The First Amendment is an important one. It is first, after all. Although most Americans can agree that freedom of speech is foundational to our country, what is considered protected speech is a fairly complicated area of law. It’s not just words – conduct, dance, art, clothing, donations, and symbolic gestures are all considered speech (among other things). So too is the right not to speak.
Which brings us to our current political climate as it relates to one of our nation’s oldest and most revered pastimes: football. A player’s right – indeed, any citizen’s right – to stand, not stand, kneel, sit, abstain, etc. during the National Anthem is a protected right under the First Amendment. The Supreme Court decided almost this exact situation years ago in West Virginia Board of Education v. Barnette, a 1943 United States Supreme Court case.
During WWII, West Virginia’s Board of Education decided to amend its laws and require that all teachers and students must salute the flag and any refusal to do so would be considered insubordination and result in expulsion, which in turn could lead to criminal prosecution, fines, and jail. Specifically, students and teachers were required to raise their right hand, keep it raised and stiff, while repeating the pledge of allegiance.
Marie and Gathie Barnett, two children in West Virginia who were also Jehovah’s Witnesses, refused to salute the flag and recite the pledge. (Jehovah’s Witnesses’ religious beliefs forbid them from saluting or pledging to symbols). Accordingly, the two kids were expelled and their parents filed suit in United States District Court, citing the First Amendment. The lower court agreed this was a violation of the Constitution and so did the Supreme Court.
In a 6-3 decision the Court ruled that it is unconstitutional to require students and teachers to salute the flag. The Court found that saluting the flag is conduct, or a “form of utterance” and therefore is considered protected speech by the First Amendment. Forcing salutation of the flag is “compulsory unification of opinion” and is directly contrary to the very purpose of the First Amendment.
With that little bit of background, let’s fast forward to the current state of affairs. Barnette remains good law and has never been overturned. The right to refuse to salute the flag – in whatever form – is a constitutional right. When Colin Kaepernick decided to take a knee during the national anthem, that was his fundamental right. When the entirety of the Seattle Seahawks sat in the locker room during the national anthem, that was their collective fundamental right. Every player, every team owner, every coach, and every citizen has an inalienable right to do pretty much whatever they’d like to do while the national anthem plays.
There is one caveat: as the NFL Is a private organization, it could technically enact a policy requiring its players to stand during the national anthem, if it were so inclined. Barnette extends to public/government organizations, such as the school at issue in West Virginia. So far the NFL appears to be supporting its players’ decisions to protest, or speak, in whatever manner they wish and has not enacted any kind of policy compelling participation. It is shocking, however, that the leader of the Free World and upholder of the Constitution and its laws is encouraging the private organization to suppress speech in this way in the name of “patriotism.”
Let us not forget that our country is founded on protest, dissent, and ultimately the desire to be a free people. We started by throwing tea into the Boston Harbor – thus began the concept of the Patriot, which notably we now have an NFL team named after. Union protests have led to safer work environments for our citizens. Suffragists picketing and lobbying led to the 19th Amendment. Bloody Sunday, and the horrific violence it showed on national TV, ultimately led to the Voting Rights Act and the Civil Rights Act. This is the quickest and shortest list of protests this country has endured and doesn’t give the protesters anywhere near the credit they deserve, but the point is still poignant: protest IS patriotic.
Maybe if the national government had paid attention to the tragic killings of Freddie Grey, Philando Castile, Charleena Lyles, Alton Sterling, Michael Brown, Trayvon Martin, Eric Garner, all those who have died at the hands of the police, we wouldn’t have to pay any attention to what our football teams are doing while someone sings about our “land of the free.”
One of the most difficult things in family law can be that he says one thing, she says another, and then a judge/commissioner has to make a decision based on which parent seems more credible. So how can you prepare for court so that everything doesn’t end up he said-she said?
First things first – don’t involve the children. Time and again parents want to submit information about how little Janey told mom all about how terrible it is at dad’s house. Mom will submit a lengthy declaration or attempt lengthy testimony about all the things she talked about with Janey. The problem is, this is not helpful and it’s not admissible. More importantly, it puts your kids smack dab in the middle of conflict, which is likely to cause even more emotional turmoil for both you and your child.
