December 31, 2004 in City

Pregnant woman can’t get divorce

Thomas Clouse Staff writer
 

fast fact

Husbands, dads

» The state’s Uniform Parentage Act establishes the rules for who cares for children – including those not yet born – in cases of divorce. A husband is presumed to be the father of any child born up to 300 days after a divorce.

A Spokane woman wants to divorce her abusive husband but a retiring Superior Court judge won’t allow it while she is pregnant.

The case pits a first-year attorney who believes that state law clearly allows any couple to divorce if neither spouse contests the action against a longtime family law judge who has one week left on the job. Judge Paul Bastine says case law favors the rights of the unborn child over the woman’s right to divorce.

To complicate the case even more, the mother, Shawnna Hughes, claims in court records that her husband is not the father of her unborn child.

“It’s not the child’s fault that mom got pregnant,” Bastine said. “The answer is, you don’t go around doing that when you’re not divorced.”

Hughes’ attorney, Terri Sloyer of the Center For Justice, argues that nowhere in state law does it say that a mother can’t get a divorce if she’s pregnant.

“We don’t live in 15th century England,” Sloyer said. “I am absolutely dumbfounded by it.”

The case began last March when Shawnna Hughes approached Sloyer about getting a divorce from Carlos Hughes, who was convicted in 2002 of beating her. At the time, Carlos Hughes was scheduled to be released from jail within a month.

With Sloyer’s help, Hughes filed for divorce on April 15. Carlos Hughes never contested and on Oct. 26, Court Commissioner Pro Tem Julia Pelc approved the divorce, Sloyer said.

However, Hughes – who separated from her husband after the Sept. 2002 attack – started seeing another man, Chauncey Jacques. Before her divorce from Carlos Hughes could become final, Shawnna became pregnant, according to court records.

Deputy Spokane County prosecutor Mary Valentine learned of the pregnancy, which was not noted in divorce papers, and called Sloyer about it. Sloyer acknowledged that her client was pregnant and filed amended paperwork with the court prior to the Oct. 26 hearing.

“The day after those orders were entered, I had a brief telephonic hearing with Judge Bastine,” Sloyer said. “He told me on the phone … ‘I’m going to vacate it. You need to show me why I shouldn’t.’ ”

Shawnna Hughes receives child- and medical-support payments from the state for her two children with Hughes. As a result, Valentine was assigned to the case to protect the state’s interest, according to court records. It’s Valentine who reported the pregnancy to Bastine. She could not be reached Thursday for comment.

The state’s Uniform Parentage Act establishes the rules for who cares for children – including those not yet born – in cases of divorce. A husband is presumed to be the father of any child born up to 300 days after a divorce.

Valentine represents the state, which is involved in the case because Hughes receives state aid. She argues in court documents that the paternity issue should be settled before the divorce because the state has to know whom to charge for child support.

Bastine agreed, and noted that the husband initially was given paperwork indicating his wife was not pregnant. That was not accurate at the time of the October hearing, even though it was accurate in April, when the original paperwork was filed.

“One of the problems here was that the child was not made party to the litigation,” said Bastine. “There are statutory provisions that deal with paternity. Those are the statutes that are critical ones that determine the rights of the child.”

Bastine rescinded the divorce after a Nov. 4 hearing.

Sloyer contends the ruling violates Hughes’ right to get a divorce. The state shouldn’t be worried about its interest because the real father has said he will support the unborn child.

“The judge said, ‘This is the law of the state of Washington. You will not find it in a statute, you will not find it in case law, but it is implied.’ That’s what he said,” Sloyer said.

Bastine, whose last day as a judge is Jan. 7, didn’t necessarily argue that point. But, he said, “there’s a lot of case law that says it is important in this state that children not be illegitimatized.”

That case law includes scenarios where fathers contested their paternity while they were jailed or serving overseas in World War II. “The father was out of the country and paternity was upheld … even though it was physically impossible for them to be the father,” Bastine said. “It’s not a logical kind of thing from a scientific perspective. But the state has to consider the interests of the children as paramount.”

Sloyer this week filed paperwork asking the state Court of Appeals to accelerate the hearing of the case in an effort to get Bastine’s ruling overturned before Hughes has her baby.

“This is a very dangerous precedent to set. Particularly in this case with a woman who is a victim of domestic violence,” Sloyer said. “If (Carlos Hughes) can get to her, we not only have put her life at risk but the risk of the unborn child.”

But a court order remains in place that prevents Carlos Hughes from contacting his wife, Bastine said.

“It is simply a matter of waiting for the child to be born so paternity can be determined,” he said.

Shawnna Hughes could not be reached Thursday for comment. But she submitted comments to Bastine in the court file.

“If this court vacates my divorce and requires me to stay married to a man I have no desire to ever have a relationship with and who has brought significant physical harm to me over the years I would be emotionally devastated,” she wrote. “If this court vacates my divorce and stays it until the birth of my child, it will prevent me from marrying the father of my child prior to her birth.”

Hughes is due to give birth in March. Court records and Sloyer both say the father is Chauncey Jacques, who pleaded guilty to a gang-related shooting in 1998 that blinded an elderly man who lives next to Corbin Park.

Asked why her client would want to divorce a wife beater so she can marry a man convicted of a drive-by shooting, Sloyer said she’s never met Jacques.

“I know nothing” about his past, she said. “I want to be clear on one thing. She has the right to divorce and be free to marry whoever she wants. It’s about the choice, the fundamental right to choose.”

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