Preserving the "Legitimate Objects of Matrimony"
or, "How to 'sane'itize Divorce Law"
Iowa law permits divorce only after "the court is satisfied that the legitimate objects of matrimony have been destroyed". The law says this has to be proved in court, where the other spouse is allowed to offer rebuttal evidence that the "legitimate objects of matrimony" are not destroyed yet but granting the divorce would certainly destroy them! The law doesn't permit the court to be satisfied with a mere unsupported allegation of one spouse, that nothing is left of the marriage. But courts care so little about destroying "the legitimate objects of matrimony" that after 35 years they still haven't even gotten around to defining what they are. Maybe if we gave them a little help defining them, they would stop throwing away good marriages. The following paragraph in red is my proposed addition to Iowa divorce law.
Lobbying Notes: This bill is actually starting to move through the Iowa legislature! As of February 14, it has been assigned to a House Judiciary subcommittee for possible addition to HSB 69, a bill sponsored by the Iowa Bar Association. The committee includes State Representatives George Eichorn, Carmine Boal, and Danny Carroll. Call them at 281-3221, or email them at George.Eichorn@legis.state.ia.us, Carmine.Boal@legis.state.ia.us, and Danny.Carroll@legis.state.ia.us. HSB 69 is a long bill which the Iowa Bar Association wants enough to assign its very expensive lobbyists to getting it passed. It would create a lot of jobs for lawyers serving as guardian ad litems and mediators. If House Republicans add this definition of "legitimate objects of matrimony" to HSB 69, that will create a very interesting dilemma for the Iowa Bar Association. The IBA does not generally come down on the right side of moral issues, and I expect them to make up reasons for dumping this definition. But if God-fearing House Republicans hold firm, the IBA will have to choose between a good bill which they don't want hooked to the jobs bill they want, or nothing. (I praise God for arranging this dilemma!) I have great confidence in the three whom God has placed on this subcommittee to care more about doing the right thing for God, than the politically easy thing to please the IBA. However, once it is settled that the IBA can get its jobs bill only by turning it into a bill that will be actually beneficial, I expect the IBA to swallow its objections and apply its muscle to persuading Democrats to support it too! (Actually I lobbied for similar bills between 1980 and 1986, when Democrats controlled both chambers, and found general support; the absence of grassroots support killed it, not serious opposition from Democrats. Senator Wally Horn, who is still a state senator, was most helpful then. At that time he chaired the Senate Judiciary Committee.)
The problem: "No Fault Divorce", as enacted 35 years ago, has not been followed, either according to its legislative intent, or the plain meaning of the statute.
Bill Winkelman, of Lohrville, Iowa, was a state senator when Iowa adopted "no fault divorce" in 1970. He says lawmakers had no idea that courts would trivialize, into a recitation of empty words, their requirement that dissolution not be granted until "the court is satisfied from the evidence presented" that "the legitimate objects of matrimony have been destroyed". (598.17.)
In fact as late as 1975, even the Iowa Supreme Court expected that real evidence was necessary, not just a stipulation of both spouses, (a formal statement of facts to which both parties agree), not to mention a mere unsupported allegation of one spouse. (Quotes follow.)
And until this year, 598.7 has said "The petition [divorce papers] must be verified by the petitioner, and its allegations established by competent evidence."
But now not even a stipulation is necessary, but only a recitation, by the spouse filing for divorce, of a requirement of law rendered meaningless by the judicial routine of ignoring it. And this year, the Iowa Bar Association, wants to repeal 598.7 by passing HSB 69.
What happened? Courts never got around to thinking about what "legitimate objects of matrimony" mean. The plain meaning of the words was insufficient to inspire them to a vision of their plain meaning. So the words were treated as if they were meaningless.
Who likes the result? Not very many, but we think the only alternative is to return to "fault" divorce.
The Solution: Well, there is a third alternative: following the existing law. We don't have to "legislate family values" or anything. It has already been legislated, 35 years ago. We only need to clarify the law so it will be understood even in a divorce court. We don't have to return to "fault" divorce where spouses have to accuse each other of something awful before they are allowed to divorce. We don't need judges to blame anybody. We do need judges, however, to stop granting divorce where the evidence shows the marriage is still basically sound, and might rebound with a little encouragement. This should not be regarded as a "novel concept" or anything. It's a 35-year-old law. It should not seem like some "radical fringe" idea, to want to enforce the law.
When adults act like children, filing for divorce for no mature reason, when it would hurt the children and ruin the family finances, it would help to have a grownup on the bench encouraging the adults to accept their adult responsibilities, and reminding them of the wonderful results of adults behaving like adults.
It is a reasonable hope that many marriages would be saved even before facing court, as spouses learn what they would have to say in court to get the divorce, and are convicted by the truth.
We can clarify No Fault Divorce law by simply adding a definition of "legitimate objects of matrimony" to the list of definitions in Iowa divorce law.
