THE CASE PROVING THAT REVENGE IS BEST SERVED WHEN IT ISN’T

High conflict divorces are a Family Court judge’s nightmare – just ask one. Reason and logic vacate each spouse’s frontal lobe to make room for irrationality, intransigence, irrepressible anger, and an overwhelming desire to pound the other into the dust. Often it gets even worse after the divorce is final when they’re back in court fighting over money and the children. We’ve made progress at tamping down these brouhahas, but in my off and on service in Family Court between 1986 and 2002, I spent many anguishing hours refereeing these most unpleasant conflicts. Here’s one of them.

In the early 90’s, I became the fifth, maybe the sixth, judge assigned to this case. At least half of my predecessors had been forced to disqualify themselves for openly losing their temper with the ex-husband – a clear sign I was in for some trouble. For years the husband/father (I’ll call him Mr. Slacker) was chronically delinquent with child support and Mom (I’ll call her Mrs. Cross) was allegedly hindering visitation. When the case reached me, the chicken/egg controversy had long ceased and the issue now was which parent would win the latest battle in the war.

Mrs. Cross was a court reporter in an adjacent county, steadily employed, remarried with a new family, which included her eight-year-old daughter from her marriage to Mr. Slacker. Slacker was single (no surprise there) and spent more time in between jobs than in a job. What really and understandably ticked off Mrs. Cross was that her ex had a Mensa IQ and a college degree, but he continually whined excuses that jobs commensurate with his education and experience, such as it was, were unavailable. All of his jobs were temporary – because he was bound to either quit or get fired – and most of them required only a high school education. Consequently, his wages matched those requirements. His child support payments were irregular, chronically late and almost always less than the ordered amount, so the arrearage grew larger by the month, prompting Cross to file contempt motions about every three or four months. Slacker, who believed he had a great lawyer – that would be himself – would respond with a contempt motion claiming willful denial of visitation.

Slacker relished these mutual contempt of court actions because it gave him an opportunity to royally piss off his ex-wife, face to face, in open court. His gambit was to plead poverty and spousal persecution, making boo-hoo excuses for why he couldn’t find work fitting his potential, and then alleging Cross squandered his puny payments on frivolous personal items. Then came the impassioned soliloquies about not having any time with his precious daughter, blaming Cross for holding her hostage for child support. Cross at first would remain calm during his diatribes, but she could only tolerate his cries of victimization for so long. When her self-control would break down, as it always did, she would join the battle. As she verbally attacked Slacker, he would smugly look at me with an expression that said “She’s quite the nagging bitch, isn’t she?”

Each hearing ended the same way. I would hold Slacker in contempt for deliberately being either unemployed or underemployed. However, Slacker had spent many of his free hours in the law library and knew precisely what would follow. He knew I would not find him in criminal contempt and sentence him to a term of months in the county jail. Although mothers of deadbeat dads often preferred that option, such a move is self-defeating because it assures that the mother will receive zero support while he’s in jail, and once out of jail he might possibly face prolonged unemployment. Slacker also knew that by making periodic, albeit insufficient payments, the mother would have a hard time proving he was willfully avoiding his obligation. He knew that instead I would find him in civil contempt, whereby I would order him to pay a certain amount – an amount which I must find from the evidence that he is presently capable of paying – and he would stay in jail until he paid it. Once paid, he is released. To prove ability to pay, Cross would sometimes subpoena payroll records from his employer, but by the time those records made it to court, Slacker had already lost that job and he would submit his own self-serving financial affidavit claiming abject poverty. As a result, I was forced to pull a number out of thin air, usually an amount in the neighborhood of one week’s pay. By the time I got home that evening, Slacker had miraculously come up with the cash to satisfy the purge and was already out of jail. He was definitely a clever deadbeat and he used his Mensa brain to game the system, something he enjoyed more than being a good father and a productive citizen.

