Court rejects right to divorce lawyer

OLYMPIA – In a closely-watched case, the state Supreme Court ruled 7-2 Thursday that indigent people do not have a right to a court-appointed divorce lawyer.

Perhaps they should, Justice Charles Johnson wrote for the court’s majority, given the complexity of some divorces. But he said it’s not the court’s place to dictate that.

“The decision to publicly fund actions other than those that are constitutionally mandated falls to the Legislature,” Johnson wrote. And a court-appointed lawyer is generally only mandatory in cases where a person risks incarceration, he said.

In a dissent, Justice Barbara Madsen said indigent people struggling for custody of their children should indeed get a publicly paid lawyer if needed.

“As this court has observed,” Madsen 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 involved a Snohomish County woman named Brenda King. After 10 years of marriage, her husband, Michael King, filed for divorce in 2004. He hired a lawyer.

A stay-at-home mom who left school in the ninth grade, Brenda King was the primary caretaker for the couple’s three children, as well as her two older children. With the divorce looming, she unsuccessfully sought help from local legal aid groups before finally using her rent money to hire a lawyer. When she couldn’t pay more, the lawyer withdrew from the case.

She continued to ask legal-aid groups for help finding a pro-bono attorney. Although several read her file, they wouldn’t take the case, calling it too complex and time-consuming. King decided to try to represent herself.

“I am pro se because I am broke,” she wrote to the judge.

The only contested issue was the primary home for the couple’s three children.

The five-day trial was a disaster for her, judging by Madsen’s detailed accounting of it in her dissent. When a court-appointed expert claimed that the children came to school hungry – something school officials later denied, in writing – King didn’t call any witnesses to refute it.

She didn’t know how to obtain documents, call supportive witnesses or introduce evidence. She failed to challenge a flawed anger-management report about her husband. Over and over, she failed to object to hearsay and speculation. And she hurt her own case by letting her emotions get the best of her.

“This should surprise no one; the stakes were huge,” Madsen wrote. “She was facing the loss of her children.”

Not surprisingly, her husband won primary residential custody. Brenda King got the kids on alternating weekends, four weeks during the summer and on spring break every other year.

State law allows a judge in some divorce cases to order one side to pay for both lawyers. But Brenda King never requested that, nor would she probably have gotten it, according to her lead attorney, Katie O’Sullivan.

“It would have been a futile gesture,” O’Sullivan said, because Michael King, a landscaper, was also indigent. She said it’s unclear how he managed to afford his own lawyer.

“Michael King was not some kind of Microsoft millionaire who hid the assets,” she said.

Writing for the majority, Johnson said other states and federal courts have also concluded that there’s no constitutional requirement for a court-appointed divorce lawyer. After all, he wrote, divorces are private disputes. And a parenting plan doesn’t terminate a parent’s custodial rights – which the court in 1974 said does require a court-appointed 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 children’s interests.

Madsen, writing for herself and fellow dissenter Justice Tom Chambers, said divorces involve a fundamental value: the bond with one’s children.

Even with partial custody, she wrote, a parent in such a case “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 another child. … When a child is removed from the parent’s home, thousands of moments of interactions are lost.”

O’Sullivan said the case highlights how difficult it is for indigent people to navigate the legal system.

“Without a lawyer, it is very tough to have a fair shake,” she said. “There are a lot of other people like that, and they are falling into the cracks of the existing legal system of the state.”