The most basic advice I have for you is to keep everything in writing. That can be email or text message, but something where you can print it off and submit it to the court if you need to do so. If your son comes home from mom’s house with clothes on that don’t fit and says he hasn’t taken a shower in 2 weeks? Email mom and address the situation. There’s a good chance mom will then respond, in some manner, and both of those emails can ultimately be given to the court so it can see the other party’s own words on the subject. It’s much harder to deny something happened if you have an email that says it did happen and the words of mom herself about the situation. The best case scenario here could also happen – maybe there is a perfectly good explanation for the circumstances and now you’ve gotten an answer from your co-parent without revving up a lot of litigation where otherwise the only way you would get an answer was in a responsive declaration. If, for whatever reason, a telephone conversation is had about any events, follow up that conversation with an email that starts, “Just to reiterate what we agreed to on the phone….”
Next: Facebook or other types of social media. People post a lot of things here, often that they shouldn’t. Did Dad post about how’s he been out drinking all night and then his buddy commented with a picture of the two of them doing a keg stand, all the while your parenting plan has restrictions in it because Dad is an alcoholic? Print it out; save it. Facebook posts can be submitted in court and just like the emails/texts you send, the other party is going to have to answer for his/her own actions/words in these circumstances. In the event Dad realizes this was a poor choice to post and deletes it, you’ll already have a printed copy of it.
Finally, keep a detailed log or journal. This is not going to be admissible as a whole, but it can be a great tool to refresh your own memory when you are writing a declaration or preparing for testimony. If nothing else, studies have shown that journaling out your feelings can help you process through them, something we all need when we are in the midst of a stressful situation.
1. Don’t involve the kids. Ever.
2. Always put things in writing.
3. The other party’s own words – whether in email or on Facebook – are words he/she will have to answer to later*
4. Keep a journal – even if it’s only for your own sanity.
* words of other people, much like the children, are not admissible. This is considered hearsay, so if you have a friend/family member/colleague who has witnessed something, they need to write their own declaration sworn under penalty of perjury or testify themselves at court.
This blog usually focuses on family law specifically. Given all that’s going on in the news these days, though, the broader question of justice – or perhaps lack thereof – has been on my mind. Today’s post will drift a bit away from family law and talk more about law, my own personal experiences, the Constitution, and justice as a whole.
-Betsy A. Crumb
We have a system of justice that I want to believe in and yet it seems like every day it fails me. Or really, it fails people of color. Not me personally. I’m a privileged white girl who grew up on a farm – I never had to worry about being shot as I walked into school. I never had to think about which gang I might join to ensure protection while I walked to the bus stop. When I talked to my family about our heritage, I didn’t have to listen to painful stories about how at one time someone owned me and beat me at their will if I deigned to do something like speak up. While my family did not have a lot of money I definitely never wanted for anything and certainly not the basics like food, shelter, or safety.
I didn’t have to grow up and think that someone – a law enforcement official – might shoot me simply because I decided to wear my favorite black hoodie with the hood up that day that I was cold. In fact, it would never even cross my mind that I shouldn’t get to wear my favorite softball team’s sweatshirt with my name on it. It was a sign of loyalty to my team; a sign of prestige that I was on the varsity team by sophomore year. It was a sign of a privilege because underneath that black hoodie my skin was white.
When I get pulled over by the police for speeding – and let’s admit it, I speed more than I ought – I wait in my car and deal with my annoyance at the situation. Sometimes I make myself cry because who doesn’t take pity on a poor white girl weeping? Never do I worry that today’s the day I might die. Never do I think twice when I reach into my glove compartment to get my registration. Never do I think about all the things I “should” do in order to make sure that I am going to make it out of this situation alive.
It doesn’t even matter, though, whether a person of color takes “precautions” to try and prevent police officers from killing them. Alton Sterling, Trayvon Martin, Michael Brown, Philando Castile, Freddie Grey, Tamir Rice, Sandra Bland – they weren’t killed because they didn’t do things “right.” They were killed – murdered – because they have black skin. It’s that simple. When Ammon Bundy and his band of yahoos all holed up in Oregon with numerous guns police did nothing more than tell them to stop. For 41 days we allowed these heavily armed white men to make their stand – refuse to pay federal taxes and claim that the Constitution had no bearing on them. Eventually we threw them in jail and will ultimately give them due process. Yet in under 48 seconds Alton Sterling was assaulted and then murdered – shot, multiple times – for the crime of being black in Louisiana. Philando Castile dared to drive around with a tail light out; that ended in his murder. Where’s their due process?
