You Have a Right to an Attorney, But Only if Your Case is “Meritorious”

BREAKING NEWS! The Massachusetts Supreme Judicial Court has ruled that an indigent, unrepresented parent(s) seeking to 1) remove a guardian or 2) modify the terms of the guardianship “by seeking a substantial change in the provisions for visitation,” is entitled to have an attorney appointed, “provided the parent presents a meritorious claim.” See L.B. & another v. Chief Justice of the Probate & Family Court Department & others, SJC-11892, slip op. (May 4, 2016).

Prior to this case, the S.J.C.’s holding in Guardianship of V.V., 470 Mass. 590 (2015) had been interpreted to mean that an indigent parent was only entitled to the appointment of counsel during the initial guardianship petition which sought to remove the child(ren) from that parent. Thus, an indigent parent seeking to remove a guardian or modify the terms of the guardianship’s visitation terms was left to him or herself, to navigate the vast and often unpredictable legal seas.

The Court acknowledged a “recognition that the important question whether a parent has a right to counsel applies equally to all phases of the proceedings,” by stating:

It would be incongruous to recognize the significance of the parent’s rights for due process purposes at the time those rights are first displaced, as we did in Guardianship of V.V., but not to do so at the time the parent seeks to regain them.

The Court has obviously done the right thing with its ruling today.

Here’s the problem. The Court has caveated the entitlement to counsel based on the parent presenting “a meritorious claim.” The Court went on to clarify that “colorable” or meritorious claim means “it is worthy of being presented to and considered by the court. See General Motors Corp., petitioner, 344 Mass. 481, 482 (1962) (“…not one which is sure of success.”)

Moreover, the Court has left to the administrative bodies governing the Probate & Family Courts in Massachusetts, to devise methods by which judges may determine when and whether a parent can present a meritorious case. They made the following observations:

  1. Should the courts create forms that will help the parent articulate – in plain, non-legal terms – the reasons why the guardian should be removed, or the visitation modified, and the facts on they rely?
  2. Should the parent be made to file the petition before an attorney is appointed, or should the courts create an application for counsel form on which the parent will articulate – in plain, non-legal terms – the reasons why the guardian should be removed, or the visitation modified, and the facts on they rely?
  3. Should the courts promulgate rules or guidelines which limit the number of petitions a parent can file, so as to discourage the filing of unnecessary petitions?
  4. At the time that the initial guardianship is approved by a judge, should the judge indicate to the parent on what conditions the parent might realistically expect to petition for removal or modification?

In short, while the Court has certainly filled an important and valuable hole in the due

process umbrella of indigent parents, it has also created a procedural nightmare for clerks and judges of the Probate & Family Court, who must now decide how, when and if a parent’s case is meritorious for the purposes of determining if a parent qualifies for a state funded attorney.

Guardianship law is complex and evolving. If you have questions about this, or any other legal issue, consult the attorneys of Hutchins Law, P.C. today.


The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.