This guest Slog post is by Christopher Rao, managing partner of Rao & Pierce PLLC, and former Chair of the KCBA Family Law Section. He also runs decouplingblog.com, which helps make family courts more accessible to men and women who cannot afford attorneys.
A number of father's rights groups have been increasingly vocal about the belief that fathers are typically treated unfairly in our courts—in essence, that dads are the real victims of nasty custody fights. It is disappointing that these misguided beliefs have been accorded an air of legitimacy by Nina Shapiro's recent cover story, dramatically titled, "Ripped Apart: Divorced dads, domestic violence, and the systemic bias against men in King County family court."
The article dutifully quotes a few female attorneys to make its point that men are consistently treated unfairly in King County Family Court. One attorney recounts a busy day on the calendar where a commissioner ruled against the man seven or eight times in a row. The piece narrates a couple of heartbreaking one-sided anecdotes—conveniently interviewing only the man's attorney in each case. It then criticizes three female family law commissioners by name for a variety of offenses, including fining one man's attorney $500 "for writing too much in defense of his client" (but the fine was for violating court rules on page limits).
Over the years I’ve seen many attorneys angrily (and disrespectfully) grandstand in court for the benefit of their pissed-off unrealistic clients, male and female—and heard these same attorneys, after losing their case, criticize the court for various types of bias. The truth is that wining in Family Court depends mainly on avoiding dubious he-said, she-said hysteria, and instead presenting a reasonable proposal to the court, backed by solid evidence from reliable sources.
Just last month, the week before Christmas, I represented a dad whose son had been removed from his custody via an ex parte restraining order based on flimsy evidence of allegedly beating his son—mere days after CPS apparently found that the mother’s complaints about the dad lacked credibility. My client was terrified before the hearing, partly because of how he looked (6'4" with a prominent tattoo), but also because he'd actually been to jail for domestic violence against the child's mother in the early 1990s and just been out of alcohol rehab last year. But the female commissioner relied less on what each parent said, and instead looked at the more reliable evidence: the boy's school records, emails to and from teachers, highly detailed statements from neighbors, etc. She wisely noted that the dad had nothing more serious than a traffic ticket in well over a decade. She was pleased with his transparency, his consistent parenting over the years, his eagerness to submit to random urine samples and a domestic violence evaluation. And she returned this boy to his dad, just in time for Christmas.
While this careful treatment by the court was a huge deal to my client (who agreed to let me tell his story here), the point is that it was just an average hearing for the court, on an average afternoon with four or five other hearings. Tellingly, before we even knew which commissioner would be hearing the motion, we were confident that the court would take the time consider all the evidence and subtleties of the case. Even if the commissioner had got it wrong that day, litigants have numerous checks and balances at their disposal: You can file a reconsideration, and the court will often even look at new evidence. If you still feel aggrieved, you have an automatic right to have a do-over (called a "revision"), this time in front of an elected judge (more than half of whom are men, as if that matters). And if you are still dissatisfied, you can ask the judge to reconsider his or her ruling as well. In fact, if anything I believe that commissioners are more careful than judges because every single decision can be automatically sent up for revision. By contrast, judges cannot be revised, and appeals to the Court of Appeals typically require more than a year and tens of thousands of dollars.
It’s true that even after all these hearings and motions, many dads (and moms) still feel that they should have prevailed. That's natural, given all that they've lost. Hell, Seahawks fans still gripe about how the refs robbed us in Super Bowl XL, more than six years ago—and that was just a football game. Institutional bias exists in the world. It's a serious matter, and deserves proper attention. But to carelessly throw around these words absent proper data is irresponsible—it offers a convenient panacea to avoid taking responsibility for one's own actions. The truth is that most men—and women—in family courts would rather blame anyone but themselves for their predicament, and that most of them are in court to begin with because of their own bad decisions and/or behavior.
Such claims of bias claims also excuse lazy lawyering, which starts with marketing one's skills to frustrated men ("divorce for dads"), builds on unrealistic client expectations, and often ends with telling the completely disempowered (and substantially poorer) client that there's nothing the lawyer could have done because the commissioner was a woman (four out of five in King County).
Finally, parading men as the victims of custody fights marginalizes the true victims—children. The standard for all custody issues in Washington state is "the best interests of the child." Children suffer the violence and abandonment on a daily basis, from both their mothers and fathers, yet have almost no voice at all in this process.