I loved Constitutional Law in law school. It was my favorite class and when I watched the HBO version of “John Adams” I cried at the scene of the first reading of the Constitution. Call me a nerd, but it made me feel obligated to work on upholding the rights we have fought so hard for. I felt defiant, angry, yet motivated to help change the world when I took constitutional criminal procedure. I became a lawyer because I do, truly, want to uphold the law. I believe in the Constitution and the Bill of Rights. I believe in checks and balances and the Supreme Court and I want everyone – no matter their sin, no matter their crime – to be given a fair trial. Heck, a fair shot at life.
Yet, in today’s society, we’ve decided due process is not necessary if your skin is anything other than white. Police officers are the judge, the jury, and the executioner all at the same time. Their decisions are not grounded in the law; their decisions are grounded in their own prejudices, their own racism, their own fear. Those murdered and shot don’t get a fair trial. The cops who shoot them – if they actually are prosecuted at all – get off, get immunity. Everyone makes mistakes, you know? These mistakes – “he had on a hoodie”; “he was reaching for something” – translate to: He was black.
We are a society run by, shaped by, and dominated by white culture. We deem other cultures valuable when we want to take their attributes – hip hop, tacos, yoga – but we don’t deem the people of those cultures worthy of our laws. White people are the oppressors and only white people can change this. White supremacy is still a movement in this country; it’s also still the foundation of our country and what protects my privilege and allows the indifference of police officers and the judges who acquit them to keep murdering innocent black people.
As Macklemore aptly put it: silence is my luxury. It’s a luxury people with black or brown skin don’t have. I confess I don’t know what the answer is here. What I do know is that it’s time to listen. It’s time to realize that we – the white people – don’t have the answers because we don’t have the same perspectives that people of color do and more importantly, we don’t take the time to listen so we can make real change. We don’t want to put ourselves in the shoes of someone who has less than us, who has to hustle every day, because it’s hard. We don’t like the hard. We don’t like the possibility that our lives, our culture, our everyday existences might have to change. God forbid we should be slightly inconvenienced. I implore you, however, to let that go. Embrace the hard. Swallow that giant lump that’s been in your throat and help end these senseless killings. Don’t be silent. Don’t be passive. Don’t stand for injustice.
Black lives matter.
Communication – or lack thereof – seems to be the root of many the world’s problems. In fact, this very well may be one of the main reasons you are getting a divorce. Communicating when your spouse becomes your ex is decidedly more difficult than when he/she was your spouse. But beyond the hurt and the raw emotions of it all, poor communication can (and will) end up in the courtroom and come back to haunt you. So just don’t do it.
First of all, unless the whole thing is unusually amiable, stick to writing for all communication. Sending an email or a text ensures that there is a copy of what you said, so no one can come back later claiming something different. Writing also helps keep the emotions low; keep it brief and simple. A great book on how to communicate with someone who is high conflict (or during a high conflict time) is “BIFF,” by Bill Eddy. A phone call sometimes seems like a good idea in the beginning, but the minute the conversation turns sour and you both start passing insults and allegations back and forth, you know it was a bad idea. We’re human – a divorce is one of the most traumatic things you’ll ever go through – so it’s understandable how these things turn into an “It’s all your fault!” screaming match. Unfortunately, all those shouts and insults will more often than not come out in the exhibits of a declaration when you’re all of a sudden looking at a Temporary Restraining Order that prevents you from disturbing the peace. So keep it simple and keep it in writing. In the event that a phone call happens, follow it up with an email that says, “Just to recap….”
Second: Facebook. Don’t spill the beans about your wife’s affair on Facebook. Don’t call him a slimy *****. Don’t talk about blowing all your (community) paycheck on new shoes. Don’t post pictures of you downing 40s when you were supposed to be at a family barbeque. Don’t make passive aggressive statements about how to be a “real Dad.” Besides the fact that no one wants to hear the sordid details of your marital strife and this will be your quickest way to lose some friends, or at best, be hidden on everyone’s news feed, I promise you: this WILL come out in court. When your ex is there in court requesting that you stop disturbing his peace, he’s also going to include these Facebook posts where you call him a jerk, are drinking to excess, and spent community funds on a hot new pair of shoes. You may look great in those new Fluevogs, but you’re not going to fare well before the court. (And on second thought, just don’t refrain from posting these things on Facebook, just don’t do them all together).
