Catholic Legal Assistance Ministry, St. Louis, Missouri

     I'm telling you this, because I think it's important you know the perspective that I'm coming from.

     Working for the Catholic Church, you can imagine when I first told the Bishops that I was going to have to start taking divorce cases, because that's where the need was, what their reaction was. They were not happy with me and they thought that by doing this, the church was advocating divorce, and so the compromise that we reached was I would only take those cases where there was a compelling need. So, I don't divorce people just because they don't like the way each other looks anymore or because they're tired of each other. I only get involved in those cases where there's a compelling reason to get these folks divorced. There has to be some sort of abuse going on in order for me to even to look at the case to see if I'm going to take it or not.

     I've been doing this for about ten years, and, last year, we closed, my ministry closed about 700 cases. So, you can see I've had a lot of experience in this area.

     I'm here today to recommend, very, very strongly against the presumption of joint custody. If you start out with a presumption of joint custody, you're asking me to completely change my strategy when I try a case. Right now, we have best interest of the kids. So, when I try a case, the evidence that I put on, has to do with the child, and what the child's life is like, what their average day is like. I bring in their teachers. I bring in their scout masters, and we talk about what's going to be best for this kid. If you start with a presumption of joint custody, my fight is going to change from talking about the children to talking about why the parents don't get along, to the point that joint custody is not going to work for them, and so the complete focus of the trial is not going to be talking about the child and what's good for them, we're going to start talking about why the parents hate each other, and that's going to be my evidence. That's going to be what my witnesses talk about. That's going to be what my cross examination is going to be about, and so a situation that's already bad, we're just going to make worse, and the judge is not going to be able to think about the child. The judge is going to have to think about well, which parent is the less heinous?

     I would recommend, very strongly, if you're interested in this, to read this book, Second Chances, and this is a study that was done. It talks about what happens ten years after we get these folks divorced. Well, authors of this book are big proponents of joint custody. They think joint custody is good. They think if the parents agree to it, if it's a voluntary thing, but there's statistics in here that point out if it's court ordered joint custody, if one parent does not agree with it, or the judge just can't agree and this is something that the judge imposes on this family, it's an absolute disaster for the kids, and this is a study that's been done over ten years. So, if you're interested, I would strongly recommend this book, and does anybody have any questions?

     YECKEL: I have one.

     DOUGHERTY: Please go ahead.

     YECKEL: You testified that you don't think there should be a presumption of joint custody.

     KENYON: Definitely not.

     YECKEL: What about, if you've been here for the last two days, you've heard that most of it, is the mediation process with an agreement arrived at by the two parents, which would imply, then, voluntary. Would you think that would work?

     KENYON: I think it would depend on the parents. I think any time you have forced anything, I represent a lot of battered women. So, battered women in mediation situation is a ridiculous proposition, because they're not coming into it like this. So, I think anytime you have something from the court that says this is mandatory, be it medication, be it joint custody, be it whatever, this is not a situation - we're dealing with people's lives here, and I don't think you can put down this is what works for everybody, because it doesn't.

     YECKEL: No, I don't think anybody thinks it's going to work for everybody. But, see, your population is very specific. You've already testified that you see only those very dire cases.

     KENYON: Right, but that law would still apply to my population. If you put it at statutory, a presumption of joint custody or mandatory mediation, it would apply to my population, and, in both of those cases, my population, and more specifically,  the children, would suffer.

     YECKEL: Wouldn't the courts be obligated not to award custody to abusive parents if you had a battered mother, or a battered father, since I've been listening today?

     KENYON: What do you mean by that?

     YECKEL: Well, would a judge give a child to someone who was abusive?

     KENYON: As the law stands right now?

     YECKEL: Right.

     KENYON: Well, I would hope not. But, if you're.....

     YECKEL: But under presumed joint custody, you think the judges would have to do that?

     KENYON: I think, no. I certainly don't think the judges would have to, but I think the initial fight that I'm going to have will be completely different. Instead of talking about the child which is what we do now as long, because it's in the best interest of the child, we would have to start out our trial talking about if you have this presumption why the parents don't get along with each other and we don't even get to the child and the child's best interest until I've rebutted that presumption of joint custody.

     YECKEL: So, maybe we can't tailor all the laws for all the cases.

     KENYON: Right, but I think if you have best interest of the child, you're giving the lawyers a lot more leeway to tailor their case, tailor their evidence to the case.

     YECKEL: The lawyers or the judges?

     KENYON: Both.

     YECKEL: Both.

     KENYON: Any time you have a presumption in the law, whether it be a presumption of custody, whether it be a presumption of anything, you're narrowing the judges in their discretion what they're able to do, and as we see with mandatory sentencing, a lot of times that can be a disaster.

     YECKEL: Well, absolutely. We've heard testimony about statistics though, and whoever files first, almost 90 percent will get the child.

     KENYON: So, what does that mean?

     YECKEL: Well, is there a solution to that?

     KENYON: Well, I think if the parties can agree, you put on your evidence, and if it just turns out that the judge agreed that the child was where he should have been all along, that's great. I don't know if you can tie in the 90 percent to this presumption of joint custody is going to change that.

     YECKEL: No, it seems like a problem to me, and I'm certainly considering the joint custody.

     KENYON: But, I don't understand why you think the presumption of joint custody is going to change a 90 percent figure of whoever files first.

     YECKEL: Well, right now, if you file first and get the child under joint custody, you and your husband would have equal access, would that not be right?