Iowa Code 598.1 Definitions
7. (New paragraph) "legitimate objects of matrimony" means the legitimate purposes for continuing the marriage, which may include, but is not limited to: serving the best interests of any children, preserving the family finances, enabling the family's pool of mutually beneficial talents to enrich the family, creating a family heritage, and fulfilling commitments and responsibilities. The "legitimate objects of matrimony" are considered "destroyed" only when the preponderance of competent evidence shows that these purposes, taken as a whole, are constricted by the marriage, would be furthered by dissolution, and that this condition is irreversible; or that the marriage commitments have been nullified by circumstances or actions.
("The moral order and peace of society" is another Legitimate Object of Matrimony, according to a1975 Supreme Court decision! Should we add it?)
Discussion of wording, and expected results of passage. The intent of this clarification is that if the petitioner (the applicant for the divorce) alleges that the legitimate objects of matrimony have been destroyed, the respondent ought to be allowed to present contrary evidence that the marriage is still basically sound, and that it is premature to throw it away.
For example, a respondent who wants to save the marriage should be able to show evidence that the "best interests of the children" have not yet been harmed by the marriage, but they would certainly be harmed by the divorce. The respondent could then, at the least, request more time and more counseling, or at the most, request that the divorce petition be dismissed. In practice, many marriages would be saved before they reach that point, as petitioners realize they would have to lie, to allege their marriage is bad enough to justify taking away their children's other parent.
The phrase "preponderance of...evidence" makes it clear to a judge that the respondent has a right to present rebuttal testimony, since there cannot be a "preponderance" of one thing over another thing, if there is only the one thing.
The use of the word "competent evidence", a phrase borrowed from Iowa Code 598.7, makes it clear that granting a divorce requires evidence correlated enough with reality to assure the judge the problem really is serious and irreversible, not just some alleged generalization such as the repetition of a verbal formula, which Iowa Code 598.17 has been turned into.
By the way, the phrase "competent evidence" does not make the burden of evidence any heavier than Iowa lawmakers meant it to be. It's already in Iowa Code 598.7, which requires "competent evidence" in the divorce petition, the paper application that is first filed before it even goes to court! That's right, for 35 years the law has required divorce attorneys to not merely "Allege that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved", [the requirement of Iowa Code 598.5(7)], but also "The petition must be verified by the petitioner, and its allegations established by competent evidence." [Iowa Code 598.7.] Divorce attorneys completely and routinely ignore this requirement, and insert only the allegation, without any evidence, in divorce petitions. Which explains why the Iowa Bar Association is asking the legislature, this year, to repeal it, by passing HSB 69.
The proposed clarification would alert divorce attorneys to the seriousness of the phrase "legitimate objects of matrimony", and they would start obeying 598.7, which means they would have to start educating petitioners, in their very first meeting, about what they would have to say and prove, at which news many petitioners with selfish or immature motives would proceed no farther.
And yet if the desire for divorce is mutual, divorce will still be automatic. With this wording, if the petitioner alleges a few specifics which the respondent does not counter, that will still be enough for a divorce, which will please many. It will preserve the spirit of the existing law, because the allegations would still not have to allege that one spouse is more at fault than another. In fact no one would have to allege any "fault" in anyone.
Notice that "sexual relations" has not even been mentioned as one of the "legitimate objects of matrimony", even though many behave as if that were all marriage is! If someone wants to bring it up, it can fall under "is not limited to". In this manner, a spouse may still present evidence that the legitimate objects of matrimony are still strong, because sexual relations continue! The fact is sexual relations often continue beyond divorce! Weird but true. It might be too confusing an issue for a judge, however. A judge might decide divorce will increase sexual opportunities! Even though surveys show the opposite is generally true.
All these benefits of this legislation may perhaps benefit Iowans by the mere discussion of this bill, even before it is passed, as divorce attorneys, judges, and respondents who still love their spouses learn, from the publicity surrounding this discussion, that these requirements are already in the law, and have been, for 35 years!
Perhaps this knowledge will encourage a few particularly committed, loving spouses to appeal to the requirements of the law to save their marriages, and the Supreme Court will create precedents affirming existing law, even before the law proposed here is passed.
However, actual passage of this bill will more firmly establish the original intent of No Fault Divorce.
Contact: Dave Leach, 137 E. Leach, Dsm IA 50315, 244-3711w, 256-0637h, Leach@Saltshaker.US.
The 1975 case:
Craft v. Craft, 226 N.W.2d Iowa 1975 at 6, 9, which has never been overturned or challenged, says "The statutory requirement for dissolution of marriage, that marriage breakdown be established by competent evidence, is mandatory, and may not be satisfied by parties' stipulation [a written mutual agreement] to that effect." In other words, even when both parties agree in writing that the marriage has hopelessly broken down, the court can't just automatically give them a divorce without additional evidence of the breakdown!
Craft continues: "Respondent's first assignment [the first argument of the response] asserts a failure to comply with 598.7 and 598.8, The Code. 598.7 provides: 'The petition must be verified by the petitioner and its allegations established by competent evidence.' Section 598.8 provides: 'Hearings for dissolution of marriage shall be held in open court upon the oral testimony of witnesses...
