
U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed:
Title VII's provision for atorney appointment was not included simply as an
aferthought; it is an important part of Title VII's remedial scheme, and therefore courts
have an obligaton to consider requests for appointment with care. In actng on such
requests, courts must remain mindful that appointment of an atorney may be essental
for a plaintf to fulfll “the role of ‘a private atorney general,’ vindicatng a policy ‘of the
highest priority.’ … Once the plaintf has triggered the atorney appointment provision,
“courts must give serious consideraton” to the plaintf's request … such discretonary
choices are not lef to a court's ‘inclinaton, but to its judgment; and its judgment is to
be guided by sound legal principles.’… Furthermore, in exercising this discreton, the
court should clearly indicate its dispositon of the request for appointment and its basis
for that dispositon.
737 F.2d 1173, 1183-85 (D.C. Cir. 1984).
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3. SAFETY AND/OR HEALTH
A. Domestc Violence Protecton Order Proceedings
No law could be located regarding the appointment of counsel for indigent litgants in
domestc violence protecton order proceedings.
B. Conservatorship, Adult Guardianship, or Adult Protectve Proceedings
State Statutes and Court Decisions Interpretng Statutes
In guardianship establishment proceedings, appointment of counsel is discretonary:
The respondent has the right to be represented by counsel of the respondent's choice.
If the respondent is not represented by counsel, the court may appoint legal counsel,
upon the fling of the petton or at any tme prior to the entry of the order upon request
of the respondent or the guardian ad litem, if the court determines that counsel is
needed to protect the respondent's interest. Counsel appointed by the court shall be
paid a fee that is fxed by the court to be taxed as part of the costs of the proceeding.
Va. Code Ann. § 64.2-1006. For guardianship review proceedings, there is not even a provision
for discretonary appointment of counsel; all that is provided for is appointment of a guardian
ad litem. Va. Code Ann. § 64.2-1012.
C. Civil Commitment or Involuntary Mental Health Treatment Proceedings
State Statutes and Court Decisions Interpretng Statutes
If a person is incapable of acceptng or unwilling to accept voluntary admission and
treatment for mental health issues, and he is not represented by counsel, the judge or special
justce shall appoint an atorney to represent him. Va. Code Ann. § 37.2-814.
D. Sex Ofender Proceedings
State Statutes and Court Decisions Interpretng Statutes
Upon the fling of a petton that a person is a sexually violent predator, and prior to any
hearing, the judge shall appoint an atorney to represent the person whose commitment is
sought. Va. Code Ann. § 37.2-906(B).
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State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
In Jenkins v. Director of Virginia Center for Behavioral Rehabilitaton, 271 Va. 4 (2006), a
case involving post-incarceraton civil detenton pursuant to the Virginia Sexually Violent
Predators Act, the court agreed with the non-binding plurality porton of Vitek v. Jones, 445 U.S.
480 (1980), which stated that there should be appointed counsel in cases involving involuntary
transfers of prisoners to mental health facilites owing to the strength of the liberty and stgma
interests at stake. The Jenkins court quoted from Vitek as follows:
A prisoner thought to be sufering from a mental disease or defect requiring involuntary
treatment probably has a [great] need for legal assistance, for such a prisoner is more
likely to be unable to understand or exercise his rights. In these circumstances, it is
appropriate that counsel be provided to indigent prisoners whom the State seeks to
treat as mentally ill.
Id. at 15-16 (quotng Vitek, 445 U.S. at 496-97). The Jenkins court therefore concluded that,
“[i]n view of the substantal liberty interest at stake in an involuntary civil commitment based
upon Virginia's Sexually Violent Predators Act, the due process protectons embodied in the
federal and Virginia Consttutons mandate that the subject of the involuntary civil commitment
process has the right to counsel at all signifcant stages of the judicial proceedings, including the
appellate process.” Id. (citatons omited). The court added that the right included efectve
assistance of counsel. Id. (citatons omited).
E. Involuntary Quarantne, Inoculaton, or Sterilizaton Proceedings
No law could be located regarding the appointment of counsel for indigent litgants in
civil proceedings involving involuntary quarantne, inoculaton, or sterilizaton.
