JUDGE THOMAS FRAWLEY: Appreciate the opportunity to speak to you all today. I want to talk, primarily about three things. If you all want to interrupt me as I'm going along with any questions, feel free.
 
    I'm a circuit judge in 22nd judicial circuit, which is the City of St. Louis, and, effective July 1, of this year, we have implemented, to our own local rules, some things that you all have talked about in the last legislative session, and some of the things that Teresa Kaiser has just talked about.

     One thing we have adopted is a local rule requiring all people who go through a divorce to participate in parenting education, as well as the preparation of what we call, using Pat Dougherty's words, "parenting plan".

     I don't have a lot of statistics on its success, since we started it just in July 1., But I can give you some of the things I've been told by our mediators and some of the things I think are essential to its working.
 
    We have four, they will often be ladies, but they're domestic relations workers, masters in social work, people who are employed by our court who are in our domestic relations unit, and they are the people who are monitoring and who are involved in supervising and implementing this program.

     Every divorce case, when it is filed, the words are required that you state on the pleading whether child custody or visitation is at issue. Once they do that, the case is immediately referred out for mediation to the domestic relations unit. Our domestic relations workers issue a letter to both the mom and the dad, enclosing a parenting plan, and requiring that these folks fill out and complete the parenting plan. That letter also sets a mediation appointment for both the mom and the dad, wherein they come in and discuss the respective components of their parenting plan. We are finding, so far, two problems.

     One, the people cannot understand what the parenting plan is all about. I took, I guess I bastardized, is the best word, the two parenting plans that are in the book that Teresa Kaiser showed you. There's one in there, I think, from the state of Washington, and one in there from another state. I took what I thought was the simplest parts of it, and our litigants still can't understand it. The other problem that we're encountering is that many of the litigants say I'm paying my lawyer to do this, so they get it and they send it to their lawyer, and the lawyer fills it out. I think that's one of the glitches in the system that we can overcome, which is, I think, maybe the cover letter is not as explanatory as it needs to be, and maybe the form needs to be a little more simplified.

     One of the things I think that is a necessary component, two of the things that are necessary components, if you're going to implement a parenting plan project is one, I think you have to have mediation, as a necessary component of it, and I think you need to have parenting education, as a necessary component of it. If you don't have both of those things, I think what will happen is the litigants will fill out a parenting plan. Maybe they'll bring it to court. Maybe they'll show it to their lawyer, but it never gets to the next step which is somebody looking at it and finding out whether mom and dad really agree on most things, or whether they totally disagree on everything.

     A second thing which we have implemented as of July 1, and I think this is, to me, one of the most essential parts of anything you can do in the domestic relations law, is a program where we enforce visitation or temporary custody.

     One of the things, parenthetically, that I would love to see you do, is eliminate from all of the statutes the word, "visitation." I think it is the most offensive term. When a parent is called a visiting parent, I think they're offended by that, and I don't blame them. Visitation, to me, is a sense where the child is in a setting where the parent who is visiting cannot take the child from that setting. That's visitation. If the child is leaving with mom or leaving with dad, to say that they're the visiting parent, I think is offensive. But, nevertheless, use the term that has become commonplace in our legal parlance. We have a program wherein if you are denied visitation or temporary custody, be you the mom or the dad, you have a phone number to contact at our domestic relations unit, and once you make that phone call you are mailed a form, and it is, and I've left a copy with Kathy Armstrong to distribute to you all if you'd like. It's a one-page form. It's got about five lines. It, basically, says, are you divorced, or is this a paternity case, and, secondly, what happened? The mom or the dad fills it out and mails it back to our domestic relations unit. Our domestic relations unit then sends out a letter to the noncomplying parent. It says you get in here within 14 days. We're going to talk about this problem. The letter is to be mailed out no less than five days after they receive the complaint and the mediation session is scheduled, as I've said, within 14 days. One of the essential parts of this that I think is imperative, is that there's no filing fee. There's no court involvement, although there is court supervision. I'll use dad as the example as the parent who is being deprived. Dad contacts our domestic relations unit. He doesn't have to pay $160.00 filing fee. He doesn't have to pay a pro se fee, which was discussed last year, of an additional $35.00. So, that every time he feels somewhat taken advantage of my mom it doesn't cost him $195.00.

