Due Process & Family Law

Due process rights set forth certain procedures that must be followed when persons face criminal allegations or civil suits. Many situations within family law, including divorce, termination of parental rights and child abuse have due process components. These issues are complex, and you should contact a family law attorney to ensure enforcement of your rights.

Definition of Due Process

According to Black's Law Dictionary, due process is "the conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notices and the right to a fair hearing." The right of due process is so fundamentally important that the U.S. Constitution contains Due Process Clauses in the Fifth and Fourteenth Amendments. The Fifth Amendment prohibits the federal government from "unfairly or arbitrarily depriving a person of life, liberty, or property" while the Fourteenth Amendment prohibits the states from similar deprivation.

Divorce

Due process requires that defendants in a divorce case be given "notice of the suit and an opportunity to be heard." Notice typically means the defendant is notified of the suit in person; however, "constructive service" often is permitted in divorce cases. Constructive service means notice by means of publication in a paper, posting a notice, or by mail. Remember that specific methods of permissible notice or service differ by jurisdiction.

Termination of Parental Rights

Due process rights apply to defendants threatened with termination of parental rights. Some states require that the notice provided under due process inform the recipient that termination of parental rights might occur. The Supreme Court ruled in 1981 that due process does not guarantee appointment of counsel when termination of parental rights is threatened. Instead, it is left to the trial court's discretion. Due process guarantees some protections, and you should contact an attorney if you are faced with termination of your parental rights.

Child Abuse

Due process also applies in child abuse situations. When a parent may face criminal charges leading to imprisonment, the Supreme Court holds that a Constitutional due process right to appointed counsel may exist. The Due Process Clause of the Fourteenth Amendment may require allegations of child abuse be established with "clear and convincing" evidence. This standard weighs both the risk of the child and the risk of the loss of liberty of the accused.

Locating a Family Law Attorney

Navigating the legal system without an attorney is very difficult, and due process issues within family law are complex. There are many ways to find a family law attorney. Getlegal.com provides a convenient search mechanism. Martindale.com is another reputable online attorney locating system. Both online sources allow you to limit your search by your location. You also can contact your local bar association for an attorney referral. The American Bar Association also provides an attorney locator tool under the Public Resources tab.

References

• Black's Law Dictionary, Second Pocket Edition; Bryan A. Garner, Editor; 2001
• The Law of Domestic Relations in the United States, Second Edition; Homer H. Clark, Jr.; 1988
• Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 927 (1981)

Resources

• Get Legal Attorney Locator
• Martindale Attorney Locator
• American Bar Association