Divorced dads, domestic violence, and the systemic bias against men in King County family court.
By Nina Shapiro
Jim's first indication that his life was about to be turned upside down came the night he got home from work and was approached by an off-duty sheriff's deputy."Are you Jim?" the deputy asked.
"I am," he replied.
The deputy then informed him that not only was he no longer welcome inside his own house, he wasn't allowed even to collect his things. The officer handed him a suitcase his wife had packed and a $3,000 check—also from his wife, who earned far more than he did.
"What are the grounds?" Jim asked.
"It's all in there," the deputy said, thrusting a sheaf of papers into his hand.
The papers informed him his wife was filing for divorce. Worse, she had requested, and been granted, a temporary protection order based on allegations of domestic violence. The order—issued at a hearing that took place without Jim—took effect immediately. It required him to vacate his house and refrain from "any contact whatsoever" with either his wife or his 3-year-old son.
But there's one thing she never claimed—that Jim had ever hit her or their son. Nor did she accuse Jim of threatening either of them.
Jim, an insurance agent periodically unemployed, had at times performed more child-care duties than his wife, according to a court-assigned social worker hired to assess each spouse's parenting skills.
Observing interactions between Jim and his son, and talking to friends, relatives, and neighbors, she called the bond between them "relatively strong, happy, interactive, comfortable, playful, and full of physical play and affection." Yet it would still take 15 months for Jim to be allowed to have normal visits with his son.
Had he been charged with domestic violence in criminal court, where guilt must be proved beyond a reasonable doubt and the standards of due process are high, this might not have happened. But Jim's fate was decided in a very different venue: family court.
It's a court like no other—a hugely busy and rancorous place where the most personal aspects of people's lives are not only on display, but judged and reshaped in proceedings that often last no longer than 20 minutes. Appointed commissioners, rather than elected judges, make many of the most crucial decisions. And the standard of evidence (known as "preponderance of the evidence") is the lowest allowed by law.
For years, dads'-rights groups have claimed that family court overwhelmingly favors women, particularly when it comes to custody. In former times, when dads generally did far less hands-on child-rearing than moms, those claims tended to be viewed as the ranting of bitter misogynists.
But parenting roles have changed. And the "judicial system," says veteran family-law attorney Deborah Bianco, "is way behind the culture." Bianco is one of a number of mainstream family-law attorneys—representing both women and men, and often female themselves—who now say they too see a bias against men.
Rhea Rolfe, an attorney who once taught a "women and the law" class at the University of Washington, recalls sitting with a male client in a commissioner's courtroom one day. There were maybe seven or eight cases heard. "She ruled against every single man," Rolfe recalls, "and two of them were unopposed."
"In any other arena, the evidence gets you the ruling," observes attorney Maya Trujillo Ringe. "But in this particular arena, the dad has a much bigger uphill battle." So much so, she says, that she and other attorneys often joke that "if you put a skirt on the dad, same facts," he'd win primary custody. "You can overcome the bias," Ringe adds, "but it takes a lot of work and a lot of resources."
By far, though, the most damaging allegation—the one that can change everything in an instant—is domestic violence. That's why, Rolfe says, "there are attorneys who will advise a client to accuse the other party of domestic violence in order to gain an advantage."
The accusations may not constitute what the general public thinks of as domestic violence. "Frequently, it's not a big thing that you did, but the woman claims to be afraid," says Rolfe.
Yet commissioners—and what Bianco calls a "little cottage industry" of professionals used by the court to assess and treat domestic violence—tend to give those allegations credibility and see a man's denials as further proof of his guilt—the ultimate catch-22.
Rolfe calls herself "a very strong feminist." She believes domestic violence and male denial are big problems. Yet considering the way women can "use the system," she says, "It absolutely infuriates me."
"I have always seen gender bias," says Bianco, who has been practicing law for more than 20 years. "What's changed is that it's no longer gender bias against women—now it's against men."
Back in the day, she says, "the court would say to a 55-year-old homemaker who had never worked: 'You better go out and get a job.' You might have a husband earning, at that time, $50,000 or $70,000 and a wife who could earn $12,000. I remember saying to women: 'If you can only work at Walmart, you might have to change your lifestyle.' " Changing attitudes, and court rulings, led to the notion that you can't leave one party in poverty after a divorce and another in wealth.
Similarly, she says the court's view of domestic violence used to be slanted against women. "I had to have clients testify they had done nothing to provoke their husbands. If they had been unfaithful, that was viewed as justification."