4. CHILD CUSTODY
A. Appointment of Counsel for Parent—State-Initated Proceedings
State Statutes and Court Decisions Interpretng Statutes
For parents, Va. Code § 16.1–266(D) states:
A judge, clerk or probaton ofcer shall inform the parent or guardian of his right to
counsel prior to the adjudicatory hearing of a petton in which a child is alleged to be
abused or neglected or at risk of abuse or neglect as provided in subdivision A 2a of §
ABA DIRECTORY OF LAW GOVERNING APPOINTMENT OF COUNSEL IN STATE CIVIL PROCEEDINGS  VIRGINIA  2012
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16.1-241 and prior to a hearing at which a parent could be subjected to the loss of
residual parental rights. In additon, prior to the hearing by the court of any case
involving any other adult charged with abuse or neglect of a child, this adult shall be
informed of his right to counsel.
The provision further states that the parent has the right to retained counsel or appointed
counsel if indigent, or waiver of counsel (as provided in § 19.2-160), and that the court must
consider appointng counsel for an absent parent/guardian. Additonally, “[p]rior to a hearing
at which a child is the subject of an inital foster care plan fled pursuant to § 16.1-281, a foster
care review hearing pursuant to § 16.1-282 and a permanency planning hearing pursuant to §
16.1-282.1, the court shall consider appointng counsel to represent the child's parent or
guardian.”
Va. Code § 16.1-266 (E) adds: “In those cases described in subsectons A, B, C and D
[involving abuse/neglect or terminaton of parental rights], which in the discreton of the court
require counsel or a guardian ad litem to represent . . .the parent or guardian or other adult
party in additon to the representaton provided in those subsectons, a discreet and competent
atorney-at-law may be appointed by the court as counsel or a guardian ad litem.” Subsecton
(F) adds: “In all other cases which in the discreton of the court require counsel or a guardian
ad litem, or both, to represent . . . the parent or guardian, discreet and competent atorneys-atlaw may be appointed by the court.” “[A]ny appointment of counsel in additon to a guardian
ad litem is a mater lef to the sound discreton of the circuit court.” Tacket v. Arlington
County Dept. of Human Services, 62 Va. App. 296 (Va. Ct. App. 2013). See also Fredericksburg
Dep’t of Soc. Servs. v. Brown, 33 Va. App. 313 (Ct. App. 2000) (fnding no right to counsel for
parents at tme certain entrustment agreements were signed because neither parent could be
subjected to loss of residual rights and responsibilites at the tme of the hearing, given that no
petton for terminaton of parental rights had been fled and the state’s goal was stll
reunifcaton).
Federal Statutes and Court Decisions Interpretng Statutes
The federal Indian Child Welfare Act (ICWA), which governs child welfare proceedings in
state court,1 provides:
In any case in which the court determines indigency, the parent or Indian custodian shall
1
While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. § 1912(b) refers to
state law not providing for appointment of counsel. Additonally, 25 U.S.C. § 1912(b) states: “In any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the
parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of interventon.” These provisions, plus the fact that child welfare
proceedings typically occur in state court, suggest that ICWA applies in state law proceedings.
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have the right to court-appointed counsel in any removal, placement, or terminaton
proceeding….Where State law makes no provision for appointment of counsel in such
proceedings, the court shall promptly notfy the Secretary upon appointment of counsel,
and the Secretary, upon certfcaton of the presiding judge, shall pay reasonable fees
and expenses out of funds which may be appropriated pursuant to secton 13 of this
ttle.”
25 U.S.C. § 1912(b).
B. Appointment of Counsel for Parent—Privately Initated Proceedings
State Statutes and Court Decisions Interpretng Statutes
No law could be located regarding the appointment of counsel for indigent parents in
privately initated child custody proceedings.
