"On the plains of Oklahoma, with a windshield sunset in your eyes like a watercolor painted sky, you'd think heavens doors have opened."
Fly Over States



Friday, September 12, 2008

Siss Boom Bah

We are at the end of a very long week. I’ve gotten quite a few new cases during the past few days and have had some pretty grueling trials. I’m beat and need to unwind. No quilt blocks, tonight, although this may be the night I need them most.

Frequently, in the course of a custody/visitation case, a parent solicits numerous members of the community, i.e., pastors, employers, neighbors, family members, etc., to come to court and testify that they are a fine person and a good parent. Any lawyer worth their salt would scare up character witnesses on behalf of their client. In the right circumstances, a herd of well dressed, clean, law-abiding individuals appearing in support of a parent can be helpful, although if a parent is doing his job, you may not need more that one or two.

The problem, from my point of view, is that sometimes, when you are dealing with a seriously flawed parent, the kinder thing a pastor, neighbor, friend or family member could do would be to sit them down for a Come-to-Jesus talk. It is good thing for any parent to be the recipient of the experience and wisdom of successful members of the community. After all, as adults, we all have a stake in how well children are cared for. Little Junior may well end up marrying little Susie and raising your grandbabies. Moreover, you darn sure want him to be working when you are old and need his contributions to keep the social security checks rolling in.

Unfortunately, once a parent starts gathering a personal cheering section, (that frequently has been filled with half truths about one parent and whole whoppers about the other), the parent easily convinces himself that he is the “good” one and the other parent is the “bad” one. He wraps himself in an image that may not bear much resemblance to the truth. Telling his story to his cheerleaders, in a way that will encourage them to see him in a good light and be willing to vouch for him to the court (which is pretty intimidating for some) frequently results in a personal narrative in which he is the protagonist. In short order, he has told his tale enough times that he actually begins to believe it even if he started out deliberately leaving out some facts and exaggerating others. Once a parent gets into this mindset, the likelihood of growth as a parent diminishes, significantly.

A healthy dose of introspection is generally a good thing, even for exceptionally good parents.

If someone is counting on intimidating the other side by hordes of character witnesses, they are likely to be disappointed. Any attorney used to litigating is unlikely to have much angst about standing up in court. Moreover, we attorneys are trained to slice and dice and do it for a living. Further, the rules of the game are such that the attorneys control the questions asked as long as they are relevant. As officers of the court, we are entitled, even obligated, to track down information to its source. Just as soon as a character witness admits he/she doesn't have a point of reference to compare one parent to the other, it is all over, at least in terms of being a smoking gun. Once they testify that they have an opinion about the other parent and admit the information upon which their opinion is based is second hand, generally on the say-so of the parent for whom they are testifying, their credibility as a character witness is all but non-existent. Testimony that the parent has a reputation as being honest is frequently the easiest to discredit if the character witness hasn't been given the truth from the parent who called him.

There are other perils to practicing for court by playing to your fans. I don't know how many times I have had a parent take the stand in front of all his supporters (who he insisted stay in the room), and repeat the tale he has shared with them so many times that he has come to believe is true. The more often he has told the story, the more glib he sounds as he confidently repeats what he has said, before. He smiles, he looks relaxed, he looks - dare I say - smug. He has been playing to an easy audience for quite some time and they all bought into his version without a lot of trouble. Under direct examination, things go well. After all, his attorney is the one asking the questions. He sits back with a small smile, looks opposing counsel (or the guardian ad litem) straight in the eye and waits for for their questions. I once had a dad actually say, "Hit me with your best shot."

The Judge was not amused.

I was.

Unfortunately for the parent who has, er, played with the facts, it all falls apart and fairly easily. The more he lies, the more he attempts to avoid answering, the more he attempts to rephrase the question to one he wants to answer, the more he has to explain what was really happening, notwithstanding what it looks like, the worse it gets. Watch the judge's posture, he'll be shifting in his seat and getting agitated. If opposing counsel is questioning the parent and the judge is looking at the guardian ad litem to assess their reaction - turn out the lights because the judge is looking for confirmation that he isn't the only one who isn't buying the parent's testimony or is utterly put off by it.