Yet as the courts started to shift toward a woman's point of view, men started to ask questions about an arena in which they had traditionally been marginalized: custody. A slew of dads'-rights groups, with names like Fathers for Equal Rights and Dads America, gained steam in the '80s and '90s. Hollywood offered its glossed-over version of the issue with films like Kramer vs. Kramer and Mrs. Doubtfire. And some lawmakers took up the cause as well. In Washington, the legislature passed a bill in 2007 that shifted the balance ever so slightly. It directed courts to stop taking into account which parent had in the past taken greater child-rearing responsibility—a factor that typically works in the mom's favor.
"But bias still exists," says Carol Bailey, a family-law attorney who also works as a "guardian ad litem," retained by courts to represent the best interests of children. "If you have a capable, interested father, it's very difficult for him to get meaningful access [to his children] if he wasn't the primary parent."
Of all the custody arrangements recorded by Washington courts between July 2009 and July 2010, nearly two-thirds had children spending more time with their mother than their father. To fully understand why—and how domestic-violence accusations work so effectively against dads—you have to understand how the system works.
Commissioners preside over hearings on what is called the family-law "motions calendar." Technically, the decisions reached—on custody, child support, maintenance (what used to be called alimony), and who gets the house—are temporary. Either a trial before a regular Superior Court judge or a settlement will yield the final decisions.
But, concedes James Doerty, assistant presiding judge for King County Superior Court, "Once the tank is moving in a certain direction, it's very hard to turn it." And even if it does turn, it takes a long time. The wait for a trial currently averages 14 months. What's more, the vast majority of cases never make it that far—one lawyer estimates that "95 percent" settle beforehand—meaning that the commissioners' rulings are often first and final.
This wouldn't be a problem if hearings in family court were comprehensive. But they're not. In a single morning, a commissioner might handle as many as 14 hearings—as did Les Ponomarchuk, the lead family-law commissioner, one day last month.
Consequently, King County imposes strict rules to keep these hearings short. Each side is only allotted five minutes to speak. There are no witnesses, beyond the parties themselves, and no allowed cross-examination. There are even limits on what kind of documents a party can submit before a trial to bolster their case. At a recent hearing, Commissioner Meg Sassaman fined an attorney two hours of his opposing counsel's time, a net loss that amounted to $500, for writing too much in defense of his client.
In other words, the most precious relationships in people's lives—relationships that impact not only the adults standing before a commissioner but the unseen children used to being around both parents every day—are reconstituted according to whatever spin embittered spouses can put forward in the time it takes to walk around the block.
Some court systems treat family court more like a regular court. One lawyer who used to practice in Maryland says commissioners there held half-day trials, complete with cross-examinations. But King County Superior Court, which handles nearly 8,000 divorce cases a year and more than 17,000 requests for protection orders, has no such luxury, says Doerty. "They must be exceptionally well-funded to be able to do that."
Ponomarchuk says he recognizes that commissioners have access to limited information. "It makes it an extremely difficult situation to decide to what extent there should be limitations [on visits with children]."
"It's horrible," says Doerty, who spent five years as a commissioner before becoming a judge.
Both men say commissioners do the best they can under the circumstances. "I don't go 'If I sniff abuse, it's good enough for me,' " Ponomarchuk says. He adds that he has turned down protection-order requests.
But a number of family-law insiders say that other commissioners are not as discriminating. Some note that of the five family-law commissioners in King County—three in Seattle, two in Kent—all but Ponomarchuk are women.A few have a reputation for being particularly harsh with men. Sassaman, for instance, prompted this anonymous comment on a website called RateTheCourts.com: "I have been a family law paralegal in King County for 24 years. I have never seen anyone as obviously biased and hateful towards men as this woman." (Sassaman did not return a request for comment.)
Statistically, there's no question that commissioners tend to side with women in domestic-violence cases. In 2010, of the roughly 1,900 protection-order petitions ruled on after a hearing, commissioners granted 80 percent.
Whatever bias may exist, there's another reason for the high percentage of granted orders, explains Bianco, who sometimes serves as a "pro-tem" or substitute commissioner. "No commissioner wants to deny an order of protection, and then have [the person who claimed abuse] injured or killed. You want to be very, very cautious. And if you make a mistake on the side of protecting somebody, what's the harm?"
