Spokane County Superior Court Judge Paul A. Bastine's decision in Spokane denying a divorce during pregnancy angers women's advocates and spurs a new bill
Divorce ruling provokes outrage
A judge's decision in Spokane denying a divorce during pregnancy angers women's advocates and spurs a new bill
Thursday, January 20, 2005
ASHBEL S. GREEN
Ending an unhappy marriage can be as easy as spelling "D-I-V-O-R-C-E."
But not in Spokane.
Not if the wife is "P-R-E-G-N-A-N-T."
Shawnna J. Hughes, 27, was headed for a routine divorce late last year from her husband, Carlos, who had spent time in jail for beating her.
The fact that she got pregnant during the divorce proceedings seemed inconsequential -- her husband wasn't the father.
But Spokane County Superior Court Judge Paul A. Bastine disagreed, saying Shawnna Hughes was ignoring the right of her child not to be born out of wedlock.
"The paramount right of the state and the obligation of the court, and in fact, probably the obligation of the parent as well, is to protect the legitimacy, the appropriateness of the child's relationship to his or her parents," Bastine said during a hearing in November.
He concluded that "not only is it the policy of this court, it is the policy of the state that you cannot dissolve a marriage when one of the parties is pregnant. Now, you won't find a statute with regard to that. But it is implicit in everything we have in the case law and the statutory law."
Shawnna Hughes appealed the ruling, but the state Court of Appeals has not indicated whether it will resolve the dispute before her March due date.
Bastine's decision outraged women's advocates, who said it smacked of sexism. In response, Rep. Mary Lou Dickerson, D-Seattle, introduced a bill Tuesday in the Washington Legislature that would prohibit judges from denying or delaying a divorce because the wife is pregnant.
Hughes' lawyers say they will fight on. They say Bastine's refusal to grant her divorce violates her rights under the state equal rights amendment as well as her federal constitutional rights to marriage and privacy.
And although Carlos Hughes is in jail in Montana on other charges, Shawnna Hughes's attorneys argue that the state's determination to put the rights of the unborn child first makes no sense.
"She's historically had difficult pregnancies, and she's having another difficult pregnancy," said Terri D. Sloyer, one of her attorneys, adding that the stress of having to remain married to her abuser is not helping.
And besides, Sloyer said, "what if my client wants to marry the father of her baby?"
Shawnna and Carlos Hughes married in 1998. They had two children together. During her first pregnancy, Carlos started physically abusing her, Sloyer said.
A December Washington Post series cited experts who said 4 percent to 8 percent of pregnant women --160,000 to 320,000 a year -- are physically abused by husbands, boyfriends or partners.
The series also determined that pregnant women and new mothers are more probable to be victims of homicide than to die of any single natural cause.
Because of the abuse, Shawnna Hughes separated from her husband in 2002, Sloyer said. He went to jail in 2003, in part for abusing her. Before his jail term ended last Spring, Shawnna Hughes filed for divorce and sought a restraining order. Carlos Hughes did not object. And on Oct. 26, Court Commissioner Pro Tem Julia Pelc approved the divorce.
Then it got complicated.
Shawnna Hughes is on public assistance. As a result, the state can collect child support from the divorced father of her children. In addition, state law presumes that the husband is the father of any child born up to 300 days after a divorce.
But in court papers, Shawnna Hughes named someone else as the father.
When deputy Spokane County prosecutor Mary Valentine learned about this, she asked Bastine to revoke the divorce.
Valentine did not return telephone calls seeking comment, but in a transcript of a Nov. 4 hearing, she said Bastine should undo the divorce because of "irregularities," including the failure to properly notify the state about the pregnancy.
Valentine also said that naming another father threatened the state's ability to collect child support.
But Valentine went further.
"This child has the right to know who his or her father is as well as who her father is or is not," she said.
And that trumps Hughes' right to divorce an abusive spouse.
"I think it was very clear, yes, that Ms. Hughes wanted to get her divorce. And it's unfortunate that there's been domestic violence involved in all that. But we still, as the court has said, we have to look at the best interest of the child, make sure that the paternity -- that the child is protected here regarding parentage."
Sloyer disagrees with Valentine's interpretation of the law. She also said the ruling violates Hughes' state and constitutional rights.
First, blocking a divorce because of a pregnancy violates Washington's equal rights amendment, Sloyer said.
The decision also violates Hughes' federal constitutional right to marry, first established by the U.S. Supreme Court in 1967 when it struck down a Virginia law banning interracial marriage, Sloyer said.
In addition, Sloyer said the decision violated Hughes' privacy under Roe v. Wade, the 1973 Supreme Court decision establishing a woman's right to an abortion.
Sloyer says Bastine conceded in the hearing that his ruling might not pass constitutional muster. But he avoided the issue by revoking the divorce on the grounds that Hughes' attorneys failed to follow proper legal procedures.
Bastine also said Hughes' lawyers should have notified Carlos Hughes that she became pregnant. And he concluded by saying that Hughes caused her own problems by getting pregnant in the middle of a divorce proceeding.
"If you are going to go out and commit an intentional act, that changes the circumstances, which is what occurred here, then you have created the situation by your own actions that delay your opportunity to dissolve your marriage," he said.
One women's advocate said reading the transcript convinced her that the procedural justification for revoking the divorce was a smoke screen.
"I think that the prosecutor and perhaps that judge are standing in judgment of her because she -- God forbid -- had sex with someone other than her husband," said Lisa Stone, executive director the Northwest Women's Law Center in Seattle. "And it doesn't help that she is on public assistance, that her current husband is in jail and that the father of her child is in jail."
Ashbel "Tony" Green: 503-221-8202; tonygreen@news.oregonian.com