     Another thing that I think is essential to this program is, again, having court mediators, or having people who are able to be skilled in mediation. The question about CASAP involvement, I think is important, but not all CASAC's are trained at the level that the mediation that you need to be to solve these problems.

     One of the things that we are finding, and, again, we don't have a lot of statistics since this program was started in July, is that - some of the problems, or many of the problems, aren't really mediation, but they're every day real problems that mom and dad have involved. Dad doesn't get the report cards from mom. Dad can't have phone access to mom. Mom can't get phone access to dad when the kids are with dad. Now, whether those are custody problems or just real life problems of mom and dad, somebody's got to solve them, and if these people have to pay lawyers, and have to pay court costs to solve those problems, I don't think we're doing a service for them.

     A couple other things that I think are important. We have funded, this year, the city budget, we have what's called the safety exchange center, supervised visitation center in the City of St. Louis. I think the safety exchange component of the center is essential if we're going to enforce visitation, as it should be. All too often I hear situations wherein mom says, "Well, dad didn't show up." Dad says, "I was there. You weren't at the house." Mom says, "well, you were 20 minutes late." Dad says, "No I wasn't." I wasn't there. I can't solve that problem, but mom's lawyer and dad's lawyer weren't there and can't solve the problem either. Oh, I can issue an order and I can fine who I believe and who I find to be more credible or less credible.
 
    What we are using the safety exchange center for, among other things, is to avoid that problem, and I think it's one of the important ingredients to enforcing temporary custody, in that we now have a situation where mom brings the child 15 minutes before the visitation or temporary custody is to occur, goes into Room A.  Dad comes in about 10 minutes later and goes to Room B. If they're not on time, or they're not there, we have an independent third party who has no ax to grind, and who has no allegiance to mom or to dad to tell me whether or not they were there, whether or not there was a problem.

     One of the other things I hear about all the time, is the child doesn't want to go. The child won't separate from mom. Dad saying, "well, mom won't let the child go." Mom keeps hugging the child. Mom keeps calling the child to come back. Again, we have a third party to be involved, maybe not solve the problem, but at least to inform me as we go along whether or not that is, in fact, a problem.

     I think a couple of things you need to think about if you're going to enforce temporary custody is what the punishment or penalty will be for that person who engages in repeated violations. Changes of custody are certainly one animal, and although we, as judges, do that, I sometimes wonder who's being punished when we move a child from mom to dad, because of the parent's behavior, but, nevertheless, some of the things you need to look about if you're going to get into an enforcement program that is actually outside the court. I don't think changes of custody should be one of the available remedies. I think once there is a perspective change in custody, you raise the likelihood of lawyer involvement and although I don't begrudge the lawyers to be involved, I think some of these problems are not necessarily ones that lawyers can solve. Again, there are advocates and that's their job, but I think oftentimes, some of these problems, there's really no - it's not a question of advocacy, it's a question of trying to address the problem so these people can move on. But, if you have a mother who believes that she is right in withholding custody, and she goes through a visitation enforcement, which is intended to be nonlawyer, noncourt involvement, and she may lose custody in the process, she's going to be very hesitant to be very participatory.

     I think the statute, currently, as I read it, allows for us to abate future support only. I think there should be some availability to abate past support, so that if dad has withheld his support, because mom has been duncing him around at his visitation, and, although, we, as judges, and we, as lawyers, recognize that those are separate problems to the people in the real world, they're not separate problems, and if all I can abate is future support, I'm not sure that, necessarily, that addresses the problem satisfactorily for the dad or the mom who is being deprived of visitation.

     Right now, the case law, as I read it, does not really allow me to fine the people for their behavior. I had a lady who engaged in what I thought was completely reprehensible conduct, in denying visitation, and I fined her $10,000, and that was reversed on appeal for the reason that there was no evidence of what damage dad suffered as a result of the deprivation of his time with his child. I don't know how that can be quantified. The child that is four today will never be four again. You can quantify the child support that mom doesn't get, because you can add interest to it, whether it's at nine percent or is it currently, is it one percent a month, or whatever percent you want to do, and you can at least, somehow, compensate her for the loss of the money that she doesn't receive, but I don't know how you can compensate the dad for the school function that he missed, for the weekend at the lake that he couldn't participate in, and for things such as that, and I think that there needs to be some recognition, and whether that's legislatively, or through case law, that we, as judges, can fine these people, whether they're the mom or the dad for their behavior. If it rises to such a reprehensible level, then we think it's essential that a certain monetary penalty be imposed.