"'Both parties appeared at trial and testified. Neither testified as to the grounds for dissolution...
"'The provisions of 598.7 and 598.8 are mandatory. The parties are not entitled to dissolution merely by stipulating for it. The rule is of ancient origin and has obtained in Iowa from earliest times. In Lyster v. Lyster, 1 Iowa 130 (1855) we considered a divorce sought on a ground (authorized by the 1851 Code) that the parties "cannot live together in peace and happiness." We held:
"'***The law requires that the court shall be satisfied; that it "shall be made fully apparent to the court, that the parties cannot live together in peace and happiness", and not that the parties shall be satisfied. It is not alone the immediate parties to this proceeding that are affected, but in most instances, the care and disposition of CHILDREN AND PROPERTY; and, in all cases, the proper MORAL ORDER AND PEACE OF SOCIETY will and must arise.***' 1 Iowa at page 131
"The principle and the reasons for it persist. The legitimate interests of the State in marriage termination were recently recognized in Sosna v. Iowa, ...95 S.Ct. 553, 42 L.Ed.2d 532 (decided January 14, 1975).Respondent is right in arguing the requirements of 598.7 and 598.8 cannot be obviated [satisfied] by stipulation."
Unfortunately the crucial truths of this case were trivialized by accepting a petitioner's oral statement about the marriage breakdown, unsupported by any evidence, and with no rebuttal allowed the respondent, as "satisfactory evidence". But perhaps even that tragic failure is understandable, in light of the confusion in the wake of the lack of any definition of "legitimate objects of matrimony".
("The moral order and peace of society" is another Legitimate Object of Matrimony, according to a1975 Supreme Court decision! Should we add it? Next page: discussion of the wording, and of expected results. Next sheet: excerpts from the 1975 case, supporters of this bill.)
Contact: Dave Leach, 137 E. Leach, Dsm IA 50315, 244-3711w, 256-0637h, Leach@Saltshaker.US.
How this could be amended to HSB 69,
& why HSB 69 should not be passed without this
An alternative to inserting this definition of "legitimate objects of matrimony" in 598.1, with the other definitions of divorce law terminology, is to insert it in 598.5, as shown below. The page numbering is that of House Study Bill (HSB) 69, (sponsored by the Iowa Bar association), to which the House Judiciary Committee may consider adding this definition. The purple is what the law already says; the red is what we propose adding.
HSB 69, page 13, line 11: (The petition for a divorce, which is the first paper which the unsuspecting spouse has served upon him informing him that he is going to be divorced, must:) 7. g. Allege that there has been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony, including but not limited to serving the best interests of any children, preserving the family finances, enabling the family's pool of mutually beneficial talents to enrich the family, creating a family heritage, and fulfilling commitments and responsibilities, have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.
(It is ironic that paragraph j, which is already in current law, requires the "petitioner" (the one filing for divorce) to "State whether the appointment of a conciliator....may preserve the marriage." It is ironic because the legislature continually tries to encourage the use of marriage counselors as if they expect marriage counselors have some capacity to save marriages, and yet one argument you will hear against enabling judges to deny divorce petitions is the assumption that judges have NO capacity to EVER save ANY marriage, regardless of circumstances! As if judges have infinitely LESS capacity than marriage counselors to positively impact marriages!)
HSB 69, page 13, line 33: (In the original petition for a divorce,) 3. The allegations of the petition shall be established by competent evidence. The "legitimate objects of matrimony" are considered "destroyed" only when the preponderance of competent evidence shows that these purposes, taken as a whole, are constricted by the marriage, would be furthered by dissolution, and that this condition is irreversible; or that the marriage commitments have been nullified by circumstances or actions.
Add 598.7 ...If the Court is not so satisfied, from the evidence presented, the Court may, upon learning the issues that brought the petitioner to the Court, order mediation or binding arbitration over those issues, as appropriate, in addition to any advice offered by the Court.
*The law requires that the court shall be satisfied; that it "shall be made fully apparent to the court, that the parties cannot live together in peace and happiness",
HSB 69, page 15, line 26: (The Court may make a "Temporary Order" before the final divorce decree, in which:) The court may on its own 15 27 motion and shall upon application of either party or an attorney or guardian ad litem appointed under section 598.12 determine the temporary custody of any minor child whose welfare may be affected by the filing of the petition for dissolution, and represent the child's input in whether the legitimate objects of matrimony have been destroyed.
The blue language in this paragraph is not already in Iowa law; the bar association wants to add Guardian Ad Litems to the divorce process.
