Judicial Subcommittee on Custody Meeting
October 14, 1999
By Dr. Richard Weiss
Attendees: Richard Weiss and Arthur Ignatiadis - appointees of subcommittee.
The nuts and bolts
1. The meeting lasted about 3.5 hours. Half of the leadership of the Family Law Meeting was there. The subcommittee has 30 members on it, about 2/3 showed up yesterday. The moderator and chairman was Mark Kennedy, a retired supreme court justice and son-in-law of Gov. George Wallace.
2. Fuller and McMillan were there, also about 5-6 Circuit Court Judges, various attorneys, DHR, Domestic Violence Coalition, and Dr. Guy Renfro, a Montgomery psychologist. Also, Ed Wilson (grandparents rights) and a reporter from the Huntsville Times (who sat in the back, he told me he is intending to run a series in the newspaper about these issues).
3. Arthur and I did a lot of the talking and raising of issues. As usual, we were well prepared, referenced, and seemed to spend much of the session exposing the issues of gender bias, need for joint custody, the HB-97 bill, etc. Although our arguments were sound and factual, there was as expected a lot of resistance and opposition to HB-97 and the concept of joint custody. The judges had no real basis to oppose these other than emotionally appealing to one's common sense and their own experience. They had a uniform lack of knowledge of the Alabama Joint Custody Statute (no wonder it is ignored) and even when Arthur and I READ it out loud to them, they didn't understand it. I asked the entire group who amongst them were opposed, even in principle, to the awarding of joint custody to two fit parents at the time of divorce. No one answered, most looked uncomfortable.
4. The judges and divorce attorneys are vehemently opposed to HB97 and consider it lunacy. Even Rep. McMillan now seems to be swaying and believing it is too controversial to pass. Arthur and I disagree with him about abandoning it. I indicated to the subcommittee that a newer version of HB-97 will be presented, whereby we are inserting an additional option for the 12 year old--a choice of BOTH parents (joint custody). This should defuse the arguments of the parents manipulating the child to choose one over the other. Still, the judges were finding fault with it, even if joint custody were an option.
5. The Chairman attempted to summarily dismiss the subcommittee as irrelevant stating that he believed no legislation would ever work to uniformly compel judges to declare joint custody or defer to the wishes of 12 year olds. There was nothing that could be done except to change public opinion (one judge I talked to in the hall said that there could never be any legislation to compel judges to give joint custody or allow 12 year olds to decide--the best way to have this accomplished, he said, was at the polls to elect a judge "more favorable to these positions." note: there aren't any).
6. I disagreed with Kennedy and stated that if the legislature at a minimum strengthened the Alabama Joint Custody Statute so that there would be a very strong compelling requirement (presumption) to award joint physical and legal custody to both parents (assuming fitness), the judges WOULD pay more attention and it would invariably have a positive effect. I also said that together with this if the McLendon were abolished the custody problems in Alabama would be significantly improved for many. Many of the attorneys agreed about the need to throw out McLendon.
7. The judges tried a last ditch attempt to invalidate the arguments against their custody policies by saying that there was only a "perceived" problem about gender bias and inequities or corrupt custody policies. Most all judges, they maintained, were doing a very good job and taking each case on its own merits, as they should do. If there were any problems anywhere, it was likely due to a busy docket and too many cases for too few judges and inability of the judge to get all the facts or circumstances, due to lack of time, before an order was made.
8. Rep. McMillan made a comment that in his experience there was no "perception" of a problem, there was a BIG problem. Many of his constituents and other people from all over the state were calling him and complaining about abusive situations mediated by the court and judicial corruption. He basically told the subcommittee that it was his duty and responsibility as a legislator to propose bills to be passed that would address the needs of the people and address wrongs. That he and Rep. Fuller were going to proceed and make sure this was done. He would prefer the judges work with us so that the process of getting these bills drafted and passed would be expedited and that this would be best for the people of Alabama.
9. In response, one of the judges reasoned with the others that they had best work with McMillan and the subcommittee to draft bills they 'could live with' instead of being compelled by bills they opposed.
10. As a result of these comments and Arthur and my arguments that the subcommittee was very important in working with the legislature to recommend constructive custody legislation, Kennedy created a "working subcommittee" of the subcommittee (actually a subcommittee of the subcommittee of the committee) to hammer out the finer details of custody legislation and address other topics discussed at the meeting yesterday (including joint custody, McLendon, ore tenus rule. training of family judges, move away legislation, terminology changes, etc).
11. Arthur and I signed up for the working subcommittee which should meet next month and work on proposals. The larger subcommittee on custody will meet again in January early enough to interact with the legislature to pass bills for next session. I am going to bring models of stronger joint custody statutes from other states and Arthur will provide some move away statutes, among other things. We will also bring a newer version of HB97 to incorporate the joint custody option.
12. It is very clear that the judges are indeed very biased (as we all already knew) and unwilling to relinquish any control or power over decisions in their courtroom, whatever it is, apparently even regardless of statute (they implied that except for one statute that automatically imposes life imprisonment on repeat offenders which they have to follow, no state would ever be able to legislate an order without their discretion). They are entitled to their opinions. Still, we will see how much we can accomplish in the working committee to agree on custody statutes we can all live with. As rigid as the judges were at the meeting, these representatives of the judiciary still seem to be the most open-minded (as difficult as that is to imagine). Most judges refused to participate on the subcommittee or even acknowledge a different position.
If I get meeting minutes later from Peg walker, I will be sure to forward them.
Best,
Dr. Richard C. Weiss
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