Money Trumps Caregiving

As I wrote for Crosscut.com, the Washington State Supreme Court recently ruled that there is no right to a state-funded attorney during divorce. (Some of the following appeared there; here’s what I’d have written if I had had more space.) I had promised my editor a breezy tone befitting a blog, but this didn’t come out breezy. More like grim. Remind me never to get divorced. Oh right, I can’t quite control that.

Brenda King couldn't afford a lawyer, but her husband, Michael King, could. No surprise: He got custody of the couple's children, even though she had provided the majority of care up to that point. The King case is typical. "The person who can afford an attorney, and a good attorney, in a custody case is much more likely to win," says Ken Saukas, founder of Divorce Attorneys for Women. And having more money itself makes a parent more attractive to a judge.

The result? Because of the wage gap between men and women—and the much wider wage gap between mothers and fathers—when a man asks for custody, the majority of the time he receives it.

Judge Charles Johnson, writing for the majority, said that although previous cases had found that “full access to the courts in a divorce action is a fundamental right,” access just meant a lack of physical barriers. Apparently because Brenda King could walk into the courtroom, even if she did so with no lawyer, she had full access to justice. Tell that to defendants in criminal cases—maybe Gideon v. Wainwright should be revisited.

Ominously, as the Northwest Women's Law Center wrote in its amicus brief supporting Brenda King's case, studies have found that men who have committed domestic violence are particularly likely to contest custody—and therefore to receive it. Brenda King claimed that her husband was abusive. (Michael King, in turn, claimed she was mentally unfit.) This made another strike against her: Ragen Rasnic, a partner at the Seattle law firm Skellenger Bender, who wrote the amicus brief, says that lawyers typically advise women not to allege abuse in their divorces, because it tends to bias judges against them.

Adding insulting injury to injury, Brenda King may have lost not only her kids but her claim to Social Security. According to court records, they had been married for approximately 10 years. Unless it was at least 10 years, she gets no Social Security benefits based on her marriage, and if she was out of the workforce while caring for those children, she wasn't accruing any Social Security benefits in her own right. The Social Security system needs reforming to give credit for caregiving.

The moral of the story? The official neutrality of custody law towards women results in discrimination and should be revisited. You wouldn’t have to write gender preferences into law. Instead, the law could give preference in custody disputes to those who have done the majority of caregiving, whatever their gender. It so happens, in our society, that’s mothers. Such a law would recognize the value of caregiving, and encourage fathers to do more of it, at least if they want control of their children.

I found one of the comments on my Crosscut piece revealing. The writer wrote that having more money was a genuine asset for parenting and it was only right that a judge consider it so. Set aside for a moment the question whether all things considered that’s really true. (Are the traits moneymakers must cultivate the same ones that make for good parenting? I wonder.) I think there’s a more interesting question: Why shouldn’t family money be treated as properly belonging to the child and therefore follow the primary caregiver? If we really care about the “best interests of the child,” give custody of the child to the person who will be the best caregiver—with past record as primary caregiver serving as strong evidence of this—and send the money with her to enable her to care best for the child, with a living standard unimpaired by the divorce.

Justice Johnson concurred in his opinion with Michael King’s claim that, like other civil proceedings, divorce is a purely “private dispute.” That reflects the prevailing view of children as private property. It’s past time to reconsider that view.