One November day in 2008, an engineer we'll call Richard left town on a business trip. When he returned in the late afternoon five days later, neither his wife nor 4-year-old son were home. His wife had left him a voice mail saying she was out running errands, but when they weren't back by 11 p.m., he started calling hospitals. At midnight, he called 911 and was advised to file a missing-persons report, which he did.
The next day, police found his wife and son staying at a hotel, but she had no interest in coming home. The marriage had been rocky for years.
She hired a lawyer named Jan Dyer, the same lawyer who a couple of months later would file divorce proceedings on behalf of Jim's wife.
Known as an aggressive—she says "zealous"—advocate, Dyer has on her website a picture of an Annie Oakley look-alike holding a gun pointed straight at the camera. "I get up in the morning, knowing I'm either being shot at, or I'm shooting," she tells Seattle Weekly.
Dyer calls domestic violence her "specialty," though she says many of her clients don't walk in the door thinking they've been victimized. "I try to educate," she says. Domestic violence sometimes "isn't the kind of horrific violence we all think about. It might be a shove or a head-butt." Or, she says, "when they're so close to you, you can see spit."
"You have to dig," she continues. "Most people don't want to admit that domestic violence has ever happened to them. When I identify blocking a doorway as domestic violence, they're shocked."
With Dyer in her corner, Richard's wife filed not only for a divorce but a protection order. "I feel like I have been a prisoner in my home for longer than I can really remember," she wrote in her petition.
Richard had shoved her during one argument, his wife charged, and grabbed her arm so tightly during another that it left bruises. She alleged he also assailed her with "constant criticism"—remarks like "Well, you're gaining weight and it's getting embarrassing"—and insisted that chores be done in a certain way. He even controlled the thermostat, she said.
Richard, in his response filed with the court, declared himself "shocked" by her allegations. He denied shoving his wife, and said that the arm grab, which happened in the kitchen, was really an attempt to block her from throwing a fork in his direction. A knife had already once come precariously close as she threw it past him and into the sink, according to the document.
Richard also proffered a very different account of their marital life, describing her supposed irritability, depression, and tendency to follow him around "trying to bait" him into an argument. He also portrayed himself as their son's primary caretaker. As a co-worker testified in a declaration, Richard arranged his schedule so he could pick up his son from preschool in the late afternoon. On Fridays, when there was no preschool, he didn't work at all. (His wife countered that she was the main caretaker, in part because he traveled for work regularly.)
Even given such contradictory accounts, Commissioner Lori Kay Smith granted a temporary protection order. Still, she allowed Richard to see his son, on alternative weekends and one weeknight, unsupervised.
In that sense, he had something to be grateful for, as Jim could well tell him.
For the first three months of Jim's supervised visits, he couldn't even take his son back to his apartment. He was obliged to stay at the Madison Valley offices of the Indaba Center, the social-service organization that provides supervision services—at a cost to him of $50 an hour.
Given their extremely rushed proceedings, family-law commissioners often punt to such "expert" evaluations to make recommendations that can be heard in later hearings. Smith did that in Richard's case, ordering a "risk assessment" from a counselor who specializes in domestic violence.
Richard says he welcomed the assessment. "OK, great," he says he thought. "Now I'm going to go to somebody whose job it is to ferret out the truth." He says he didn't even mind paying the $1,000-plus fee.
But when counselor Doug Bartholomew came out with his report a month later, Richard was even further in the hole. The counselor did say that he couldn't determine whether Richard had assaulted his wife. Yet Bartholomew still recommended that Richard attend a domestic-violence treatment program, as well as a class called "DV Dads."
Why? For one thing, he held out the possibility that Richard was dangerous. He attached extreme importance to the engineer's attempt to have the counselor look at a mental-health self-evaluation his wife had done. "Since submitting someone's private records against their will is so inherently antisocial, it raises the question of whether or not he's capable of similar 'stop at nothing' behavior," Bartholomew wrote.
Richard's personality and background were also suspect, according to Bartholomew. For one thing, he was successful. "The downside of success, and he's been very successful, is that we tend not to learn compassion, empathy, or insight." Richard, he wrote, "has never experienced tragedy."
Richard suffered from a "Puer complex," the condition of being an "eternal boy," in Bartholomew's estimation. The engineer was unable to describe his son in an "I-Thou manner," an apparent reference to philosopher Martin Buber's description of seeing other people as possessing distinct wants and needs. This seemed to account for Bartholomew's finding that Richard posed "some risk of further psychological abuse." As the counselor put it a year and a half later at trial, "the most conspicuous feature" of his evaluation was Richard's "indifference" to his wife's "feelings and needs."