Why this bill should not pass without this amendment. HSB 69 would add "guardian ad litems" to the divorce process, as distinct from "an attorney to represent the interests of the minor child", which is already an option for a divorce judge in 598.12. Usually the state-appointed attorney "representing" the child, and the child's "guardian ad litem", are the same person. Indeed HSB 69's proposed new 598.12 acknowledges that "the same person may serve both as the child's legal counsel and as guardian ad litem." Then what is proposed that is new? "However, the court may appoint a separate guardian ad litem, if the same person cannot properly represent the legal interests of the child as legal counsel and also represent the best interests of the child as guardian ad litem...." Now THAT'S an interesting confession -- that the representation of the attorney appointed for the child may conflict with the child's best interests!? "No", you say, "that couldn't be what they mean." Then what? Let's read on for clues: "...or a separate guardian ad litem is required to fulfill the requirements of subsection 2" (that the guardian ad litem conduct "interviews with the child" prior to hearings! So the assumption is that the lawyer, who is supposed to at least meet with his client, one would think, won't have time, so someone else should be hired to do it, whose bill will then be added to the parents' bill along with that of the "child's" attorney!
So then what, will the attorney have time to meet with the guardian ad litem?
I appreciate the veiled honesty of attorneys whose consciences trouble them that they feel they have no time to meet with the child-clients they are paid to represent. But maybe the solution would be, instead of expanding the likelihood of such attorneys being appointed in divorce cases by writing a whole new section of law legitimizing them, to end the fiction that a third lawyer, who knows neither the parents nor the children, can offer the court additional wisdom unavailable from the two parents. Maybe we should repeal, from 598.12, any suggestion to the judge of appointing such lawyers. Or, if the legislature is determined to expand this injection of strangers into families, the next best solution might be to give the new bureaucrat a job to do that will actually help: let him actually urge the judge to consider the "best interests of the children", which Iowa 598.1 defines as "the maximum continuing contact of both parents with the child"; in other words, marriage!
The existing Iowa Code 598.12 offers the suggestion to divorce judges that they "may" appoint a lawyer for the child, and gives the lawyer power to "make independent investigations", but does not mention actually meeting the child! HSB 69 would give guardian ad litems "duties" including actually meeting the children, parents, extended family, etc. Which would better enable the lawyer to know what a child wants, than by neither meeting the child nor meeting anyone who has met the child, I suppose, but HSB 69 would actually institutionalize the habit of a lawyer not personally meeting his client!
The problem with guardian ad litems not even communicating with the children they supposedly represent is not a new problem, even though the bill language, taken from 232.2(22)b, lists that as part of their duties. The existing law regarding lawyers appointed to represent children, 598.12, does not even do that! It gives attorneys the power to "make independent investigations", but even that is not mandatory, and whether it is even funded is pretty arguable.
The tiny budgets of guardian ad litems/lawyers are a problem. The appointed attorneys are motivated to keep their hearings as short as possible.
A third problem is the pressure on them not to be "too litigious" in defense of their clients lest they be removed from the list of available guardian ad litems.
Charges like these were authoritatively documented in an amazing report published February 6, 1992: the San Diego County Grand Jury's investigation of their San Diego County Child Protection Programs and Foster Care. A copy was transmitted to our state law library. It inspired the Iowa Republican State Convention on June 13 of 1992 to adopt a plank calling for a similar Grand Jury investigation of our own DHS, an event which so far has not happened. Until it does, we cannot say authoritatively how endemic these problems are, in Iowa 13 years later, as it is alleged by former elementary school principal John Harvey of VOCAL (Victims Of Child Abuse Laws), the impetus behind that 1992 plank and host of a VOCAL cable access program in Des Moines for 10 years. But in the absence of clear evidence that these problems do not still exist, at least we can be careful about expanding these potential problems. (By the way, the Grand Jury's formal recommendation #92/91 was "Encourage the participation and attendance of VOCAL...leadership in the Juvenile Justice Commission....")
The San Diego Grand Jury's 56 page report said of guardian ad litems: "Testimony was consistent indicating that there is considerable range of ability among the attorneys who represent minors. Some of them are excellent; others are marginal. Court appointed panel attorneys are seriously underpaid. Panel attorneys who do independent investigations are scarce.
"In a seriously contested case, the Jury discovered that the attorney for the minors had not met her two young clients in the two years the case had been in Juvenile Court. The Jury found rare instances in which the minor's attorney had interviewed the parents and/or extended family.
"Ultimately, a family is billed for minor's counsel despite the fact that they have no input in the choice of this attorney. The approved list of panel attorneys is perceived as subject to political pressure. Panel attorneys told the Jury that if they are representing the child and oppose DSS, they fear removal from the list. One panel attorney, after 'challenging' the judge scheduled to hear a case, was immediately removed as the minor's counsel. Another Family Court minor['s counsel reported the same experience with the same judge. Panel attorneys representing the parents are fearful of appearing too litigious on behalf of their clients."
Despite these findings, the Jury was "unalterably opposed" to any talk of reducing the role of guardian ad litems, because "DSS and the Child cannot be seen as having the same interests." In other words, if the parent sees that the judge views the dispute as between the interests of the parent (represented by the parents' attorney) and the interests of the child (represented by the DHS), parents, who figure they understand the child's best interests better than anyone else in the room, are going to figure out this game is rigged against their whole family! Better to throw another attorney in there to bolster the myth of objectivity, never mind he serves at the pleasure of "the system" and seldom has more than casual meetings with the children.