As expected, Cross was getting fed up with civil contempt, and wanted him locked up for six months, not so much to teach him a lesson, because she knew he was unteachable, but simply to have a taste of retribution. Her frustration with the child support collection process was mounting, and her anger was growing at each successive hearing, not only with him, but also with the court, that is, me. Her snide comments in my direction told me how unhappy she was at the system’s failure to satisfactorily hold him accountable. Still, I refused to use criminal contempt because I knew retribution had a very short shelf life, and it would wear off long before his release from jail after months of receiving not a penny in child support.

Moreover, Cross herself was not totally innocent. She constantly came up with excuses for why Slacker could not spend time with his daughter. As any court reporter knows, delinquent child support is not a defense to withholding visitation, despite being the self-help remedy most often used by angry, frustrated mothers. Knowing that, she claimed she was not holding her child hostage against the child’s wishes, but that the child flatly refused to see him, and she repeatedly claimed she couldn’t physically force her eight-year-old daughter into her father’s car.  Slacker screamed parental alienation, a very convenient hypothesis, but hard to prove without third-party witnesses or an expert. Slacker had neither, so it was always a he-said-she-said duel between two overwrought, uncredible parents. All I could do was admonish Cross to work at changing the daughter’s mind, and maybe a restoration of visitation would motivate Slacker to be more compliant with child support. Cross would shoot back an expression which said, “Yeah. Right!”

At our last contempt hearing, which was, as always, progressing badly, I got tired of doing nothing except calling balls and strikes and occasionally giving useless pep talks. I decided I needed to plant a seed in their conscience. I told them their daughter is going to grow up believing all male-female relationships are supposed to be toxic and destructive, and she would likely wind up in a marriage like theirs, and it will end the same way. Her self-esteem was being destroyed because she believed it was her fault that Mom and Dad fought all the time. I even hinted, or expressed outright, that their behavior is tantamount to emotional and psychological child abuse. Mr. Slacker’s reaction was typical: it isn’t his fault; it’s all her fault. Mrs. Cross just glared at me and said nothing.

A few weeks later I got a letter from the Florida Judicial Qualifications Commission, the organization that investigates and prosecutes judges for ethical violations. Mrs. Cross had filed a formal complaint, alleging that I insulted and defamed her in open court during that recent hearing. The JQC asked me for my written response. I wrote and told them what I said and why I said it. A couple of weeks later I received a letter from it saying there was no probable cause to initiate a disciplinary proceeding for alleged abuse of my judicial office.

Judges are cautioned never to make ad hominem comments – words that denigrate a person’s character, as opposed to criticizing their conduct. It’s okay to say, I think what you’re doing is awful; it’s not okay to say, You’re an awful person. Despite being vindicated by not crawling into the ad hominem ditch, I decided that in order to avoid the appearance that I might seek retribution against Cross, I would recuse myself and let another judge take over. That was the last I ever saw of Slacker, thank goodness. But this is not where the story of Mrs. Cross and me ends. Let’s now fast forward approximately ten years.

*          *          *

Mothers and fathers with long-term, unresolved drug habits are likely to permanently lose custody of their children by having their parental rights terminated. As a judge now assigned to the Juvenile Dependency Court, I had a case come before me where seriously addicted parents were about to lose their fourth child, an infant boy born prematurely and addicted to drugs. I’ll call him Caleb. Years before his birth, in a separate case in an adjacent county, his three older siblings had been placed in foster care. When that family got word of a fourth child, they asked the Florida Department of Children and Family Services (DCF) to place Caleb in their home with his three siblings. DCF declined because the family was only licensed for three children. Instead, Caleb was placed with a nice, young couple who chose to become foster parents because they could not have children of their own.

When Caleb’s mother was released from the hospital, she disappeared and was never heard from again. The father was in jail. Because of the biological parents’ chronic drug use, DCF decided to file an expedited petition to terminate their parental rights to Caleb, but then DCF decided to hold off for a while because Dad had become a model prisoner, had completed drug rehab and parenting classes while incarcerated, and was about to be released early for good behavior. The day of his release I was conducting a review hearing in Caleb’s case. Dad appeared in his jail attire and promised to work hard to achieve reunification with Caleb. After his release that evening, he likewise disappeared.

