Appointed Counsel in Custody Proceedings

The Seattle Times today published a story about an upcoming Washington State Supreme Court case in which a woman claims that the Snohomish County Superior Court granted full custody to her ex-husband, as a result of her financial inability to secure legal counsel. Ever since Gideon v. Wainwright, in which the SCOTUS found that the right to counsel is part of the fundamental right to a fair trial, defendants who faced any amount of jail time were to be appointed legal representation paid for by the public (Federal, State, County governments).

This particular case is interesting. The two parties - Brenda Leone King and her ex-husband Michael King - are engaged in civil litigation, and in Washington State defendants are appointed public counsel in civil litigation only when the State is involved. When the conflict is between two private parties, appointment of counsel is not required. It makes sense for defendants against the state to be appointed counsel, as the resources which back up the AG's office far outweigh the resources most private citizens have at their disposal. And when civil cases are held between two high-profile parties, say, a single parent bringing suit against a large corporation, members of civil-society or private firms often offer pro bono counsel. Custody hearings, though, occur so often and are so private (indeed, they are fundamentally limited to the family unit) that such cases are unlikely to attract the aid of such organizations. However, the consequences of such hearings are critical; they determine, essentially, the quality of life of children.

I'm not a lawyer, nor am I legal scholar, but it seems as though the normative values that are inherent in Gideon v. Wainwright and public defender programs more generally are the same. The idea of appointing publicly funded counsel to poor defendants is rooted, normatively, in the idea that might does not make right. Clarence Earl Giddeon was convicted, originally, because he was poor. He was unable to successfully defend himself in the Bay County, Florida Circuit Court as he had no law training, and when competing against the formal training of the country prosecutor's office, the outcome was essentially a foregone conclusion.

While Brenda Leone King never faced the spectre of incarceration, it appears that there may be a chance that the outcome of her custody battle was rooted in her relative poverty. Her ex-husband was able to secure a lawyer, and with that lawyer came a slew of experience and legal resources. Perhaps the Snohomish County Superior Court's decision was, objectively, for the best, and Michael King is the best parent, but that cannot be known for sure as Michael King was at a distinct advantage in the proceedings. Let's say then that, objectively,Brenda Leone King is the best parent - she lost because she was poor. Her children are, potentially, living in sub-optimal conditions given the court's decision. The whole point of public counsel is to determine, as best as can be done, that which is objectively best, and when it comes to parenting and raising children, this is of fundamental importance.

Lucky for Brenda Leone King, lawyers from Perkins Coie, a well established and elite Seattle Law Firm, as taken up her case, pro bono, for the Supreme Court proceedings, and she has also found support from the Washington State Bar Association, and The National Coalition for a Civil Right to Counsel, based in Baltimore.

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Child Custody - Another View

Corpus Juris has a post below discussing the deplorable child custody issues confronting service members. I would like to contribute my own experiences in this field, with the caveat that I am not a service member. Also, in the interest of credit where credit is due, my ex-wife never pulled any of these shenanigans on me (her mother did).

I was divorced in Connecticut about 12 years ago, so the laws may have changed (although knowing Connecticut, they probably haven't). Every state has its own divorce and family law system, so my experiences may not be applicable in other states.

First, the circumstances leading to the divorce.

My wife and I both worked, and her mother took care of our son while we were at work. Mom -- and I use the term solely for brevity; I wouldn't have called her Mom to her face for all the money on Earth -- considered "child care" to be parking our son in front of the TV all day, every day. And the TV wasn't on PBS or Nickelodeon, either, it was on NBC, so Mom could watch her soap operas... which meant our son was also exposed to those moral giants (I didn't discover this till the court hearings).

Young children -- our son was two at the time -- will occasionally act up or cry. I walked in after work one day, just in time to hear Mom yell, "You little bastard, if you don't f***in' shut up, I'll beat the piss outa you." I walked in just as she backhanded him. Instead of doing the sensible thing -- scooping up our son and leaving -- I tried to find out what was wrong, and why she was yelling like that at a two-year-old. Well, Mom, being full-blooded Sicilian, called her son (who lived next door) and told him to come over and "teach me a lesson". Jimmy came over, all 6-03, 240 drunken pounds of him, carrying a baseball bat. I told him, "I put you in the hospital once. You want to go back?" (long story), at which point he decided he had to go mow his lawn. Mom called the cops, which was the best thing she could have done, because I had been a member of the department that would respond. I went outside to wait.

