U.S. Women's Right To Divorce When Pregnant In Dispute

by Judith Spitzer

(WE) SPOKANE -- Shawna Hughes, 27, holds 3-week-old Jasmine to her breast while herding her two boys, ages 3 and 5, downstairs to play at her apartment here.

Hughes, a victim of physical abuse for years at the hands of a husband who fathered the two boys, last year sued for a divorce.

On Oct. 26, 2004, her lawyer told her the divorce was final. After years of physical abuse that began when she became pregnant with their first child, she said she finally felt free.

But on Nov. 4, four days later, she was notified that Superior Court Judge Paul Bastine was revoking the divorce because Hughes was pregnant.

"The judge said he had to make sure the child was legitimate," Hughes told Women's eNews in an interview at her home. "And if I wasn't married, the child was illegitimate. I was appalled."

Terri Sloyer, Hughes' attorney at the Center for Justice, an organization that provides pro-bono legal services, is appealing the ruling and a hearing has been scheduled in a Spokane court in several months.

"The reason we're strenuously arguing this case is that we're very concerned about the state's position and how it affects women in domestic violence cases," Sloyer told Women's eNews.

Not only could the ruling make a pregnant woman vulnerable to continued violence or other harm, she said, the fetus she is carrying could also be damaged.

The Seattle-based Northwest Women's Law Center, along with the American Civil Liberties Union and about 10 other organizations filed a brief in early March supporting the appeal.

The Northwest Women's Law Center, which only litigates cases that have a public impact, said that the state law needed to be clarified.

"Very few women's legal rights organizations are able to focus on family law," said Lisa Stone, an attorney with the law center. "It's very specific and there are enormous needs."

Meanwhile, Hughes' case has served as an impetus to state legislators who want to prevent further such rulings.

On April 6, Washington senators voted 43-0 with one abstention, for a bill that would prohibit state judges from using a woman's pregnancy as the basis for denying or delaying a divorce.

The bill, sponsored by Rep. Mary Lou Dickerson and already passed unanimously by the House, goes before Gov. Christine Gregoire next month for a signature.

Women's rights lawyers in Washington were unable to assess the implications of this case for pregnant women elsewhere in the country. However, Stone, from the law center, said the right of pregnant women to divorce is likely an issue in many other states.

"Washington is not that unique," Stone told Women's eNews.

"The family laws are not that unique. It has to be happening elsewhere." Stone said she thinks that some women may be represented by attorneys who are able to talk the judge out of it.

Women who don't have an attorney, she said, may just think, "Oh, OK, I can't get a divorce yet," and wait until they are no longer pregnant to pursue a divorce.

Stone added that her firm has seen at least 15 recent cases of pregnant women seeking divorce. "And six or seven of those have been since the Hughes case. Some involved domestic violence; some did not; some were able to get divorced and others weren't."

Sara Ainsworth, another attorney with the law center, which also covers Alaska, Oregon, Montana and Idaho, said she was researching whether the same type of discrimination might exist in other states.

"So far there's no definitive answer," she said.

Nationally, estimates of the proportion of pregnant women who are assaulted range from 1 percent to 20 percent, depending on the study's definition and the population.

A 2003 study in Washington State put the proportion of women who reported physical violence around the time of pregnancy at about 6 percent.

A pregnant or recently pregnant woman is more likely to die of homicide than of any other cause, according to a study published by the Journal of the American Medical Association.

The court said the divorce was vacated in part because of the fetus' right to know who his or her father is.

The court said it also vacated the divorce because Hughes' husband had not been legally notified of the pregnancy and noted that "it was the mother's voluntary act of engaging in sexual relations that caused any delay in granting the divorce."

Hughes said there was never a question of paternity.

Carlos Hughes was in and out of jail last year serving time for domestic violence charges as well as a federal drug conviction.

Shawna Hughes said she had moved on with her life.

Hughes' attorney said that a state law--the Uniform Parentage Act--presumes that when a pregnant wife asks for a divorce the husband is the man by whom she is pregnant.

Sloyer added that the law provides ways to overcome that presumption, such as signatures by both men regarding the fetus' parentage.

In court, Bastine said "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.

"You won't find a statute with regard to that," he said.

"But it is implicit in everything we have in the case law and the statutory law." Sloyer argued that Bastine's decision is discriminatory and had no legal basis under Washington State law.

"It's a dangerous policy and it is risking the lives of women in the state of Washington," Sloyer added.

Stone, the attorney with the law center, said Bastine issued the oral ruling saying the needs of the child were paramount to those of the mother.

Court records indicate the judge also said he "would not have the child born into a state of limbo." This has been interpreted to mean that the judge was interested in determining a legal finding of paternity so that the state could pursue a father for child support payments if that proved necessary.

"It wasn't a case of a dispute over who the father was," Stone added.

"Basically, the court and prosecuting attorney could hold her hostage" for any future assistance the baby might require from the welfare system.

Although Hughes said she regrets not having been divorced when she gave birth to her daughter, she feels she's helped other women.

"I've made a statement for other women so maybe they don't have to go through this," she said.