The system would be more honest if it stopped regarding either the DHS or guardian ad litems as better representatives of the child's interest than the parents! The bureaucrats should be stripped of all such pretense, and all parties should simply work to establish just what are the child's best interests.
The fourth problem is more important than the first three: there is no reason to assume an additional bureaucrat will add to the wisdom already available from both parents and the judge. The very presence of a guardian ad litem, or lawyer "for the child", is a statement by the legislature that the judgment of those who love and know the child the most -- the parents, the authorities designated by God -- is less trustworthy than that of a bureaucrat who is a stranger to the child. What can justify the assumption that an additional expensive bureaucrat who barely knows the child will be any more knowledgeable about, or sympathetic to, the child's needs, than the prosecutor or judge?
But if lawmakers feel that, politically, they cannot oppose the expansion of guardian ad litems into divorce law, much less repeal their institution altogether where parents are present, maybe they are willing to make guardian ad litems do, in divorce cases, what all children want most, regardless of how bad the parents think the marriage is: petition the court to put the divorce on hold! If guardian ad litems are to be added to divorce law, in other words, let also the Legitimate Objects of Matrimony finally be defined, and let evidence of their condition be a required focus of guardian ad litems!
After all, Iowa law already says, in effect, that frankly, divorce is not in the best interests of the child! It defines "best interests of the child" as the "maximum continuing contact of the child with both parents." (598.1(6) Let the Guardian Ad Litem petition the court for THAT.
The effect of this would be that even when both parents say they want the divorce, the guardian ad litem, representing the child, could present evidence that the marriage isn't that bad and the divorce should be put on hold! Upon their reflection, the Iowa Bar Association should actually see this as being very much in their interest, because they will expect two or three times as much work from divorce cases, on the assumption that frustrated petitioners will have to come into divorce court two or three times before the court will finally be "satisfied from the evidence presented" that the marriage is over!
Although I expect the IBA, and many God-opposing lawmakers, to have that pessimistic expectation of the effect of making divorce less automatic, I do not share it! I expect the opposite: that many spouses who check with divorce lawyers and learn about the evidence that they must now present, will realize that they would have to lie to say their reasons for wanting the divorce are more important than the effect the divorce would have on their children, and would turn again to their problems with a more adult approach.
However, I praise God that those who oppose divorce reform because they minimize the sanctity of Marriage, are the very ones who will believe this bill will create more work for their brother attorneys because no efforts to save marriages can ever work! (Other than involving marriage counselors and mediators.) God knows what He is doing, in bringing these political dynamics together in this way!
The ONLY useful role for guardian ad litems is to represent the child's interest in preserving the marriage, when both parents are ready to abandon it. In every other matter, Guardian ad litems/lawyers are much less helpful to the court in understanding the child's needs than the child's parents, and they cost tons more, further destroying the family finances. Not only is the cost of the guardian ad litem added to the court costs, but both parents' lawyers' fees are driven up by having to oppose the guardian ad litem. You say, but why must they oppose the guardian ad litem? Well, if the parents are in agreement with the guardian ad litem, then what need does the guardian ad litem serve that the parents do not already?
In child abuse cases the problem is even worse. Child abuse hearings are made a sham by having two state-paid attorneys against the parent: the prosecutor, with virtually unlimited funds, and the guardian ad litem, with too small a budget to actually pay for time to meet the child, but not too small to give the lawyer confidence that he knows what is best for the child. Then there is the parent, selling his house to buy an attorney only long enough for the first round of hearings, after which, the family estate gone, the children are taken too.)
Please, no more attorneys for children who don't want them
HSB 69 takes its language about guardian ad litems from 232.2(22)a. I have proposed the following amendment there, and now propose amending HSB 69: "Guardian ad litem" means a person appointed by the court to represent the interests of a child who has asked a judge for representation, and who is mature enough to participate in any judicial proceeding to which the child is a party, ..... Before appointing a guardian ad litem, the judge shall be certain the child fully understands four options:
(1) court-appointed counsel in which an attorney representing the child is paid by the court and selected by the court, although the court will approve any attorney selected by the child and will not approve any attorney which the child rejects;
(2) parent-retained counsel in which an attorney representing the child is paid for and selected by the parents;
(3) Pro-se defense, in which the child is permitted at the counsel table and may participate directly in the trial without legal representation, with or without the whispered assistance of an attorney, paralegal, or friend; or
(4) no separate counsel, where the child is a passive party to the case, the only active parties to the case being the parents and the state. But the parents may choose court-appointed counsel which the parents select but for which the court pays, so that the parents will have like opportunity with the DHS to present evidence on behalf of the child.
b. The budget provided court-appointed counsel, for either the child or parents, shall provide up to the number of hours used by the attorney for the DHS. The funds necessary, which are not available from other sources, shall come from the DHS budget.
(The following explanation was written for application of this language to juvenile law, but it applies very well to its need in Chapter 598, if guardian ad litems are going to be moved there.)