     KENYON: No. You would start out with that presumption, but then if your lawyer felt like it wasn't in the best interest, that's what your fight would be about, that you couldn't do joint custody. So, I don't know if that's necessarily true.

     YECKEL: So, that would be the alternative, I guess. Thank you.

     DOUGHERTY: Representative Hollingsworth.

     HOLLINGSWORTH: Thank you. I guess I'd like to preface my comments with you represent and your organization does a terrific job for many people in the state, but what I want to ask you is, have you guys, do you represent men?

     KENYON: Sure.

     HOLLINGSWORTH: Do you represent, generally, battered men?

     KENYON: Not generally, definitely not.

     HOLLINGSWORTH: Well, I mean, you've indicated that you assist in the dire cases, and implied physical abuse.

     KENYON: Okay, most of the cases that I have that I represent men at this point, are men who are the primary custodians. I do mostly children's work. So, I represent people who ......

     HOLLINGSWORTH: When children are in danger.

     KENYON: Right, right. So, most of my cases, I don't think I represent anybody at this point who is a man who is not the primary custodian. Most of the cases where I represent men, they're the primary custodian, and I file for custody for them for various reason, either mom is unfit or the children have always been with dad, and are doing great.

     HOLLINGSWORTH: You had indicated that you had closed 700 files.

     KENYON: Last year I closed 700 cases, right. I'm the only paid person, but I have about 50 lawyers who volunteer for me.

     HOLLINGSWORTH: To help?

     KENYON: Sure.

     HOLLINGSWORTH: And, how many of the 700 were tried?

     KENYON: Generally, my case load on domestic, it's about 90 percent of my case load is domestic. I would say 15 to 20 percent of them end up in trial, which is higher than the average domestic lawyer, but it's because of the nature of my cases why I have to try more than the average lawyer.

     HOLLINGSWORTH: You know, and I think you've highlighted a very good thing that we have to be cognizant of, if we do move toward presumption or rebuttable presumption of joint custody. Yes, your focused when you try a case is going to change. However, for that population of people, I don't know if you can give a presumption, because then we're going to have people filing abuse allegations more than they already do if you say unless there is physical abuse allegations, then you don't have to the rebuttable presumption. That's not going to work either, but, to all these other people who are going through a divorce, do you really have a problem with anything without abuse situation that the parents shouldn't come in equal at the same ability?

     KENYON: I have a problem with presuming anything when you're dealing with child custody. I have a serious problem with that. I don't care if you're presuming joint custody. I don't care if you're presuming belong with their mother. I mean, there's always been, I think anytime you're dealing with a child's life and you presume anything, you're asking for trouble.

     HOLLINGSWORTH: Going back to Senator Yeckel's comment, though, about who files first, the result is whoever files first gets custody.

     KENYON: Don't you think some of that stems from the fact that the people who have custody may be the ones that are more concerned about their children and the situation? I don't know.

     HOLLINGSWORTH: No. No. No, I do not agree with that. That may be the case in some of them, but that's a generalization that I would totally disagree with. It can happen out of vindictiveness. I'm asking you what would be your recommendation to help in that situation? Whoever files first gets custody of the kids, that is a statistic that does exist. Substantial statistic.

     KENYON: I don't think that you can - a rebuttable presumption  on joint custody is the way to handle it. I think if you wanted, Judge Frawley talked yesterday about his, if you're having a problem with visitation, you come in, he's got a thing now in division 15, where on the day that you file you can set up a parenting plan. That can be the way to go, is to make mechanisms. I mean, the problem with that is, you don't have people running to court every day and how on earth are these judges supposed to handle that? But, I just think any time you presume anything in children's lives, you're asking for trouble.

     HOLLINGSWORTH: Regardless of whether a presumption is in the state statute book, there are presumptions out there that are occurring, and that's why this I think this committee has been formulated, because there are presumptions out there, throughout the state, that are being used, and that's what we're trying to address.

     I wanted to ask you one other question. The 700, is it within your catchimanary, for lack of a better word of what, St. Louis metropolitan region, or what, state of Missouri.....

     KENYON: No, I wish. We go down as far as Perryville, Perry County. The Archdiocese, which is a nine-county area.

     HOLLINGSWORTH: Okay, in St. Louis. So, of the 700, how many, I mean, within that area, I mean how many divorces are filed, within your area? For example, total number of divorces filed in the Archdiocese, what, 10,000, perhaps, and your group, your ministry......

     KENYON: Oh, no, I think there's 10,000 divorces filed in St. Louis County.

     HOLLINGSWORTH: Okay, but your ministry helped in, last year of 700 of those?

     KENYON: No. 700 is my total caseload. I do food stamps. I do public benefits. I do landlord tenant. I think probably 80 percent, 90 percent of my caseload is domestic. I do a lot of guardianships of minors, children whose parents are gone or dying, you know, grandparent's visitation rights.

     HOLLINGSWORTH: Okay, so the 700 is not specific domestic, divorce, or child custody.

     KENYON: No.

     HOLLINGSWORTH: Okay, thank you.

     KENYON: Oh, no, the majority, but not the whole thing.

     HOLLINGSWORTH: Okay, I want to make sure I understood that. Thank you, very much.

     KENYON: Okay. Thank you.

     DOUGHERTY: Any other questions? Thank you, very much. Although I did say that was the last one. I saw someone come in. Was that Mr. Minx? We passed you by - are you Mr. Minx?