In a closely-watched case, the state Supreme Court this morning ruled 7-2 that indigent people do not have a right to a court-appointed lawyer for a divorce.
Perhaps they should, Justice Charles Johnson wrote for the court's majority, given the complexity of divorces and what's at stake. But if so, he said, it's not the court's place to dictate that. Only loss of liberty in a criminal case or complete termination of parental rights by the state trigger a requirement for free legal representation.
"It may be that the legislature should expend resources to address the complexity that often accompanies dissolution proceedings. A wise public policy . . . may require that higher standards be adopted than those minimally tolerable under the Constitution....However, the decision to publicly fund actions other than those that are constitutionally mandated falls to the legislature."
In a dissent, Justice Barbara Madsen argues that such a right does exist for people -- as in this case -- struggling over custody of their children.
"As this court has observed," she wrote, "a parent's right to custody and control of his or her children is more precious to many people than the right of life itself."
The case involves a Western Washington woman, Brenda King, with only a 9th grade education. After 10 years of marriage, her husband, Michael King, filed for divorce. Fighting for custody of her three children, she spent her rent money on a lawyer, ran out of cash, and repeatedly appealed to legal aid groups for help. They were unable to find a lawyer who would take the complex case. She ended up representing herself in court against her husband's lawyer during a five-day trial.
Not surprisingly, her husband won primary residential custody. She got the kids on alternating weekends, four weeks during the summer, and on spring break every other year.
Writing for the majority, Justice Johnson noted that other states and the federal courts have weighed the same issue and concluded that there's no constitutional requirement for a court-appointed divorce lawyer. After all, he writes, divorces are private disputes, and a parenting plan doesn't terminate a parent's custodial rights -- which the court in 1974 said does demand a free lawyer if needed.
Also, Johnson wrote, there are built-in safeguards to prevent "erroneous" decisions in divorces involving kids. A judge can seek expert advice or appoint a guardian ad litem to represent the childrens' interests.
Madsen, writing for herself and fellow dissenter Justice Tom Chambers, argues passionately that divorces are not akin to a simple tort claim and do involve a fundamental right: day-to-day care of one's children:
"The majority's reasoning ignores the very real effect of what happens when one parent is denied primary residential placement after she has been the primary caregiver of her child."
"Where before she was involved in the day-to-day interactions, nurturing, and decision-making that together comprise a great part of a parent's relationship with her child, once her
child is placed elsewhere she loses the day-to-day relationship in which she directed the upbringing and education of the child, nurtured him through the innumerable ups and downs of a young person's life, and helped prepare the child for his own responsibilities and duties in life.
She loses the day-to-day emotional contact and physical contact. She loses the hectic surroundings of the morning when she helps the child get ready for school and the good-night rituals that precede bedtime for her child. Her child will not be in her home so that she can soothe him when he is hurting from a skinned elbow or from the unkind words of
She will not be present in her children's daily lives to provide ongoing spiritual guidance, if she wishes, or to teach manners and civic responsibility when each new day brings the opportunities to do so. She and her child will not be together day by day to nourish and share their love for each other.
When a child is removed from the parent's home, thousands of moments of interactions are lost. Those thousands of moments, adding up to years of development, are no longer hers.