C. Appointment of Counsel for Child—State-Initated Proceedings
State Statutes and Court Decisions Interpretng Statutes
For children in abuse/neglect and terminaton of parental rights proceedings, Va. Code §
16.1–266(A) states:
Prior to the hearing by the court of any case involving a child who is alleged to be
abused or neglected or who is the subject of ... a petton seeking terminaton of residual
parental rights ... the court shall appoint a discreet and competent atorney-at-law as
guardian ad litem to represent the child pursuant to § 16.1–266.1. 2
Subsecton (E) adds: “In those cases described in subsectons A, B, C and D [involving
abuse/neglect or terminaton of parental rights], which in the discreton of the court require
counsel or a guardian ad litem to represent the child or children . . . in additon to the
representaton provided in those subsectons, a discreet and competent atorney-at-law may be
appointed by the court as counsel or a guardian ad litem.” Subsecton (F) adds:
In all other cases which in the discreton of the court require counsel or a guardian ad
litem, or both, to represent the child or children. . . , discreet and competent atorneysat-law may be appointed by the court. However, in cases where the custody of a child
or children is the subject of controversy or requires determinaton and each of the
2
Va. Supr. Ct. R. 8.6 requires the guardian ad litem to advise the court of the wishes of the child where they
confict with the guardian ad litem.
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parents or other persons claiming a right to custody is represented by counsel, the court
shall not appoint counsel or a guardian ad litem to represent the interests of the child or
children unless the court fnds, at any stage in the proceedings in a specifc case, that
the interests of the child or children are not otherwise adequately represented.
“[A]ny appointment of counsel in additon to a guardian ad litem is a mater lef to the sound
discreton of the circuit court.” Tacket v. Arlington County Dept. of Human Services, 62. Va.
App. 296 (Va. Ct. App. 2013)
Federal Statutes and Court Decisions Interpretng Statutes
The Indian Child Welfare Act (ICWA), which governs child welfare proceedings in state
court, provides the following with regard to any removal, placement, or terminaton of
parental rights proceeding:
3
The court may, in its discreton, appoint counsel for the child upon a fnding that such
appointment is in the best interest of the child. Where State law makes no provision for
appointment of counsel in such proceedings, the court shall promptly notfy the
Secretary upon appointment of counsel, and the Secretary, upon certfcaton of the
presiding judge, shall pay reasonable fees and expenses out of funds which may be
appropriated pursuant to secton 13 of this ttle.”
25 U.S.C. § 1912(b).
The federal Child Abuse Preventon and Treatment Act (CAPTA) provides:
A State plan submited under paragraph (1) shall contain a descripton of the actvites
that the State will carry out using amounts received under the grant to achieve the
objectves of this subchapter, including— …(B) an assurance in the form of a certfcaton
by the Governor of the State that the State has in efect and is enforcing a State law, or
has in efect and is operatng a statewide program, relatng to child abuse and neglect
that includes-- … (xiii) provisions and procedures requiring that in every case involving a
victm of child abuse or neglect which results in a judicial proceeding, a guardian ad
litem, who has received training appropriate to the role, including training in early
childhood, child, and adolescent development, and who may be an atorney or a court
3
While the ICWA does not appear to have a defnitve statement about jurisdicton, 25 U.S.C. § 1912(b) refers to
state law not providing for appointment of counsel. Additonally, 25 U.S.C. § 1912(b) states: “In any involuntary
proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the
party seeking the foster care placement of, or terminaton of parental rights to, an Indian child shall notfy the
parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of interventon.” These provisions, plus the fact that child welfare
proceedings typically occur in state court, suggest that ICWA applies in state law proceedings.
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appointed special advocate who has received training appropriate to that role (or both),
shall be appointed to represent the child in such proceedings.”
42 U.S.C. § 5106a(b)(2).
D. Appointment of Counsel for Child—Privately Initated Proceedings
No law could be located regarding the appointment of counsel for children in privately
initated child custody proceedings.
5. MISCELLANEOUS
A. Civil Contempt Proceedings
State Statutes and Court Decisions Interpretng Statutes
In Krieger v. Commonwealth, 38 Va. App. 569 (Ct. App. 2002), the court declined to
appoint counsel in a civil contempt case pursuant to § 17.1-606 of the Code of Virginia, the
statue generally permitng appointment of counsel in civil cases. The court observed the
statute says an indigent “shall have, from any counsel whom the court may assign him . . . all
needful services . . . without fees.” (emphasis added). The court determined that this
guarantee does not specifcally require the appointment of such counsel. Id.