     One thing I think that you ought to do as you look at this legislation, is figure out your definitions when you use your terminology. I think, right now, there's a certain confusion. Visitation, as I've indicated, to me, means that the child stays in one place and the parent comes to him or her. I don't think if you read through the statutes, you will see that that's the way visitation is used. It may not be that's the way - if you mean it to be something else, that's fine, but I think you should define it. I think you should define what Joint Legal Custody means. The statute currently says that joint legal custodians shall share decision-making responsibility. I don't know what that means, totally. Those words I understand, but, does that mean that the parents are to agree, that they sit down and they consciously discuss and agree whether the children will go to public school or catholic school or private school, whether they will be raised Catholic or Jewish or nondenominational. I submit to you that many intact families don't sit down, the husband and the wife, the mother and the father, and make these decisions, where they sit across the table and decide. I submit to you that in most families, although, at least in my own, and maybe mine is unique, the decision is just made. I trust my wife's judgement. I suspect a number of you trust your wife or your husband's judgement, recognize that in people getting divorced, particularly the contested case, there's no one to trust anyone's judgement. And, to say that joint legal custody really means share and decision-making responsibility, I don't think defines it carefully and sufficiently enough. Joint legal custody, to me, means agree. Confer, discuss and agree, and if you're going to saddle these children with people who are going through a contested case with a preference for agreement on decisions affecting their children, I think that's a mistake.

     Should every parent be involved in every decision? You bet. Should every parent receive all of the custody, the report cards and the medical information in terms of when the appointments are? You bet. Should there be full and access when dad's got the child, when mom's got the child? You bet. But, to sit there and say that these people who are going through a contested divorce case, who don't like one another very much, and who don't trust one another very much, whether they're going through a contested paternity case, are going to have to make a decision by agreement where they sit down and come to an agreement, whether this child will go to catholic school or private school or public school, I think is not fair to the child, remembering that the person who votes not to change anything wins. There's almost a veto power. If the child is currently in public school, and dad wants to move the child, and mom doesn't want to, mom wins, if you require agreement. And, what about the child as he reaches, or she reaches graduation from 8th grade and has to decide what high school he or she goes to, and her parents or his parents can't sit down and agree what school they're going to go to? What about, and I, sadly folks, have faced this question twice, with good parents. What about the child that may or may not Ritalin? Am I to make that decision for them? I have two cases where I'm going to have to make it. Both mom and dad have gone out and they've sought out expert opinion. They're good parents, in both cases, and Ritalin is a very touchy issue. It's a very, very scary thing. I know first hand, because one of my daughters is on it, but I have a mom who's researched this problem thoroughly. I have a dad who's researched this problem thoroughly, and the doctors they've talked to have 180 degree opinions, and they have joint legal custody. Who makes that decision, folks? I do. I don't think that's what we're about. I don't think we're about me, as a judge, telling these two people whether their child should or shouldn't be on Ritalin.

     CASKEY: Judge, is this a good time for questions?

     FRAWLEY: Yes, Sir. That's fine, Senator. I didn't real good track of my time. I'm used to this court of appeals where they have the lights that go on. So, I apologize.

     CASKEY: We have been joined by Senator Kenney and Representatives Kaston and Ridgeway, and as soon as Senator McKenna gets here, we'll have a full committee. I've never chaired a committee where everybody shows up. We don't even have enough chairs.

     Representative Smith, you had a question.

     SMITH: Thank you, Senator. Judge, welcome to Jefferson City. I haven't seen you here for a while.

     FRAWLEY: Thank you, Sir. It's good to see you again.

     SMITH: Can you tell me, Judge, how do you fund your parenting education, parenting plan, mediation, or whatever you call it?