"It was a huge blow," Richard says. "It just didn't make sense in my head."
"There's really nothing worse than being told you're an abuser," says a dad we'll call Daniel, who was for a time subject to a protection order. Then a stay-at-home parent, the order stopped him from seeing his wife, not his child. But he faced a daunting legal fight for custody, one that eventually put him $240,000 in debt, and could only be attempted because a law firm took pity on him and allowed him to pay off the money over time.
Meeting at his lawyer's office one day, he's practically sweating as he talks hesitantly about his case. He's still terrified that he might say or do something that would antagonize his ex (for that reason, both he and the other dads in this story asked that their identities not be revealed), and thus bring on new legal wrangling that could cost him his child. "I've never quite gotten back to where I was," he says.
As for Richard, he decided to live with Bartholomew's assessment and the protection orders that were subsequently renewed time after time. He says his attorney told him "Suck it up, go through the [domestic-violence treatment] program, see what happens."
It didn't go well. Enrolled in a group- therapy program at the agency now known as Wellspring Family Services, he says, "every single time you show up, you have to say what your most abusive behavior was during the past week."
"I'd have to make stuff up," he says. But that wasn't good enough. According to a form filled out by the agency, it judged him "out of compliance" for his denials of abuse, and dismissed him from the program.
Mark Adams, one of Wellspring's facilitators, says the weekly "check-ins" aren't done so much any more because other men in the program also have said they've made stuff up. But he says this weekly confessional, when used, is intended to get people thinking about even the subtlest ways they behave badly.
Adams adds that he finds it "unrealistic" to expect that the people sent to his program—already judged to be domestic- violence offenders—could "go through an entire week without saying or doing something that would come across as disrespectful."
And if people can't identify those behaviors, if they really don't see themselves as abusers, then, he says, they're not a good fit for the program. "They have perhaps more of a legal issue," he says. In other words, they need to get the "abuser" label lifted by going back to court—the very institution that, lacking adequate time and resources, looks to outside experts like him for guidance.
Dyer, the "zealous" attorney, noted Richard's dismissal from the program in her opening statement during the trial in the summer of 2010, as she did Bartholomew's "finding of domestic violence." (Though trials are extremely rare, all three men profiled in this article—Jim, Richard, and Daniel—were chosen in part because they managed to weather the wait, inconvenience, and expense of a later court date.) At stake was not only the protection order still in effect, but the custody ruling, lopsided in favor of the mom, that commissioners had accordingly granted and that had been in effect almost two years.
It was, in some ways, a highly unusual proceeding. Judge Michael Fox admonished Dyer on the record, something he said he rarely did. The judge said he felt compelled to do so because the attorney who said she held angry men accountable seemed herself to have an anger problem. Fox characterized Dyer's cross-examination of Richard as being "over the top"—characterized by "sarcasm, interrupting," and "a tone of voice that is hostile in the extreme."
Dyer, saying she couldn't understand the judge's reaction and describing herself as pained by it, asked the judge to recuse himself. He refused. She then asked to withdraw as her client's counsel, a motion Fox also turned down. "I just got an automatic right to appeal the whole case," she told her client—but, in spite of that attempt at positive spin, proceeded to sob through the next witness' testimony.
Such dramatics aside, much of the trial hinged on a fundamental question: How do you define domestic violence? Dyer called Bartholomew to the stand. After noting that he had worked in the field of domestic violence since 1982, providing both risk assessments and treatment, the counselor explained that he didn't have much use for the definition of domestic violence provided by state law.
The law, Bartholomew said, "is an extremely limiting definition in that basically you have to rape, assault, or kidnap someone, or stalk them. And that doesn't allow for addressing the bulk of domestic violence." Instead, he said he had used a "judges' manual" on the subject that is put out by the state Administrative Office of the Courts. That definition cites "a pattern of assault and coercive behaviors, including physical assaults, psychological attacks, and economic coercion."
"What the general public needs to understand is that domestic violence is more than just physical assault," says Commissioner Ponomarchuk. "It has to do with control . . . When you control the keys to the car and check [your wife's] cell phone to see if she's having an affair, that's control."