It was time to terminate parental rights and place Caleb for adoption. By this time, Caleb’s the three older siblings had been adopted, and the new parents were again begging to foster the now one-year-old toddler. DCF was very satisfied with the care given by the young foster parents, and once again turned them down. Upset by DCF’s unwillingness to place the youngster with his siblings, they hired a lawyer to petition my court to intervene in the case. At the hearing on their petition to intervene, I entered the courtroom and immediately recognized my old nemesis – Mrs. Cross . . . angry, vindictive Mrs. Cross. It was she and her second husband who wanted to foster, and eventually adopt Caleb.

Mrs. Cross surely recognized and remembered me but seemed to act as though we had never met. However, as it is my duty, I disclosed that Cross had a previous case before me and had filed a disciplinary action against me. I stated that was old news and I did not regard that as sufficient grounds to recuse myself. Cross now had a “we’re screwed” look on her face. I don’t know if the Crosses discussed with their lawyer the filing of their own motion to have me disqualified. The lawyer, both experienced and respected in the community, probably warned them that if they’re going to take a shot at the king, be absolutely certain the shot will be fatal. No motion to disqualify was filed.

The Crosses hired an expert to testify on the importance of keeping sibling groups together. Moreover, it’s the official policy of the State of Florida that sibling groups be kept together whenever possible, but such a policy can be overridden if it’s not “in the best interest of the child.” DCF had previously argued that very point with me many times, but not here. They put on evidence that Caleb was getting excellent care, was thriving, and had bonded with his foster parents. Thinking it would not hurt to test the expert’s testimony, I ordered a visit between the four siblings, supervised by a trained visitation supervisor. The visit went very well. The three elder children instantly adored Caleb and Caleb reciprocated. I granted the motion for the Crosses to intervene, which allowed them the privilege to participate in all proceedings going forward regarding Caleb.

By this time, all parental rights had been terminated and Caleb was now available for adoption. Both the young foster parents and the Crosses petitioned the court (me) to adopt Caleb. As required by law, DCF assembled their adoption team to investigate, make home visits, read the case workers’ notes, review judicial findings of fact, and study written reports and depositions of experts; then they meet, discuss, and make a recommendation to the court. Meanwhile, I had ordered that Caleb have unsupervised visits at the Cross home, daytime visits at first, then overnight, and I allowed the Crosses’ expert to observe.

This case would put nature versus nurture to the test. Despite some of the empirical evidence that blood is indeed thicker than water, my experience told me it depends on the blood. Some blood is indeed thick, while in other cases I’d rather have wolves raising children than some of the biological parents I encountered.

At trial, DCF recommended that the foster parents adopt Caleb and allow frequent contact with his siblings. The totality of all the evidence, thoroughly and professionally presented by both sides, convinced me that I could write an order placing Caleb with either family, and no appellate court would touch it. That’s how close the evidence was. I knew both families would devotedly care for Caleb and act in his best interest. It was up to me, however, to decide which family would better serve his best interest, and one fact stood out above all others. While Caleb was a contented, well-cared-for child in his foster parent’s house, Caleb felt truly at home in the Cross family with his three blood siblings. As expected, there were no appeals. This time, blood indeed triumphed over water.

A few months later Caleb, Mr. and Mrs. Cross, and all their children, six in all, appeared in my courtroom for Caleb’s final adoption hearing and becoming their seventh child. One of those six children was that eight-year-old child Cross and Slacker fought over like cats and dogs ten years earlier. She was now 18, overweight, withdrawn, and still living with her mother. After the formalities, my custom was to have an informal celebration. Sometimes it’s a brief mix and mingle; other times it’s a party with food, beverages, and even a cake to celebrate the child’s new birthday. I finally got a chance to speak with Mrs. Cross off the record. She never came out and said it, but she implicitly showed gratitude for me not taking revenge against her for dragging me before the Judicial Qualifications Commission ten years ago.

Judges who hold grudges risk destroying both their careers and their health. Begrudged judges who take revenge do not deserve to hold the office, and those who do rarely have long tenures in office. I was blessed that I couldn’t hold a grudge for twenty-four hours, much less ten years. In my line of work, revenge is best served when never served.