Family-law
attorney Richard S. Victor is on a mission: to change both
the public's and the profession's perception that divorce
attorneys occupy the lowest rung on the legal ladder.
For 25 years,
Victor has exclusively practiced family law. His first case,
which he took pro bono, was on behalf of a grandmother who
wanted visitation rights with her grandchildren.
Victor's
tireless dedication to his practice is primarily reflected
in programs he has helped develop for divorcing parents. The
first, Start Making It Liveable For Everyone (SMILE),
celebrated its tenth anniversary in 1999 and went national.
The second, Co-Parenting Effectively (COPE), was formed this
year with the help of Oakland County Circuit Court Chief
Judge Edward Sosnick and many volunteers.
Additionally,
Victor is the executive director and founder of the national
nonprofit Grandparents Rights Organization (GRO). The
organization had hoped to file an amicus brief in the case
of Troxel v. Granville, soon to be argued before the U.S.
Supreme Court, but the organization was not able to meet the
filing deadline. Victor is extremely concerned about the
ramifications of that case because he says it has been
"mischaracterized" by the national press as a grandparents'
rights case. According to Victor, the case is really about
the "overbroad language" in the state of Washington's
visitation laws, which say that "any person at any time" may
file for visitation rights.
Q.
A program that you codeveloped, Start
Making It Liveable For Everyone (SMILE), is now in its tenth
year. Tell me about the program and how it's progressing.
A. We created
a video when I was president of the Family Law Section in
1991-92, and now the program has gone national. Most people
don't know this, but the SMILE program was originally
developed as "post-divorce education," to be used by people
after a divorce judgment is entered.
We had a
period in the very beginning when we sat down to discuss how
the SMILE program was progressing, and we decided we needed
to make changes. So we changed the program from post-divorce
education to education immediately after a divorce has been
filed.
In a divorce,
nobody tells you the rules. The SMILE program teaches the
rules and what happens when you break the rules; not
necessarily what happens to the parents, but what sort of
effect it will have on the children.
Q.
Is the SMILE program a success in other states which have
used it?
A. I was the
keynote speaker at the Arizona State Bar Convention in June.
I literally had rough, loud lawyers who defined themselves
like that to me crying when they saw the SMILE video and I
explained the program. They applauded the idea, commenting
that it was really just common sense.
Q.
Did you retain the copyright to the
SMILE program?
A. Judge
Sosnick and myself and the people involved in helping to
create this program have decided that there is no
proprietary interest for any of the developers. Judge
Sosnick and myself donated our copyright to SMILE to the
State Bar of Michigan. We made sure that no one can make
money off these programs.
Q.
You also helped develop the
Co-Parenting Effectively (COPE) program this year. Tell me
about that.
A. Chief
Judge Sosnick formed the steering committee that put the
program together. We're still in the developmental stage in
Oakland County, and we will be reviewing the COPE program to
see how it is working, and if it is assisting in the
resolution of issues.
COPE is not
mandatory but is highly encouraged. It's a form of
alternative dispute resolution and it is more intensive than
SMILE.
The process
right now for COPE is that parents with minor children must
go to an early intervention conference in Oakland County
within two months of filing for divorce. The lawyers and the
parties meet with the caseworker or referee assigned to the
judge's docket. All the parties involved determine what is
going on in the case, and then try to determine if a
referral to a caseworker is necessary. If there is no
agreement about the parenting schedule, the order is entered
and they meet with a caseworker.
Oftentimes,
the caseworker is able to sit down and resolve things. If
the caseworker sees that there are significant problems
which may require a therapist or psychologist because of
emotional problems or accusations, then they'll be referred
to the COPE program.
Q.
What happens after a referral is made
to COPE?
A. The
parties meet with a therapist for half-a-day with no
lawyers. The therapist then assists them to try to come to a
resolution or at least an understanding of what is going on.
After the half-day session, either an agreement is reached
and the lawyers have 14 days to object, or the therapist may
say that there are problems that need a full-blown
psychological evaluation.
Working with
a therapist helps the parents see each other's perspective.
It opens lines of communication, so that long after the
lawyers and the judge are out of the case, the divorced
parents still have those rules and assist their own family
the correct way.
COPE helps to
cut down costs of some custody cases by using ADR and having
the parents work together to reach a resolution. Only those
who are referred to COPE pay $500, which can be split
between the parties equally or broken down accordingly due
to a disparity in income.
Q.
What is your role in COPE? Will you be the "national
spokesman?"
A. I've been
appointed as the state COPE chair by Gerald Gorcyca, who is
the president of the Family Law Section, and if the program
is indeed successful I've been asked to form a statewide
COPE program similar to what we did with SMILE. If it takes
off statewide, I will lecture to academic groups and bar
associations around the country. If it works, we will put it
out there nationally.
Q.
How are children brought into the
SMILE and COPE programs?
A. The
children are not brought into either program directly.