     FRAWLEY: Basically, the funding of the Board of Domestic Relation worker, they are employees of the court, so our court budget pays for them. The court budget also pays for the Supervised Visitation Safety Exchange Center and the court budget also pays for the parenting plan, the Parenting Education Program. So, basically, our court system funds everything.

     SMITH: How would we do that in an area that doesn't have that kind of funding?

     FRAWLEY: I don't know. I think money is a real issue here. I think it's a real problem.

     SMITH: I think we've about maxed out court costs.

     FRAWLEY: I think we've maxed our court cost, and I think we are getting the people who can least afford more money to have to pay. The family court, the county, or the circuits, or your family courts already have additional money that they get, whether those circuits could fund it out of their family court budget fee, I don't know.

     SMITH: But, if you don't have a family court division.....

     FRAWLEY: If you don't have a family court, then the people are not paying that fee, but you're also having somewhat little more limited resources available, and if we keep increasing the court costs to these poor folks - we're already dividing a pot that was probably not divisible anyway, in terms of the money, and I think.....

     SMITH: I mean, I see the merit in the system, but I just don't know how we're going to pay for it.

     FRAWLEY: I don't know how you pay for it. I think there is some federal funding available. California, Senator Calderen, out there, adopted, or had the California Legislators adopt a Friend of the Court procedure that Michigan has, and all they did was, they said, we're going to do it, but when we get federal funding is when we're going to implement it. So, I think there's some federal funding available.

     SMITH: And, you're requiring - I understood your testimony to say you were requiring parenting plans....

     FRAWLEY: Yes, Sir.

     SMITH:.....and what if the parties cannot agree on a parenting plan? Do you make that parenting plan?

     FRAWLEY: Basically, I make it. Yes, if the parenting plan submitted to the mediators are so diverse that they can't come to an agreement, then the case comes back in front of me and it's either a contested case or one that I use, some settlement tools, or techniques, to try and get the people to come to their own agreements on. But, yeah, if they can't come to an agreement, it's a contested divorce. You contest a paternity case, and I make the decision.

     SMITH: And, you were lamenting the fact that you were going to have to make that decision on whether or not the child takes Ritalin, or whatever, and, you know, I think it goes back to just what we just talked about, if the parents can't agree, that's why they call you a judge.

     FRAWLEY: That's right.

     SMITH: You're going to have to make that decision.

     FRAWLEY: And I meant in the sense that it's sad that I have to do it, but that's what I get paid to do, and that's what I do, and I'll make it.

     SMITH: And, then you talked about abating child support. When do you do that?

     FRAWLEY: I'm sorry.

     SMITH: Abating child support. When do you do that?

     FRAWLEY: When do I do that? I'll do it if - I used to fine the people. As I said, I fined that one woman, but since I can't do that anymore according to the court of appeals, I abate the support if I think a monetary component is something that will cause the custodial parent to be more responsive to the court order.

     SMITH: But, aren't you, in effect, taking that money away from the child?

     FRAWLEY: I certainly am.

     SMITH: Aren't we supposed to be looking at the best interest of the child?

     FRAWLEY: We are. It's a circle, Representative Smith. It's a circle that I don't know how we break. You're right. If I take the money from the custodial parent, I'm taking it, basically, from the child.

     SMITH: Right.

     FRAWLEY: But, if we have no way to penalize or punish the custodial parent, then he or she acts with impunity. Now, if you say, well, you can move custody. Who are we punishing? We're punishing the child, again, because of his or her parents' behavior. I don't know that there's a good answer. We put them jail. I've done that.

     SMITH: Contempt of court.

     FRAWLEY: I'm sorry. In contempt of court. So, I put the custodial parent in jail. Now, who raises or takes care of the child? Well, do we transfer the child immediately to the other custodial parent, or do we have grandma or aunt Suzie or uncle Pete do it?

     SMITH: I'm just concerned that if you abate that child support, you're taking away the purpose of the support to begin with, which is to help the child.

     FRAWLEY: I agree, and what I'm submitting is the statute already permits the abatement of future support, and assuming that you all like that procedure, and it has all the problems you've suggested, then I think you need to look at whether you ought to abate past support. If you've got a dad or mom who hasn't paid, sometimes they haven't paid because they don't know where they are, and just disappear. And so, they haven't paid, and now they owe five or six or ten thousand dollars.