Explanation: Regarding the elimination of "guardian ad litems" for babies: The Child Abuse Investigator claims to represent the interests of a baby. The parents also claim to represent the baby's best interests. Through their interaction the judge may have some hope of learning the truth. So what purpose is served by hiring a third attorney, supposedly to represent the baby, as if neither the DHS nor the parents are there for that purpose? The baby's attorney knows less about the baby than the DHS, way less than the parents, and never bothers to even meet the baby, yet the baby's attorney's opinion is given perhaps more weight than the DHS attorney's, and the parents', together! Weird, and wrong.
The consequence of this strange arrangement is that the parents, who can barely afford one attorney for even a few of the many expensive proceedings, are overwhelmed by having two attorneys opposing them at every single one of the hearings.
Of course, this cannot be the intended purpose of the DHS for enacting this law, since the DHS would never deliberately do anything unfair. However, even though it is only accidentally unfair, it is still unfair, and unfair to the child by overwhelming the voice of the parents who, after all, know the child better than the DHS and the "guardian ad litem" put together.
By the way, the "guardian ad litem" is paid out of the County Attorney's budget; the same office which provides attorneys for the DHS! Thus the County Attorneys, as they go about representing the DHS, have a lot to say about which private attorneys ought to be hired as "guardian ad litems", and how fat their budgets ought to be. Pretty handy arrangement, to control the budget of the "other" attorney as insurance against the "other" attorney thinking about opposing you. (If the County Attorney doesn't cooperate with the DHS to its satisfaction, the DHS can turn to the state Attorney General's office for representation, in which case the budget for the Guardian Ad Litem still comes from the County Attorney's office.)
Would you like an attorney representing you in court whom you have never met? Yet the paragraphs following these, in the existing law, point out that is exactly the case unless "the child's age is appropriate for the interview". How can they claim to have the foggiest notion of the best interests of a child they have never met? Notice also the existing law leaves it to the discretion of the attorney to decide whether the child is old enough to be worth interviewing, which may explain why quite mature children are often put through the charade of being "represented" by a perfect stranger working to tear them away from the parents they love.
To pretend there is a third party, who can represent what the child really wants better than the parents or the DHS, (other than the child himself if he is mature enough), is a poorly disguised excuse for stacking the deck against the parents. $50,000 is a typical legal bill for any parent willing to oppose the DHS, so many parents face the gauntlet with no attorney. Or worse, with an attorney with too small a budget to be effective, who expects to lose anyway, and therefore who is motivated to get it done as quickly as possible. Opposed to the parent are not just one attorney with an unlimited budget, for the DHS, but another attorney claiming to "represent" the child he has never met, who barely knows the parents either but who is real chummy with the judge and DHS folk!
The Guardian Ad Litem's budget is currently $320 in Polk County. That assumes he will do 8 hours of work, at $40 an hour. $40 an hour may be good wages for a hamburger flipper, but I don't think any attorney charges that little to the general public. 8 hours of work might be about right if the parent doesn't resist anything the DHS does, so that there are few hearings, and doesn't argue at any of the hearings, so that the hearings are short and don't require any preparation. Then, perhaps, a guardian ad litem might make money, if he has several such cases going at the same time. A guardian ad litem can request more pay for a particularly complicated case, but he is not likely to get it.
Parents overwhelmed at hearings by not one but two aggressive attorneys, when the parent can't afford one, and one of the hostile attorneys claims to represent the child he has never met, should be sensitive to these realities, and sympathetic with guardian ad litems. It's nothing personal, when they act hostile, seemingly just because you even showed up. It's not that they dislike you or anything. They're just nervously watching the clock.
Put yourself in the place of the "guardian ad litem". You have never met the child. You barely know the parents. What you know of the parents mostly comes from accusations against them in the record. Even if you had unlimited access to the parents to get their side of the story, your job is not to represent them. Meanwhile you have worked with the DHS attorney, the juvenile court judge, and the DHS staff, for years. You know their birthdays, their hobbies, the football teams they love, and their kids' names. You do lunch with some of them, and with all of them you at least have a working relationship. So then here you are in court, amidst all your friends, and in come the parents. The worst-dressed people of the whole group; no thousand-dollar duds like the rest of you can afford. Some don't even try to dress up. Or, more accurately, "dressing up" in their world doesn't call for the same styles as in yours. And what terrible accusations! Some accusations are so terrible that it almost becomes irrelevant whether or not they are true!
Besides that, you enjoy getting paid for your work. You like being able to turn in your hours on a job, and getting paid proportionately. You don't like getting hundreds of dollars less for a case than your hours on it deserve, and not finding out until you have put in the hours. It puts you in a real bad mood. So you are inclined to please the boys who make out your check. Even if they are in the same office with the boys representing one of "the other sides" in your case.
Tell me honestly: which side would YOU be inclined to favor?
Ask any parent who has ever opposed the DHS in court, whether this is not an accurate picture of the terror they faced!
How is justice served by forcing a small child to have an attorney not of his own choosing?
Faretta v. Brown, 422 U.S. 806, 820-821, says "The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant ?? not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists. ...An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense."