The cops showed up, interviewed Mom (whom they already disliked from previous contacts), interviewed me, then got between us when Mom came out of the house with a cast-iron skillet. She started tussling with the cops -- not a good idea -- and went for a ride in the back seat of a cruiser.

My wife got home, found out what had happened, bailed Mom out, and threw my ass out of the house. I had two hours to pack what I could into the back of my van. Her brothers then helped themselves to the rest of my belongings. My lawyer subsequently told me I had no recourse, in that I had been thrown out (the house was in her name; I moved in when we married).

It took three months to schedule a custody/visitation hearing. During that time, I had no contact with my son, despite my wife saying I could pick him up now and then - every time I got to the house, Mom would say "My daughter took him with her, so you're outa luck." Again, no recourse, according to the lawyer.

Mom also tried to get a restraining order against me, which was actually issued. The first day she had the order, she drove 50 miles to my job, walked up to my dek, and tried to have me arrested for being within 500 feet of her. Fortunately, the local cops looked at her address, and arrested her for filing a false report. Based on their investigation, the issuing judge rescinded the original restraining order, and granted me one against her.

During the custody hearing, we were awarded what is laughingly referred to as "joint custody": primary residence with his mother, while I had him one evening a month (four hours), and one weekend every two months. Apparently, my visitation was so limited because I was working every minute of overtime I could get -- I had to pay rent ($150), utilities ($50), groceries ($40, cause I had to scrimp somewhere), support ($74 a week), commuting ($40), etc, all on $9.50 an hour. That's $365 coming out of $380 per week, before taxes. I also had to provide full medical, dental, and life insurance coverage through my benefits, which further ate into the take-home pay.

The first time I swung by to pick him up for the evening, good old Jimmy told me my wife and our son had "moved", and he didn't know where they were. I knew where her other brother lived, and called a friend on that town's police department. Yup, sure enough, her car was in her brother's driveway. My lawyer managed to get an emergency hearing scheduled... for three weeks later.

At the emergency hearing, my cop buddy testified as to where my soon-to-be ex had "moved", the local cops testified as to Mom's behavior, and the cop where I worked testified about the restraining order business. The judge looked at Mom and my wife and -- finally -- did something in my favor: she told them that visitation was not optional, and if they continued to interfere with visitation, they could "spend the weekend playing leapfrog with the dykes at the women's prison."

I learned a few things during the actual divorce proceedings too:

• I had the "right" to pay child support for the next 16 years, but if my ex spent the money on clothing for herself, trips for herself, or even crack, I had no say in the matter.
• If she became a prostitute, or otherwise unfit as a parent, primary custody would bounce to her mother; the CT courts officially felt the "best interest of the child" was always with a female.
• Despite visitation not being optional, her only obligation was to make our son available to me at her front door. If she moved to Hawaii, she just had to have him at the door; it was up to me to get there... at my own expense, of course.
• If I got a pay raise, she could petition for an increase in child support; conversely, if I lost my job, I could not petition for a reduction or suspension. If I took a subsequent job at lower pay, I could not petition for a reduction. The only direction the support could go was up.
• [Edited to add a point I missed] The husband is presumed to be father, which makes sense, but if a blood test specifically excludes the husband, the husband is still presumed to be the father... and hence, responsible for paying support.

To reiterate what I said at the top of this piece, my ex-wife did none of these things.

BUT SHE COULD HAVE... and I would have had no recourse whatsoever.

In fact, she has done an excellent job raising our son. She is also now estranged from her mother, having realized that Mom almost got her locked up.

The divorce laws -- as they existed in Connecticut at that time -- were quite medieval: the state assumed "as a matter of common knowledge" that a woman could not fend for herself under any circumstances, that the husband/father was always inherently at fault, that a male could never be as good a caregiver as a female, and that "the best interests of the child" required bowing to every demand of the mother (or more correctly, her lawyer), no matter how outrageous.

