Clinic Wins Key Decision in Unusual Custody Case

Custody battle hinges on presumption, not cows

Prof. Gail Hammer

When the decision in favor of the defendant in Akon v. Awan was handed down in Washington State District III appellate court, observers seized on a very distinctive feature of the case - the cows that figured in a disputed dowry.

"Sudan Cows Figure in Convoluted Spokane Custody Case" ran the headline in The Spokesman-Review.

A popular legal blog called the Volokh Conspiracy mused on "The Legal Implications of the '[Non-]Payment of the Remaining Cows Owed the Bride's Father".

But for Gail Hammer, the Gonzaga Law professor and University Legal Assistance (ULA) supervisor who oversaw the case, there was more at stake than unusual dowries. This was a disadvantaged woman's attempt to retain custody of her own children after fleeing violence in her native Sudan.

As Hammer sees it, the court's recent decision was just one more hard-won milestone in a protracted custody battle.

"The case is actually more complex than the Spokesman article," she says. "The fifteen cows were only one of the things that the other side pointed out in the appeal, but it was the thing that the newspapers and the Volokh Conspiracy have glommed onto."

ULA's client, Ms. Awan, escaped her Sudanese village when fighting broke out. Homes were burned, her neighbors killed. She was separated from her husband and oldest daughter during the chaos, and she fled on foot to Khartoum. She carried one child and was pregnant with another.

Once there, she met Mr. Akon, the plaintiff. He helped her and her children escape to Cairo and eventually Spokane. He did so by claiming that he and Ms. Awan were married and the children were his. Forged documents supported these claims.

But Mr. Akon took advantage of that false documentation and Ms. Awan's illiteracy, argues Hammer. When Ms. Awan relocated to Tennessee in 2007, he remained in Spokane and filed for dissolution of their marriage. The children, he said, belonged to him.

The cows that have been the subject of so much sensationalism and debate were used by the opposing party to call Ms. Awan's earlier marriage into question. But this argument actually relied on a unique facet of the legal system called a presumption.

"Although it's not unique to Washington," Hammer explains, "there's this idea in Washington state law that if people are married, there is a presumption that a child born during the marriage is the child of the man."

"Presumptions operate as a way to not have to dig into the facts of every single instance. And that just makes everything easier. You don't have to do DNA testing for every single child born. But part of what we were fighting about was that he was saying, 'Well, look, here's this marriage, so I must be the father of the kids.' Because there was this marriage it creates a presumption."

The appellate court's decision disagreed with the plaintiff's reasoning. The legal opinion stated that "[p]resumptions are the bats of the law, flitting away in the light of evidence."

That unwillingness to yield to presumption is what gave Hammer, her clients, and all the Gonzaga Law students that have helped to research and argue the case their victory.

"Presumptions don't make true something that everyone knows is not true," Hammer says. "There are shortcuts, but we can't let them trump reality."

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