     SMITH: Right.

     FRAWLEY: And so, out comes the collection effort. And, the collection effort is when the noncustodial parent oftentimes comes back and says "I want to see my kid now", and the custodial parent says "Well, okay, here's my child support, but, by the way, you haven't seen your child for seven years, we've got to reintroduce you to your child." And, the noncustodial parent says, "Well, that wasn't my fault. You moved to Timbuktu. I didn't know where you were. You didn't tell me where you were. You didn't give me a phone number. You didn't give me an address." And, of course, I hear the other side. "You knew where I was. You knew my mother lived. My mother hadn't moved. You could have contacted my mother."

     SMITH: Thank you Judge. Thank you, Senator.

     CASKEY: Senator Jacob.

     SENATOR JACOB: Judge, in your process where you send a parent a letter and you give them 14-days to come in.....

     FRAWLEY: Yes, Sir.

     JACOB:.....and, that's a pro se type of activity?

     FRAWLEY: It is - I don't like the terminology, "pro se." It is the individual without lawyer involvement, yes. Pro se, to me, means that there's often more involvement on one side or the other.

     JACOB: That was the question that I wanted to ask, is let's say, I got this letter from the court and what do I do with it, and the lawyer says, well, I'm going with you. Does that happen?

     FRAWLEY: We do not let the lawyers participate. It is a mediation session, and, we have, as part of our local rule, everything that is said in mediation is privileged, so it cannot be shared with me, as part of any evidentiary manner in any kind of case if I ultimately have to hear it. Our mediators have no power to impose on the litigants anything, other than to try and help them come to a resolution on their own. If our mediators believe that dad is totally at fault, they can't say to him, well, you're not getting anymore visitation or temporary custody, or if they believe mom is totally at fault, they can't say, well, we're moving the child from you and giving the child to dad right now.

     JACOB: What happens if one of the parents doesn't want to come in?

     FRAWLEY: Then, basically, this is something I think that Michigan has dealt with, that I don't know - I haven't thought through how to deal with it yet, to be candid with you.

     Michigan has empowered the Friend of the Court as being the prosecutor. I don't mean, prosecutor, in a criminal sense, but the person who files the contempt case and who proceeds with it, as the representative, the lawyer, if you will, of the person who's deemed to prod the temporary custody, so, again, that there's a saving of costs.

     I haven't figured out yet how I solved the question of the people who won't participate or who are unsuccessful resolving. I think they have to go to their lawyers, and I think they didn't have to pay the filing fee, and, I tried to get through on our local rule, the empowerment of our domestic relations workers. They didn't want the power, and our judges said, and I think, correctly, that I don't have the legal authority to do that.

     CASKEY: Judge, thank you, very much. Our next witness is a judge.

     JACOB: Harold, I just wanted one little short question.

     CASKEY: One little other question?

     JACOB: One short little question.

     CASKEY: One short little question, which will deserve one short little answer.

     JACOB: Before the Senator interrupted your testimony, you were discussing don't saddle a child with two parents who can't agree. I was wondering where you were going to go with that. Does that mean that if you run into a situation where these parents are choosing not to agree on things, are you going to make the decision for the child, or are you going to give custody to one parent over the other parent?

     FRAWLEY: I think that's what I have to do, in our current state of the law. If they can't agree, who's going to be the legal custodian, I have to appoint one of them. If they can't agree what the physical custody arrangement is going to be, I have to set it for them.

     JACOB: Do you ever set - I mean, so you wouldn't set joint custody unless they were going to agree to it?

     FRAWLEY: No. I've done it. But, it takes two unique people who are going through a contested case where for three hours, or six hours, or eight hours, all they've done is dump on one another. I haven't had a custody case yet where mom has told me what a great guy dad is. He's a terrible husband, but he's a marvelous dad, and dad has said the same thing about mom, and those two people, I never see, because they agree, and they come to their own agreement. People I see are the people that don't like one another very much and they tell me how bad a parent their spouse or the parent of the child, the father or the mother is.

     JACOB: Do you think, though, that maybe it's still dumping on the child?