When a parent makes sweeping, general statements, all you usually need to do is ask for specifics. I am always surprised that THEY are surprised at being pressed for specifics. But they usually are. Personally, I believe that is because, as I mentioned, they have been playing to an easy audience whose inclination is to give them benefit of the doubt; who lack the authority to pin them down on the facts; and who lack enough knowledge of the facts to recognize when the parent is not being completely candid. Being skeptical is not a quality that is highly valued in the general population. Most people much prefer folks who are accepting and trusting. These types are frequently invited to come to court as character witnesses.

If the court doesn’t agree with this parent’s assessment of his parenting ability or application, the parent frequently runs to his personal cheering section and spreads the word that he has been lied about, that money has surely changed hands and the judge (and frequently - okay, usually - the guardian ad litem) is utterly incompetent. It is human nature for members of the cheering squad to say, “There, there you poor thing. How could this happen? An injustice has occurred!” Even if they have doubts about the parent, few people will kick someone when they are down by suggesting that maybe (god forbid!) the court made the right decision. At best, they are likely to mutter that it is just a shame. At worst, they will praise the parent to the highest heavens and insist that the court must be blind, stupid or corrupt and the child will suffer as a result.

Now tell me, just how likely is it that a parent will make adjustments when the people he turns to for comfort assure him that he is fine the way he is and that it is all a travesty? It is next to IMPOSSIBLE to see a heartfelt, consistent turn around under those circumstances. So as a guardian ad litem, I tend to feel a bit disheartened when a parent who needs to turn things around shows up in front of his own personal marching band.

I’m not saying the court doesn’t make mistakes. I am certainly not saying that a guardian ad litem doesn’t make mistakes. Most of the time, however, if the court makes a ruling that genuinely catches a parent by surprise, particularly if the guardian ad litem was upfront about making a recommendation that didn’t jive with what the parent thought should happen, there is a pretty high likelihood that the parent has not been honest with himself. Or his support group, if he has one.

Speaking only for myself, the only people I would vouch for as a character witness in a custody/visitation case would be my kids. Since I am their mom, the court probably wouldn’t put much stock in what I had to say, anyway.

2 comments:

Anonymous said...

Penny...will you continue to do your job when you move? Or is that true-blue retirement? the children of the country will miss you!

I was asked to be a character witness once for a CPS case once. While I didn't think the parent should have the children removed from her custody, she wasn't being the parent I thought she should be. But the SW clearly didn't want this case on her load (or was super dense....), but I strictly answered her questions, and quite often said..'she doesn't do things like I do them....' and the SW just jumped to the next question. Whatever. Like I said...she wasn't abusive, per se...just a bit neglectful maybe. But now the kids are big enough to technicaly take care of themselves, although I don't think kids should have to do that. and they moved away, so I don't know anything about anything anymore...and like it that way!
You are a good person.
Your surf and sand stars are making me crazy! I seriously need that fabric!! Fantastic work!
-karol

Penny said...

Karol, I kind of doubt I will continue to do GAL work, at least full-time, once we move. It is pretty stressful and sometimes it is good to take a break to recharge your batteries. Most people I know who started this work when they were right out of lawschool, say, mid twenties, end up only doing it 2 - 4 years before the give it up. Some return to it years later. By the time we move I will have been doing it many years, nonstop and it will just be a good time to let it go to recharge. I will be close enough to actual retirement that it would be nice to do something a little easier on the heart. I doubt I would have enough time to recharge and get back into it before "real" retirement occurred. At least that is my thought, right now. We'll see how I feel, then.

I'd hate to be a witness. Before I was a lawyer I had to be deposed and it was very stressful.

I really like this fabric, too. I wasn't sure I would but am glad I ended up going with it.