Finally, if positive communication with your ex feels impossible, DO at least communicate with your lawyer. It can be difficult and painful to tell a near stranger some of the most intimate details of your life. But your lawyer cannot do her job if you don’t prepare her. Don’t wait until the motion is filed, the declaration is written and the Facebook exhibits are glaring before telling your attorney: oh, yes, that’s true, I did in fact liquidate the IRA so I could go to Mexico…. We attorneys are not here to judge you; we’re here to help you and the more information you can give us, the better we can do our jobs.
One of the most frequent things I hear people tell me when they come in for a consult is: “I want to go for full custody.” I always ask folks what exactly they mean by that, because what that sounds like is a parent who wants to have the children full-time, with no visitation for or input from the other parent, and I’m here to tell you that’s a highly unlikely scenario.
Parenting plans in Washington State give each parent residential time. The split of residential time varies, with everything from 50-50 schedules to 60-40 down to 90-10. Usually when people say they want “full custody” they are referring to having a split of residential time where the children are with them the majority of time. However, the other parent is almost always going to get some visitation. Sometimes that visitation is restricted in cases where a parent has issues related to domestic violence, alcohol/drugs, a mental or emotional impairment, or another situation where it may make it dangerous for the children to be around that parent. You might hear your attorney refer to “191 restrictions”: a reference to RCW 26.09.191, which can restrict a parent’s visitation based some of the above-mentioned issues.
Absent restrictions, the split of residential time becomes a question of looking at a number of factors. When the court determines a parenting plan, it looks to the criteria listed in RCW 26.09.187, specifically section 3(a):
(i) The relative strength, nature, and stability of the child’s relationship with each parent;
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent’s past and potential for future performance of parenting functions as defined in *RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent’s employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.
Each parenting plan is different because each court is looking at the circumstances of each individual case. There is no one determination for “getting full custody” and as stated above, it’s unlikely that you are going to get “full custody” unless your ex-partner has a severe impairment that may restrict his/her time.
In the event that one parent does have an impairment of some kind, then the appropriate visitation may be supervised residential time. There are professional supervisors available who are available to monitor a parent during his/her residential time to make sure the interactions with the children are appropriate. If this is something you are considering, here is a good list of available supervisors in the Seattle area. Parents sometimes choose instead to pick a lay supervisor, someone who the parents trust to be a neutral third-party and monitor the visits. This can be a family member, a friend, or maybe a neighbor. With the exception of extreme cases, usually supervised visitation doesn’t last forever and if the parent with the impairment is actively working to make that impairment better (eg: going to rehab, taking batterer’s treatment classes), then oftentimes after a certain amount of time the visits become unsupervised.
The other major issue folks might be referring to is decision-making. Section IV of your parenting plan discusses decision-making. In the event that there is a .191 restriction, then sole-decision making goes the parent who is not restricted. Absent a specific restriction, then this is another decision made by the parents themselves or the court based on the factors listed in RCW 26.98.187(2)(c), namely:
(i) The existence of a limitation under RCW 26.09.191;
(ii) The history of participation of each parent in decision making in each of the areas in RCW 26.09.184(5)(a);
(iii) Whether the parents have a demonstrated ability and desire to cooperate with one another in decision making in each of the areas in RCW 26.09.184(5)(a); and
(iv) The parents’ geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.
Generally speaking, if you and your partner can agree on the provisions of a parenting plan, then you can choose a schedule that works for you. Courts love when parents are able to do this on their own, as everyone’s situation/work schedule/circumstances are different and you are the best person to know what will work best for you, not a judge. But in the event you need some assistance from the court, consider the above factors in determining how to make a successful parenting plan.
Finally, sometimes folks want full custody because they think this means they won’t have to pay child support. Please review this blog entry to dispel that myth.
For a link to obtaining a blank parenting plan, click here.