Representation in “Sister Wives” Case

As has been the practice on this blog, I wanted to disclose my representation of the Brown family, who are the subjects of the new series “Sister Wives” on TLC. As in the past, any comments on the case by me will be limited. However, various people have suggested the reported criminal investigation as a subject for this blog and I wanted to explain why I have not posted anything on the controversy.

Bigamy is a third-degree felony under Utah law punishable with up to five years in jail. Prior prosecutions for polygamy have involved allegations of child abuse or child brides, which are clearly not present in this case. The use of this statute to prosecute the Browns would be in my view unconstitutional. It would also end a long-standing policy to confine prosecutions to those who abuse children or commit such crimes as fraud. We are confident that the authorities will find no such criminal conduct in this case and we intend to cooperate to the fullest in resolving any such questions from the State. I hope that the prosecutors will recognize that this would be bad criminal case making bad criminal law. It is, after all, a television show and there is no need to move the matter from the television guide to the criminal docket.

My representation as lead counsel for Kody, Meri, Janelle, Christine, and Robyn Brown will obviously curtail my discussion of the case on this blog but, as in earlier cases, I will not interfere with the discussion of others on this blog.

Jonathan Turley

430 thoughts on “Representation in “Sister Wives” Case”

  1. From the AP

    NAIROBI, Kenya – President Barack Obama’s polygamist half brother in Kenya has married a woman who is more than 30 years younger than him. The 19-year-old’s mother told The Associated Press on Friday she is furious that her daughter quit high school and married the 52-year-old. Mary Aoko Ouma says her daughter tried to marry Malik Obama two years ago, but the mother says she wouldn’t give permission. Malik Obama, who is Muslim, has two other wives. Polygamy is legal in Kenya if it falls under religious or cultural traditions. In an interview broadcast by Kenya’s NTV that was filmed without his knowledge, Malik Obama says he married the 19-year-old but didn’t say when.

    http://news.yahoo.com/s/ap/20101015/ap_on_re_af/af_kenya_obama_s_brother_1

  2. Isabella,

    I think most fathers feel the same way about good fathers, which is why the law has to step in and decide custody disputes.

  3. Actually James I am not making the exact same point in that post and that is causing confusion so apologies. I am responding to your point about the primary caregiver usually being the mother, I agree with you and I was responding to that.
    You were using legal terms and I was using that to support that point.

    However, my first comment to Scarecrow AND the second part of the post to you was responding from a personal bias that despite knowing many good fathers and a couple of really bad mothers, in my opinion I don’t think it is ever justified to compel a good mother to leave her child/ren.

    I am hopelessly biaed I do admit that.

  4. If you referred to them as the “primary caregiver” rather than “the mother” I’d agree with you. However, you’re making your own culturally loaded assumption about who the primary caregiver is when you say “I just don’t think it is in the best interest of a young child to live away from their mother”.

    Other than that, it sounds like we basically agree, except that you’re looking at what happens in most cases, and I’m looking at what happens in the more unusual cases.

  5. @ James

    Yes James, I DO know an unfit mother (well, I must admit, I know more about her, she is the mother of a friends nephew) her son actually decided he would rather live with his grandparents at the age of 12, she used to leave the kids at home and go out to get drunk all night, so yes. I understand they exist.

    I also know some amazing capable fathers whose children are not wanting for anything emotionally.

    I am not talking about the exceptions though and in general, I think taking children from their primary carer for any reason IS terrifically selfish and probably doing the child far more harm in the end. I know that as a mother I have a particular sensitivity in this issue but I just don’t think it is in the best interest of a young child to live away from their mother, however a teenager should be free to make their own choice.

  6. Isabella,

    You’re old fashioned. I think there’s plenty of times when children should continue living with their mother (when they are young, she is fit, and she is the primary care giver, I think it’s almost always true). However, there are stay at home fathers out there, and unfit mothers as well. For those reasons, favoring the mother sucks as a legal presumption. However, that doesn’t mean you can’t consider factors like who is the primary care giver that tend to favor the mother in a traditional, one income family.

  7. @Scarecrow

    > If an individual wishes to leave a marriage they should not be rewarded for doing so with cash and/or kids unless there is abuse involved.

    Call me old fashioned if you will, but young children need to be with their mother, they are not a commodity like cash is either. As bad as I feel about any father not being able to see their children, I do not think it is appropriate to say a woman can’t walk with her children if she doesn’t want to be married anymore. Abuse is not the only deciding factor in the termination of a relationship and as much as I do believe that people should make an adult, responsible decision before they marry, life isn’t always predictable and a woman shouldn’t be punished for making such a hard decision.

