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.
|