I recently spoke to a lawyer specializing in "fathers' rights" in Connecticut; he told me the main difference now was that if my ex were incarcerated for a drug-related felony, I could petition for primary custody. Not that I would be granted custody, mind you, merely that I could petition. The lawyer said he had not heard of a father being awarded custody, other than at the mother's request.

So, yes, Corpus Juris is right, custody is an ugly, ugly battle. But it generally isn't the father taking advantage of the mother, but the other way around.

Either way, though, the divorce and custody laws have to be revisited and brought into the 21st century. Service members, regardless of gender, should not be screwed over by unscupulous lawyers (and they should be severely sanctioned if they try it).

And fathers should receive "equal protection" under the law.

There's more: "Child Custody - Another View" >>

Child Custody--The Two Front War

The AP is reporting the story of Lt. Eva Crouch of the Kentucky National Guard.

She had raised her daughter for six years following the divorce, shuttling to soccer practice and cheerleading, making sure schoolwork was done. Then Lt. Eva Crouch was mobilized with the Kentucky National Guard, and Sara went to stay with Dad.

A year and a half later, her assignment up, Crouch pulled into her driveway with one thing in mind — bringing home the little girl who shared her smile and blue eyes. She dialed her ex and said she’d be there the next day to pick Sara up, but his response sent her reeling.

“Not without a court order you won’t.”

It seems that while Crouch was deployed to Iraq, Sara's father, Charles, had gone to court and obtained a permanent order granting him custody.

Not fair you say, and you are right. Unfortunately many courts believe child custody issues trump the Servicemembers Civil Relief Act of 2003, which generally stays all court proceedings while a service member is deployed overseas. From the point of view of most Judges, a Court's first duty is to the "best interests of the child." The best interests are the present interests of the child. If there is a parent willing and able to act right now, the interests of the deployed parent are secondary.

Jeffery M. Leving and Glenn Sacks identify a couple of related family law problems. The first is

paternity fraud. According to Carnell Smith, Executive Director of the National Family Justice Association, deployed soldiers are often "targeted and preyed upon" by unscrupulous "father shoppers" who falsely designate absent military men as the fathers of their newborns. He says:

"The military provides a steady, easily garnished income as well as medical care for the baby. It's hard to contest paternity when you're thousands of miles away and losing a good chunk of your income to child support. Sometimes the guy ends up on the hook for 18 years of child support simply because he served his country."

A third family law deployment problem involves child support paid by reservists.

Support orders are based on civilian pay, which is generally higher than active duty pay. When called up, a reservist sometimes pays an impossibly high percentage of his (or her) income in child support, which hurts his (or her) current family. Because those who fall behind in child support are charged stiff interest and penalties, a returning reservist may spend years working to pay off arrearages incurred during his service overseas. Worse, some could even face arrest and incarceration.

Some states have passed laws alleviating the above cited problems. Others haven't. How is your state treating its deployed parents and their children?

These may sound like "conservative" or "angry father" problems, but they really aren't. They are problems that confront many of our deployed troops. According to the AP story, "Military and family law experts don’t know how big the problem is, but 5.4 percent of active duty members — more than 74,000 — are single parents, the Department of Defense reports. More than 68,000 Guard and reserve members are also single parents. Divorce among service personnel is rising."

There are some pretty obvious solutions. As to custody, courts should be limited to temporary orders so long as a service member is deployed. Paternity fraud is easily solved by paternity testing. When you are a 20 year old soldier paternity testing is expensive. It is also difficult to accomplish when you are deployed in Iraq. The accused soldier's military branch should pick up the bill and its JAG should work on behalf of the deployed service member. Finally, the military should pick up a reservist's full child support obligation while he or she is deployed. The solutions cost money. So what. It's the least we can do.

Oh, Lt. Couch recently won custody of her daughter. The Kentucky Supreme Court, citing recently enacted law, overturned the trial court's decision. I would say it was a happy ending, but this is a family law matter, there are never any "happy endings."

There's more: "Child Custody--The Two Front War" >>