  8. “She’d basically be trapped in the marriage forever, unless she was willing to leave her kids”

    Perhaps in a worst case scenario it would appear this way. I personally feel that divorce (poly or otherwise) should follow the lines of what I previously stated. If an individual wishes to leave a marriage they should not be rewarded for doing so with cash and/or kids unless there is abuse involved.

    The first thing I would want to know is why is she wanting to leave the family. The family has supported and provided for her, what has changed that she “wants out”? No marriage situation will ever be perfect, it takes a continuous effort. The family would be doubly hurt if they had to support the leaving spouse; the remaining members of the family would have reduced financial resources with which to support the remaining family members, and the remaining members would have to make up for her efforts around the home, or rearrange their finances if she worked outside the home. No matter how it plays out the remaining family members lose. If she leaves, the family has to make up for the work she did and still support the children. There is no scenario in which the remaining family “wins”. If the woman leaves and gets the kids and cash I would consider that one of the most selfish and damaging things an individual could possibly do.

    I understand how alimony and child support works, it is fairly universal across the US. I think it will be applied in a similar way to how it is currently done with mono couples divorcing, so you don’t have to worry about anyone being trapped.

  9. Addendum to my last post: Florida also just added durational alimony for short- and medium-term marriages.

    Regarding child custody issues:
    Question: “Is your opinion that in any marriage the person leaving the relationship should loose the right to be the primary care giver?”
    Answer: If there is not abuse, removing the children from their other half-siblings and adults they have considered their parents as well would be very detrimental and they would feel isolated and rejected.

    That presumption is never going to be applied. Courts look at what the best interests of the child are, and that standard is not going to change. Best interest of the child analyses are all going to be extremely fact based, but they are not always going to end up with the children living with the plural marriage, rather than the single spouse. There’s a bunch of factors, but some of the ones that could frequently cut towards the single parent would be: who do the children want to live with? Who is the children’s primary caregiver? What sort of relationship exists between each of the parents and the children?

    The desire for continuity is also considered, and would tend to cut toward staying with the polygamous group.

    Now, you know I’m in favor of legalizing polygamy, but you seem to want a policy of: “Once you’re in, there’s no way out.” If things worked the way you seem to want, in order for a parent who spent the last fifteen years raising her children to leave a polygamous marriage, she would have to already have a high-paying job lined up for herself (since there would be no chance of alimony), and would still need to leave her children (because she couldn’t be the primary residential parent). She’d basically be trapped in the marriage forever, unless she was willing to leave her kids. That’s a picture of polygamy that is extremely ugly.

  10. Scarecrow,

    Regarding alimony after divorce for mothers who don’t work outside the home : If she leaves and becomes a financial drain to the family, how is that beneficial to the family?

    You can’t have legal rights work in only one direction. Alimony isn’t always appropriate, but when it is, it needs to be granted in polygamous marriages, just like monogamous marriages. The concern isn’t just for “the family” but for the spouse who is leaving.

    I can’t speak to other states, but I can give you just a couple of quick facts about how alimony works in Florida. Alimony can also be permanent or rehabilitative (e.g. to support the needy spouse while they get an education so they can find a job). Alimony isn’t automatic, it’s based on need. Florida makes presumptions about alimony based on the length of the marriage: alimony is presumptively inappropriate in short marriages (less than seven years) and is presumptively appropriate in long marriages (longer than 17 years).

    Alimony serves a number of functions, but one is particularly important for polygamy: it stops a controlling spouse (normally, a husband) from holding an unhappy wife economically hostage to keep her in the marriage. This is particularly important if the wife doesn’t work, or if the husband controls all the money.

    There’s another, related post coming about child custody.

  11. @ mess…see my reply to James (I know that actual posts relevant to the topic are difficult to dig out of all the crap that has been posted)

    @ Chris

    “I wouldn’t agree to the 1200”

    In that scenario there were 3 working and two at home, a higher ratio of those contributing then a monogamous family with a stay at home mom…thus the higher rate…

    “My problem with this legalization of multiple spouses stems from my personal opionion that having too many children can be irresponsible.”

    This is assuming that the only reason a polygamous family would form is to produce children. What if a man that can’t have children (or doesn’t want anymore) falls in love with another woman and decides to marry her because he loves her? If that happens today he has to divorce his first wife if he wants to marry the other woman that he also falls in love with. Also, there is an abundance of older single women past the age of childbirth because men tend to die younger than women. If an elderly gentleman wanted to take more than one wife are there any particular reasons that he should not be allowed to?

    “Emotionally with 12 children and 6 wives that is 18 people so with working to support everyone if you were lucky you might get one on one time with every person once a month. Again this is just my opinion but I don’t see how you could have a first hand one on one relationship with each person. I also believe this about the duggars though and they aren’t poly.”