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
Krieger v. Commonwealth, 38 Va. App. 569 (Ct. App. 2002), examined the queston of
whether an indigent defendant, found guilty of civil contempt of court and sentenced to jail,
was enttled to court-appointed counsel on appeal, and recognized that it was a queston of
frst impression in Virginia. The court broadly stated that there was “no consttutonal or
statutory right for an indigent to have counsel appointed for trial in a civil case.” Id. at 576
(citatons omited). The court examined the due process claim under the framework of Lassiter
v. Department of Social Services, 452 U.S. 18 (1981), statng that “in civil maters, the
‘presumpton that an indigent litgant has a right to appointed counsel only when, if he loses, he
may be deprived of his physical liberty,’” is weighed against other elements in the due process
decision to determine, on a case-by-case basis, whether court-appointed counsel is warranted.
Id. (quotng Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26-27 (1981)). The court did not state at
the outset which consttuton the court was addressing, although it concluded that the
pettoner was “denied no right secured by the Federal Consttuton.” Krieger, 38 Va. at 585
(internal quotaton marks omited). The court then held that the contempt proceedings did not
hold a real threat to liberty because the contemnor “carried the keys of his own cell door in his
pocket.” Id. at 581. The Krieger court then applied the analysis from Mathews v. Eldridge, 424
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U.S. 319, 335 (1976), and found neither an interest of fundamental nature, nor a proceeding so
complex as to implicate equal protecton or due process concerns which would enttle appellant
to court-appointed counsel to pursue the appeal of the civil contempt order. Krieger, 38 Va. at
575-84. The Krieger court’s positon is at least partally supported by Turner v. Rogers, 131 S.Ct.
2507 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at
least where opponent is neither the state nor represented and mater is not “especially
complex”).
B. Paternity Proceedings
No law could be located regarding the appointment of counsel for indigent litgants in
paternity proceedings.
C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an
Aborton
State Statutes and Court Decisions Interpretng Statutes
In pettons fled by a juvenile seeking to bypass the parental consent requirement to
have an aborton, the court will advise the juvenile that she has a right to counsel and shall,
upon her request, appoint counsel for her. Va. Code Ann. § 16.1-241(W).
D. Proceedings Involving Claims by or Against Prisoners
State Statutes and Court Decisions Interpretng Statutes
Secton 53.1-40 of the Code of Virginia states that “[t]he judge of a circuit court in
whose county or city a state correctonal facility is located shall, on moton of the atorney for
the Commonwealth for such county or city, when he is requested so to do by the
superintendent or warden of a state correctonal facility, appoint, for a period of no less than
thirty days nor more than one year, one or more discreet and competent atorneys-at-law to
counsel and assist indigent prisoners therein confned regarding any legal mater relatng to
their incarceraton.”
State Court Decisions Addressing Open Access to Courts Principles4
Where a penitentary inmate repeatedly fled frivolous pettons for habeas corpus in
forma pauperis, the court allowed such pettons, recognizing the inmate’s right to access the
courts. Hawks v. Cox, 211 Va. 91, 95 (1970) (“No one should be denied access to the courts
4
Virginia does not have an “open courts” provision in its statutory or consttutonal law. However, some cases
discuss the principle of “access to the courts.”
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because of inability to pay the fling fees.”) While the court in Hawks allowed the fling of
pettons without requiring a fling fee, it stated: “We will, however, contnue to decline to
appoint counsel at state expense for an indigent who fles a petton repettous of issues
previously adjudicated. We would not have appointed counsel to represent Hawks on his
present petton except for the important questons raised by the Atorney General, as counsel
for respondent.”
E. Proceedings Involving DUI Charges
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
In Bailey v. Commonwealth, 215 Va. 130, 131 (1974), the Virginia Supreme Court held
that, “[b]ecause the [blood test prescribed by the Implied Consent Law] is civil in nature . . . a
person arrested for driving under the infuence does not have a consttutonal right to consult
with counsel before deciding whether to submit to the test.” See also Deaner v.
Commonwealth, 210 Va. 285, 293 (1969) (“Our conclusion is that the blood test prescribed is a
part of a civil and administratve proceeding and that Deaner had no right to conditon his
taking the test upon his ability frst to consult with counsel. . . . There has been no violaton
here of any consttuton right guaranteed defendant by either the Consttuton of Virginia or the
Consttuton of the United States.”).