     CASKEY: Senator, you said, one little question. That's the third one.

     JACOB: Just a second, Senator. Do you think, though, that it might still be dumping on the child to saddle the child with the decisions of one parent without the input of the other parent then? I mean, my wife and I can't agree on anything for our children, you know, and somehow things get done.

     FRAWLEY: No, there should be no decision made by one parent without the input from the other. It's a question.....

     JACOB: But, ultimately, it's still going to be left to one.

     FRAWLEY: Somebody has got to make the decision, Senator, whether it's mom, dad, the children, together, or me. Somebody has got to make it. Somebody has got to be power.

     JACOB: Sometimes I think, even though they're using the court to not make a decision because they know that the court is going to be forced into giving custody to one parent, and, generally, I don't know about your court, but a lot of courts are still biased towards, I think, the mother, in terms of who gets custody.

     FRAWLEY: They run about 66 percent in favor of dad.

     JACOB: I see, except for your court.

     CASKEY: Representative Hollingsworth, you had a very brief question?

     HOLLINGSWORTH: Yes, Mr. Chairman, thank you.

     Judge, just briefly, you, I understand, are on the Missouri Supreme Court, a committee of some sort, reviewing and revising child support guidelines?

     FRAWLEY: Yes, Representative.

     HOLLINGSWORTH: What's the status of that? And, can you tell us anything about that, briefly?

     FRAWLEY: Sure. The status is the following: The final meeting has been held. I'm in the process of preparing the executive summary, which is a much greater task and more bigger pain in the neck than I thought it would be. I hope to have everything in by the end of the month. It will go from the committee to the Supreme Court where they will look at it. We have changed, and then they will come out and either adopting it in the whole or in part, I assume. The timing on how quickly they will act, I couldn't tell you. April 1, 1998, is the deadline, because that's the quadrennial anniversary of the last review.

     The things that we have dealt with are the following: We have dealt with a credit to the noncustodial parent for times spent with him or her. We have stayed very clearly away from time and money cannot be connected. It is a flat credit of - it has no connection to how much time the noncustodial parent has. All too often, if you  say, well, "mom if you have 40 percent of the time in temporary custody, then you only have to pay half the chart amount", then mom and dad will add up the hours, and they'll agree on 39.8, or 40.2, and you'll be down to hours and days, because there's a dollar change to it.

     The legislature instructed us to put all of the assumptions that part and parcel of the guidelines, and we have prepared those assumptions. There's about 17 of them, I think. When they are published, you will, I think, recognize, as we learned, that all of the tax issues that you all have been trying to deal with are part of the assumptions. In other words, who gets the exemption for the child, is one of the assumptions in the calculation of the dollars that are in the chart.

     We have dealt with the day-care, child-care cost of the noncustodial parent, so that if the noncustodial parent is required to work overtime, and incurs cost during the weekend time that he or she has the child, that that day-care cost now may be plugged into the chart so it is, in effect, the same as the custodial parents. It's, again, cost related to the child, that had nothing to do with time, other than the fact that the time you have the child is when you also have to work. We have dealt with issues of overtime.

     HOLLINGSWORTH: And, of employment?

     FRAWLEY: Well, we have.....

     HOLLINGSWORTH: Because that's a real concern. Unemployment compensation when people go from maybe a high wage to zip.

     FRAWLEY: We have not dealt with unemployment. I don't think that that is part and parcel what we can deal with. I think unemployment is an issue under the statute, where you have to show a substantial and continuing change in circumstance, and the issue of unemployment to me is a continuing circumstance. In other words, how long does mom or dad have to be unemployed before he or she can get a modification, and I don't have an answer for what that is. Obviously, it's a substantial change, because you go from making $20,000 to $175 a week or whatever it is.

     HOLLINGSWORTH: So, the soonest we'll probably see anything is possibly as late as April, is what you're indicating?

     FRAWLEY: I would say as late as March. I would hope by the end of the year. At the end of this year. I'm sorry.

     HOLLINGSWORTH: End of this year, ‘97. Okay. Thank you, Judge. Thank you, Mr. Chairman.

     CASKEY: Thank you.

     FRAWLEY: Thank you, Senator. Thank you, folks. I appreciate your time.