    As you already realize in a poly family at least there are a number of moms so compared to a large mono family there is considerably more time available with a parent.

    “But my opinion, first of all a women not earning outside income who spends 20 taking care of the home or homeschooling the children has contributed greatly financially speaking to the family.”

    Agreed, I did not mean to belittle anyone because of their occupation. A stay at home mom still has a “cost” to the family to “employ” her. She has all the needs of anyone else and therefore “costs” the family for her to be a part of it. Her vehicle expenses are likely higher if she is shuffling the kids around. If she leaves and becomes a financial drain to the family, how is that beneficial to the family?

    “Is your opinion that in any marriage the person leaving the relationship should loose the right to be the primary care giver?”

    No, If there was abuse the woman and children should get out. If there is not abuse, removing the children from their other half-siblings and adults they have considered their parents as well would be very detrimental and they would feel isolated and rejected. As it is they will feel rejected by their mother should she leave the family. Polygamy creates a very strong family bond that is different and likely more secure than a mono family can typically provide.

    “Also if the mom left the family are u saying that she would get visitation with all the children or just her biological ones?”

    She should be able to see anyone in the family, and it would be my hope that she would eventually reconcile with the family.

    “In making you case would there be anything else that u would like me to understand before I would make my decision that would apply to all people wanting to legalize multiple marriages regardless of there religion?”

    Well I will probably think of a number of things later as I consider your question, but the first thing that came to mind was to have you consider the reverse scenario. What it there was an abundance of women and poly marriages were legally required (let’s say that first mono marriages would be legal for up to five years then a man would be required to take at least one more wife) and you were expected by your family, friends, and peers to become part of a poly marriage (or remain single), but you for some reason detested the thought. Would you want the law changed so that you could practice a monogamous marriage as you desired to, or would it be fair for the government to force you into a poly marriage?

    There are a considerable number of polys that have nothing to do with the type of poly that most people see played out on the news. Personally don’t agree with the way I see poly practiced based on certain religious doctrines such a the Muslims who condone beating their wives under certain circumstances. I believe poly marriages should follow the same basic standards that mono marriages follow now (abuse, age, coercion, etc…).

    Legalization would considerably reduce the current abuses of the system (again if structured correctly when legalized), and allow women (and their children) legal rights that are otherwise lacking.

    Legalization would allow accurate statistics to be collected.

    Also @ Chris…would I object to my wife having multiple husbands.

    I believe this may have already been addressed, but in the Jewish, Christian, Catholic, Muslim, etc… religions (as well as most cults based on those religions) it is considered adultery for a woman to sleep with a man other than her husband (so the answer to your question is Yes since I am a Christian). If a woman does not claim to be a part of a belief system that prohibits a woman from having more than one husband then it is completely up to her. In some religions it is disputed if a man can have more than one wife, in this case he would need to follow the doctrine of the particular denomination that he was a part of.

    By far the strongest arguments in the courts will be the right to marry, but to me it is a restriction of the free practice of my religion which is supposed to be protected by the Constitution and its amendments.

    Last but not least, I think you will find these videos interesting:

    http://www.youtube.com/user/PolyPride3#p/c/9D7A09FE24C33E64/4/m4tXJTCYFHA

  12. Scarecrow,

    What if one of your wives wanted to take on another husband? Would you have a problem with that?

  13. Elaine,

    Belushi was an Albanian mutant. What Hunter Thompson said about his attorney Lazlo applies to Belushi. He was “one of God’s own prototypes, not meant for mass production.” Not many people can make you laugh by just raising an eyebrow, but Belushi sure could. You can’t train to a talent like that. It’s genetic.

  14. Buddha,

    I agree with you about John Vernon’s acting in “Animal House.” I’m sure it would come as no surprise that I loved the movie too. Speaking of facial reactions–John Belushi did some great “acting” with his eyes.

  15. Blouise,

    I’ll turn sixty-four next month…on the 15th. What’s your birth date?

    I’ll be at the Snarky Little Old Ladies House serving MY double secret probation sentence along with you. You bring the scotch; I’ll bring the bourbon.

    🙂

    I make an excellent homemade blueberry pie with Wyman’s of Maine frozen wild blueberries. They’re actually better for pies than the fresh “steroid” blueberries you get in the supermarket. I use a Fannie Farmer pie crust recipe. The crust comes out delicate and flaky. Oh my, I’m making myself hungry.

  16. Buddha,

    lol – we’ll probably pile the leaves, hide in them and jump out with purses swing

    Trust all is well with you

  17. Blouise,

    “But I might go on an afternoon purse swinging walk with them … the high school track team is out running the streets almost every afternoon.”

    Just remember fall is approaching. There should be plenty of leaves to hide the bodies under. 😉

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