F. Juvenile Delinquency and Child in Need of Supervision Proceedings
State Court Decisions Addressing Consttutonal Due Process or Equal Protecton
Where a juvenile court determined that a minor should be tried as an adult, the Virginia
Supreme Court found no due process rights were violated in the making of such a
determinaton without frst appointng counsel to represent the minor. Cradle v. Peyton, 208
Va. 243 (1967). The outcome hinged on the slight distncton between confnement orders
(which impose a sentence of confnement in an insttuton, and are viewed as restraints on
physical liberty), and certfcaton orders (which transfer cases to diferent courts for original
determinatons of whether the accused minor should be confned at all). Id. at 246. Because
the later order applied to the minor in Cradle, the absence of appointed counsel for the minor
did not raise federal due process issues under Applicaton of Gault, 387 U.S. 1, (1967).5 The
court then went on to fnd that the due process clause of the Virginia Consttuton does not
provide a right to counsel in juvenile court proceedings, based on its examinaton of the history
of the clause. Id. at 251.
5
The diference between the two types of orders is arguably a mater of semantcs, for a certfcaton order could
eventually result in the physical confnement of a minor just as a confnement order would. However, there is an
admited diference in the immediacy of the potental confnement and how many steps it takes to get to that
point.
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Law Addressing Authorizaton or Requirement to Appoint Counsel in
Civil Proceedings Generally
State Statutes and Court Decisions Interpretng Statutes
Secton 3538 of the Code of Virginia (1904), a remnant of Britsh common law (currently
codifed as Va. Code Ann. § 17.1-606), provides that “a poor person may be allowed by a court
to sue or defend a suit therein, without paying fees or costs, whereupon he shall have, from
any counsel whom the court may assign him, and from all ofcers, all needful services and
process, without any fees to them therefore, except what may be included in the costs
recovered from the opposite party.” See also Tyler v. Garrison, 120 Va. 697 (1917) (per curiam)
(declining to apply statute to appellate proceedings). The state supreme court has held that
this provision, while allowing appointment of counsel, does not in all cases specifcally require
the appointment of such counsel. Darnell v. Peyton, 208 Va. 675, 678 (1968) (notng, however,
that it is “‘beter practce’” to appoint counsel in civil habeas maters where “a petton
‘presents a triable issue of fact the clear presentaton of which requires an ability to organize
factual data or to call witnesses and elicit testmony in a logical fashion’” (citatons omited)).
The queston is whether a litgant would be “unconsttutonally be denied either access to the
Court system or a signifcant civil right.” Com. ex rel. McDonnell v. Financing Alternatves, Inc.,
79 Va. Cir. 14 (2009).
Federal Statutes and Court Decisions Interpretng Statutes
The federal Servicemembers Civil Relief Act (SCRA), which applies to each state 6 and to
all civil proceedings (including custody),7 provides:
If in an acton covered by this secton it appears that the defendant is in military service,
the court may not enter a judgment untl afer the court appoints an atorney to
represent the defendant. If an atorney appointed under this secton to represent a
servicemember cannot locate the servicemember, actons by the atorney in the case
shall not waive any defense of the servicemember or otherwise bind the
servicemember.
50 App. U.S.C. § 521(b)(2).
Additonally, 50 App. U.S.C. § 522(d)(1), which also applies to all civil proceedings
6
50 App. U.S.C.A. § 512(a) states, “This Act [sectons 501 to 515 and 516 to 597b of this Appendix] applies to-- …
(2) each of the States, including the politcal subdivisions thereof…”
7
50 App. U.S.C. § 521(a) states, “This secton applies to any civil acton or proceeding, including any child custody
proceeding, in which the defendant does not make an appearance.”
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(including custody),8 specifes that a service member previously granted a stay may apply for an
additonal stay based on a contnuing inability to appear, while § 522(d)(2) states: “If the court
refuses to grant an additonal stay of proceedings under paragraph (1), the court shall appoint
counsel to represent the servicemember in the acton or proceeding.”
8
50 App. U.S.C. § 522(a) applies to “any civil acton or proceeding, including any child custody proceeding, in which
the plaintf or defendant at the tme of fling an applicaton under this secton-- (1) is in military service or is within
90 days afer terminaton of or release from military service; and (2) has received notce of the acton or
proceeding.”
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