The possibility that an unwanted attorney may have a different agenda than the child is exactly what many critics of the Child Abuse Industry have alleged is what happens. Among those critics is an entire Grand Jury, in San Diego, which investigated its DHS in 1992. (See the "Families In Crisis Report #2, a Report by the 1991-1992 San Diego County Grand Jury, Feb 6, 1992".)
It said, "In a seriously contested case, the Jury discovered that the attorney for the minors had not met her two young clients in the two years the case had been in Juvenile Court. The Jury found rare instances in which the minor's attorney had interviewed the parents and/or extended family.
"Ultimately, a family is billed for minor's counsel despite the fact that they have no input in the choice of this attorney. The approved list of panel attorneys is perceived as subject to political pressure. Panel attorneys told the Jury that if they are representing the child and oppose DSS, they fear removal from the list. One panel attorney, after 'challenging' the judge scheduled to hear a case, was immediately removed as the minor's counsel. PANEL ATTORNEYS REPRESENTING THE PARENTS ARE FEARFUL OF APPEARING TOO LITIGIOUS ON BEHALF OF THEIR CLIENTS."
That San Diego Grand Jury report became the impetus for a plank in the 1992 Iowa state Republican platform that called for a Grand Jury investigation of the Iowa DHS.
Regarding court appointed attorneys with tiny budgets: The public has no idea that court appointed attorneys have a miniscule budget compared with prosecutors! Which explains why court appointed attorneys push so hard for 1-hour plea bargains: That's about all the budget they have!
"But how can taxpayers afford attorneys for the accused?" you wonder.
Remember, our proposal is to eliminate the useless attorney in cases where the child is too young to be meaningfully represented. That budget would be available for court appointed attorneys for parents.
In many cases our proposal would result in considerable savings. The DHS would not push so hard in cases where they have no real case but just use attorneys with unlimited budgets like bludgeons to expand DHS jurisdiction over parents too poor to fight back.
But even if it would cause bigger budgets, our tolerance of inaccuracy can stretch only so far before we must ask, "if we cannot afford any greater accuracy than this, should we get out of the accuracy business?" Our goal is supposed to be "the best interests of the children". When the most loving and nonabusive of parents are effectively shut out of the legal process charged with determining those best interests, which are then left to be determined by relative strangers to the child, we cannot reach our goal.
Regarding a child representing himself pro se: ("pro se" means without a lawyer.) The general public has no idea how "pro se" defense works. But the provisions spelled out in our proposal are the way judges treat parents who defend themselves. A pro se defendant is allowed to have someone help him during trial, but the helper is not allowed to speak out loud to the judge or anyone else in the room. Which is a great hardship for the parent, when technical issues arise which the parent doesn't understand but the assistant does, and the parent must deal with them, following whispered instructions about things he cannot understand. In rare occasions an attorney is willing to offer this whispered assistance. But even then, the attorney is not allowed to speak out loud in the court room - unless the parent agrees to let the attorney speak for him all the time so that the parent may never again speak himself!
Rules like this do not originate in ancient law or custom, but are historically recent efforts to discourage people from representing themselves. One justification for not letting both the party to the case speak to the court, and the "assistant" when the party needs it, is that it would be too "confusing". Believe it or not, this is what they actually say. As if these keen sharp minds so high above those of commoners, cannot carry on a discussion with two people at the same time. Even though they love having two attorneys opposed to the parents, both claiming to represent the baby.
A more realistic explanation of the motives behind it is the money to be made by monopoly. Currently, Bar Associations enjoy a perfect nationwide monopoly in speaking for defendants on trial. Winning in court is as important to most defendants as fighting cancer, so defendants are willing to pay dearly for help, if dearly expensive help is all that is available. If defendants were allowed to bring in articulate, knowledgeable friends who could speak for them only when they got stuck on technical court jargon, the market for high price lawyers would drop, and hundreds of thousands of lawyers would not be able to pay off their college loans. Furthermore, the market would drop for law school tuitions. Without an absolute monopoly that silences everyone who has not graduated from a high price law school, law schools would have far less demand and could charge far less. With the salaries of lawyers dropping, the salaries of judges would drop too. But worse than the loss of money would be the loss of prestige. Non-lawyers would be found who are more successful than lawyers. With lawyers demystified, people would look at judges as not necessarily having more exalted intelligence, by virtue of their law degrees, than anyone else. Things might even revert to conditions a century ago, when Iowa candidates ran for 4-year terms as judges, and no one had to have a law degree to be a candidate. It was as bad as in Bible times, when judges were selected because they were "known" and were leaders among the people. Deuteronomy 1:15.
