In one custody case I had, the judge made these opening remarks. “God gave you both custody of your children. If you want me to take custody away from one of you, you better have some pretty good reasons.” I represented the fathers’ rights in that case and he got joint custody.

Brenda King did not fair so well when she represented herself and lost custody of her three children in a Washington state case. On appeal, she is arguing the state should have provided counsel to her. The case is being watched closely, by both the government, which may have to pay for lawyers in custody cases, and by the bar which may benefit from it.

Carol Murphy, on behalf of the state, argued in her brief, “The government is not intruding upon any liberty interests of the parents. It’s not taking away any parental rights; it’s merely allocating the collective right.”

We pay judges to decide custody. But is the judge taking custody away from one party or allocating custody between the two parties?