Instead, they are affected indirectly by the results of the
program's success on their parents. SMILE gives the
divorcing parents education to know what the children are
going through at the different developmental stages of life
and how they deal with it, and what the rules to live by
are.
Q.
In addition to co-developing the SMILE
and COPE programs, you are the founder and executive
director of the Grandparents Rights Organization. The U.S.
Supreme Court is scheduled to hear oral arguments in Troxel
v. Granville, a Washington state case which involves a
grandparent's request for visitation rights. Tell me about
the GRO and that case.
A. In the
case, the father of two girls ultimately committed suicide
in 1993. He and the mother were never married. When the
couple separated, the father went to live with his parents
and the girls regularly visited him there and developed a
close, nurturing relationship with their grandparents. After
the father died, the girls continued to see the grandparents
regularly until the mother stopped the visits.
In 1995, the
grandparents went to the state court in Washington and
obtained visitation rights under the third-party visitation
law. The mother did not make any allegations pertaining to
physical or emotional harm to the girls if they continued
the relationship, but she appealed the court's opinion
saying that she would be the one who would make the
decisions for her children, not the court. While the case
was pending, she got married and the husband adopted the
children.
The matter
was first heard by the Washington appellate court, and then
went to the Washington Supreme Court. Both of those courts
granted the mother's petition, saying that the law in
Washington which allowed the grandparents to ask for
visitation was unconstitutional.
Q.
How so?
A. What is
unique here is that the law in the state of Washington says
that "any person may petition the court for visitation
rights at any time including but not limited to custody
proceedings. The court may order visitation rights for any
person when visitation may serve the best interests of the
child whether or not there have been any change of
circumstances."
The
Washington Supreme Court held that the law did give the
grandparents standing. But the court also held, by a narrow
5-4 decision, and I quote, "The statute violates the
parents' constitutionally protected interests. These
statutes allow any person, at any time, to petition for
visitation without regard to relationship to the child,
without regard to changed circumstances, and without regard
to harm."
Q.
Grandparents' rights brings up many issues, primarily the
fact that there are many "nontraditional" families,
including single parents, step-parents, lesbian couples and
so forth. How do we, as a society, define what a family is
and to whom do we extend visitation rights?
A. Do you
define family from the eyes of the parent or the adult? Or
do you define family through the eyes of a child? In every
divorce case, we have the same question. The reality today
is that we have significantly complicated family structures
because of divorce, people not marrying, single-parent
families, remarriages that create step-families, and people
who have abandoned or are unable to care for their children
because of drug or alcohol dependency problems. To ignore
that reality is to ignore the reality of what the American
family is today to children. It's their family.
We're hoping
that the U.S. Supreme Court will recognize that the concept
of family is as important now as it always has been, and
that it has been redefined because of reality.
Q.
Some people would disagree with you
about grandparents having visitation rights. How would you
persuade them otherwise?
A. First, we
need to determine if the relationship is in the child's best
interests. Then we need to ask, "Should there be a path
through the court system to give standing to these adults to
ask for visitation with the condition that it must be in the
child's best interests?" Courts do not come willy-nilly and
say "Yeah, fine." They look at best interest factors very
carefully before judges make decisions affecting children.
It's not a small standard.
These best
interest conditions are significant safeguards but, in my
opinion, you need to have a path to get to the court system
in order to "force" family members to talk.
Q.
What changes would you like to see to visitation laws?
A. Michigan
laws are a problem because we still do not recognize the
rights of children out of wedlock. If a child does not live
in the intact family because of divorce, then there is a
right for grandparent visitation. But if the child is not
living in the intact home because the parents never married,
then there is no right for grandparent visitation. In my
opinion, there's no logical explanation as to what the
difference is in the eyes of the child.
House Bill
4283, which will create rights for children who are born out
of wedlock and the right to have grandparenting time, is
pending in the Michigan Legislature. We are asking the
Legislature to move on this bill because we aren't asking to
expand the rights. From my perspective, it only creates
equality for children who are born out of wedlock.
Q.
The public's perception of attorneys,
especially divorce lawyers, is predominantly negative. What
are you doing to change that perception?
A. You are
100 percent right about the public's perception. But one
thing I've found lecturing nationally is that fellow
attorneys hold the same negative perception as the public.
It is so sad because, of all the areas of law, the one that
has the greatest impact on the family for generations is
family law. One of the things I try to do is to educate
lawyers as to how important they really are and, because
they are so important, they must practice family law
differently than any other area of law.
Q.
What do you mean by "practice
differently?"
A. Lawyers
who practice family law should never be involved in a
mindset of winning or losing. They must go in and attempt to
resolve dysfunctional family problems and property right
interests so that both mother and father who will be dealing
with each other for the rest of their lives because of the
connection of their children and potential grandchildren do
not disrespect each other. If you don't have the ability to
handle that stress and emotion, or if you don't have the
empathy to feel for the family, choose another area of law.
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