Judge Doerty offers other non-physical examples: "when you never, ever let your spouse have any money, or the wife is not allowed to go grocery shopping on her own." He allows, however, that deciding whether domestic violence has occurred can be "challenging." Even state law, considered so restrictive to Bartholomew, is ambiguous because it counts the "infliction of fear" as domestic violence, the judge explains. "It's very, very subjective. How is it possible to say 'No, you're not really afraid'?"
Judge Fox, however, evidently felt able to do so—or at least to say that the evidence did not point to a "reasonable" fear—after hearing testimony from Bartholomew, Richard, his wife, various acquaintances, and a parenting evaluator.
The engineer, opined the judge, "may have been the dominant partner in this marriage, he may lack a certain degree of introspection, he may be somewhat rigid, and he may not be as empathetic as we would all like, but there is no evidence that he has committed domestic violence as defined by state law."
Going even farther, the judge completely reversed the status quo, awarding Richard primary custody and his wife alternate weekend visits.
Explaining his decision, Fox said he had great regard for the "careful evidence-based analysis" of the parenting evaluator, which had taken more than a year. In that report, she had observed that of the two parents, Richard "appears to have a somewhat stronger, more positive, and more stable relationship" with their son. The mom "acknowledged a history of depression" and "feeling overwhelmed" that the social worker determined had impacted her relationship with the boy.
In contrast, the judge said he gave "no credence to the Bartholomew report." The assessment was rife with "bias," Fox said. The counselor had believed nothing Richard said and everything his wife said.
Bartholomew's logic was also "weak," according to the judge. Fox said he wasn't buying the counselor's notion that Richard's attempt to submit his wife's self-assessment was such a heinous act that it called into question the engineer's character.
The counselor hadn't even proofread the report, the judge noted. (At trial, it had come out that Bartholomew's dictation software had sometimes changed pronouns, and Richard's attorney observed that some of the controlling behavior Richard had ascribed to his wife seemed to appear in the report as things "he" had allegedly done.)
"In my 22 years on the bench, I have never reviewed an expert report such as this," Fox declared.
Richard subsequently filed a complaint about Bartholomew with the Department of Health, the ninth lodged against the counselor. The DOH did not sustain eight of the complaints, but is currently investigating Richard's.
Turning to Richard's case, Bartholomew claims his report was misconstrued: "First of all, I said the guy didn't do any domestic violence." No matter that those words aren't in his report, that he referred to further psychological "abuse," and that the judge and the attorneys understood the exact opposite—the counselor points to his line saying that he couldn't determine whether Richard had assaulted his wife. Although at trial Bartholomew argued that assault is not a necessary component of domestic violence, he now says that it is.
Why then did he recommend that Richard undergo domestic-violence treatment? "A lot of people really benefit from that—especially people who haven't stepped over the line," Bartholomew says. "You learn about how to handle relationships."
"The attorneys on both sides were extremely difficult," he adds by way of explaining how his report was construed as a domestic-violence finding. "Each of them took it and ran with it."
At least Richard's wife's attorney—not Dyer, but a new lawyer—is still attempting to run with it, and has filed an appeal on behalf of her client. Some of the lawyer's arguments: The judge had improperly discounted an "expert" opinion that the father had engaged in domestic violence and "failed to complete" his recommended treatment.
The appeal is pending.
Like so many dads, his role has been cast in doubt by a domestic-violence allegation. (His wife claimed he bumped her with his chest and pinned her down on the bed during an argument.) At an earlier hearing, the commissioner had consigned him to supervised visits, but allowed his mother to act as the supervisor. This wasn't too practical, since the mom lived on an island near Tacoma and he lived in Seattle. So he left his job and moved to Tacoma.
Now he and his wife are back in court, each with complaints. He charges that his wife is not allowing him the full 24 hours with his daughter the court granted him once a week. The mom, who does have the benefit of counsel, insinuates that there must be something wrong with the visits since the toddler is taking a long time to "recover" afterward, as evidenced by too-long napping.
Jeske not only gives the dad's complaint no credence, she holds it against him. "It sounds suspiciously close to using the child as a control mechanism, which is a domestic- violence [behavior]," Jeske says.
In contrast, she takes the mom's complaint so seriously that she takes away one of the dad's monthly visits until a parenting evaluator can look into the prolonged-napping situation. Not only that, she orders the out-of-work and unrepresented dad to pay $1,000 for his wife's attorney.
The dad sighs and looks down.
"It doesn't always go the way you think it might," the commissioner remarks, drawing the hearing to a close. "I'm trying to craft equity."
She doesn't explain how.
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