When our 6th Amendment Right to Counsel (attorney) was drafted, back in about 1791, these were not the rules! Then several categories of "attorneys" were available. Yes, back then, they did have lawyers who had graduated from 7-year law schools in England. But they were only a minority of the lawyer population. Those trained stateside usually got their training as apprentices. Basically their apprenticeship consisted of serving as human copy machines for practicing lawyers, in return for which they would get access to the lawyer's library, which might consist of a few dozen law books. Then there were those who "learned the ropes" by working in a courtroom and just watching, until they felt confident enough to hang out their shingle. Then there were the "private attorneys", meaning people who made themselves available to help just for an occasional case. Then there were just friends; or a mother, or brother. All of them had the same freedom to speak on behalf of the accused, while the accused had equal freedom to participate, orally, in his own defense. This was the sort of variety of options for "counsel" to which the 6th Amendment says we should have the right. This began changing about 100 years ago, as Bar Associations gained power and began excluding attorneys from courtrooms who had not graduated from 7-year law schools. (4 years undergraduate + 3 years in law school.)
Our proposal would subject willing children to these humiliations. However, we don't anticipate the judge would be as unreasonable with children as with adults. That would make the judge seem like an ogre, to impose rules on children which make no sense even to adults, when supposedly the whole show is being played for the child's own best interests. We anticipate the judge would give latitude to the children, though he would scream about having to do so as soon as the child is out of his hearing!
We anticipate this would be a healthy experience for courtrooms. Both by giving judges the experience of treating pro se defendants respectfully, and by giving children the experience of meaningful participation in a courtroom, which could produce amazing results in their adulthood.
Funds for state-paid attorneys. HSB 69 would also affect budgets for "public defenders", or lawyers provided by the court to defend "indigents", or people too poor to hire their own attorneys. Page 41, line 3: "815.11 APPROPRIATIONS FOR INDIGENT DEFENSE. Costs incurred under chapter 229A, 600A, 665, or 822, or section 232.141, subsection 3, paragraph "c", or section 598.23A, 814.9, 814.10, 814.11, 815.4, 815.7, 815.10, or on behalf of an indigent shall be paid from funds appropriated by the general assembly to the office of the state public defender in the department of inspections and appeals for those purposes. Costs incurred representing an indigent defendant in a contempt action, or representing an indigent juvenile in a juvenile court proceeding under chapter 600, are also payable from these funds. However, costs incurred in any administrative proceeding or in any other proceeding under chapter 598, 600, 600A, 633, or 915 or other provisions of the Code or administrative rules are not payable from these funds. The cost of indigent defense beyond the amount appropriated into these funds, necessary to enable the public defender in each case to work at least 3/4 the hours worked by the prosecutor, or by the state-employed attorneys opposed to the non-state parties to the case such as parents in civil cases, shall be provided out of the budget of the prosecutor or by the said state-employed attorneys.
The problem with indigent defense is that these attorneys have an indigent budget. I don't know what it is now, but 15 years ago it was $160 to defend a simple misdemeanor in Polk County! The lawyer could apply to the judge on the case for more, but it was always a gamble; for example if the lawyer does too good a job and reaches a result the judge doesn't like, the judge might decide not to pay him. $160 is just enough for a plea bargain, which explains why we have so many plea bargains! SOLUTION: do something in the law to link the public defender's salary to the hours put in by the prosecutor! Don't appropriate enough for the prosecutor to put 300 hours on a case, but only enough for the public defender to work, literally, 3 hours! That is no justice!
Letters to Senator Charles Grassley and former governor Robert Ray
(As of February 16, 2004, I have not received an answer. I mailed letters to them February 8. I need to follow up now. Robert Ray's current address is 114 SW 51st St, Des Moines Iowa 50312.)
I wonder if you remember the passage of No Fault Divorce, in 1970, the way Bill Winkelman does (of Lohrville, Iowa) who was State Senator at the time. He says no one imagined it would turn into an automatic divorce given to any spouse who asks for it, regardless of the evidence, circumstances, best interests of the children, or anything else. He says he, and everyone else on Capitol Hill, expected courts to take seriously the legislature's evidence requirement in "no fault divorce" -- that courts be "satisfied from the evidence presented" that there really is no hope for the marriage, before allowing the divorce. No one expected judges to trivialize the requirement into a meaningless recitation of the requirement, made meaningless by court refusal to even allow rebuttal evidence.
Do you remember it that way?
Do you still think, as Bill does, that the legislature was not naive when it thought judges have some capacity to save a few salvageable marriages which they perceive are petitioned over simple misunderstandings, immaturity, selfishness, or other wrong reasons? Do you agree that if we can regard marriage counselors as having some capacity to save marriages, we should hope our judges are at least as qualified as marriage counselors, and are capable of working in cooperation with them?
I don't suppose you do much lobbying for state issues any more, but if you agree with Bill and me, a letter from you, not necessarily in the form of an official endorsement of the enclosed language (although that would be great too) but just in the form of a response to a constituent, would be very helpful. I would use it to encourage a few young Republican state legislators who think automatic divorce given when either spouse asks has been with us since the world began, and no one of any intelligence has ever thought any alternative would work.
In Jesus' Name (Col 3:17)
This web site is part of Uncle Ed.'s search for truth. God didn't make any man able to find the truth by himself. Proverbs 15:22 says only in a "multitude of counsellors" are purposes established. And counsel can come from anybody: 2 Chronicles 35:20-24 says God can speak even through your generation's representative of Antichrist! (Isaiah 30 for perspective.)
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