The Deronda Review
PRECIOUS LITTLE BABIES:
Lessons From Family Court
Judge Richard Ross
(A longer version of this work was previously published in audio CD form and is available from the author.)
CHAPTER THREE: Violence At Home
I’d settle for decent behavior. Oh, do America’s families fight! I don’t mean just fuss, quarrel, insult, and dispute. There is plenty of that and it is bad enough for kids. I’m talking about breaking the peace. Collision. Threats, scuffles, fisticuffs, brawls, injury and near-injury. Weapons. Things broken. Police at the door.
And children cringing, crying, and cowering.
Violence is so commonplace in our homes, on our streets, and in our history, literature, and popular entertainment that we seek no explanations or reasonable contexts for it. We expect violence to occur. It simply is.
To me, that is unsettling enough. Yet even more startling is our acquiescence in this shared character trait and state of affairs,
Why don’t we have zero tolerance for violence? Let’s face it: Inestimable damage results to children from the violence they experience directly and absorb from our culture.
Here is one way I learned that this is true. For three years I presided as judge in Manhattan Family Court’s Domestic Violence Part. The New York Lawyers Committee Against Domestic Violence gave me their “In The Trenches Award For Indomitable Courage, Vision and Dedication To Ending Violence Against Women.” Thousands of cases involving family violence came to the court during this time. I appreciated the award, though I wasn’t aware of being indomitable. I was too busy deciding the cases.
New York’s Family Court Act defines “family” for domestic violence purposes as including spouses and ex-spouses (with or without children), unmarried couples with children, any other blood-related individuals, and a variety of other individuals in certain kinds of “intimate relationships” described in the statute. The typical way in which the New York City Family Court handles a domestic violence case is for the judge to accept from the accused, ninety percent of whom are men, a “consent without admission.” By accepting this consent, a judge may issue a protective order to the victim without taking any evidence about the events that caused her to seek legal protection. The case moves quickly, the victim obtains her order of protection, and the accused leaves no trail of misconduct on the court record. Everyone is satisfied, sort of. Next case.
This was not my way. Yet, I intend no criticism of other judges. Naturally, judges bring differing approaches and styles to judging. A judge’s comfort with a particular decision-making process helps prevent the judicial muse from departing the robe. For myself, I stopped accepting most consents without admission. I wanted to find out what was going on in the household. I would ask the adults questions and make specific findings of fact. I might interview the children. This method yielded better ideas for me about how to fashion orders that protected the children and, perhaps, saved the family.
The things I learned. When nine year-old Alysha’s mother walked into my courtroom one snowy January morning, she seemed like anything but a battered woman. As a court officer was leading her and her husband – Alysha’s step-father – to their places, the couple was laughing at some private joke. I read the court papers that Alysha’s mother had filed. The allegations were minimal, unspecific. She requested an order of protection for “the insults and threats” that Alysha’s step-father had been making at home “over the past year.” In fact, the petition was sufficiently minimal and unspecific for me legally to dismiss the charges without holding any evidentiary hearing at all.
I said to them: “Folks, you both have the right to have lawyers to help you with this case. I can appoint them free of charge if you qualify for that, or you can hire lawyers, or choose to speak for yourself. Ma’am, do you feel you need a lawyer before you speak to me?”
Alysha’s mother said: “Your Honor, I want to drop the case. That’s why I came this morning. I don’t need a lawyer.”
Swiveling in his chair at the litigation table across the courtroom on my right, Alysha’s step-father was looking at his wife and nodding.
“Well, what made you change your mind, ma’am?” I asked her.
“Nothing. We talked. Everything’s going to be all right now.”
“What exactly is the nature of these threats your husband has been making? What does he say when he threatens you?”
“Your Honor, I really don’t want to go into it. I just want to end this.”
“Ma’am, do you understand that by withdrawing this case you will no longer have the temporary order of protection that was issued to you when you were here by yourself three weeks ago? It expires today.”
Standard fare. Half of New York City Family Court’s domestic violence cases end with an in-person withdrawal of the case or a no-show.
But not this one.
In my book, A Day in Part 15: Law and Order in Family Court, I explained that I had come to understand the job of judging as a professional athlete or entertainer might. I wrote: “The proper measure of job success was not in the occasional sparkling performance or dud. Rather, the goal was to bring forth consistently good-quality work: reliable, finely-honed basic chops, as though I were a top-flight studio musician.” The disciplined (albeit exhausting) application of standard procedures and tactics for finding the facts and arriving at decisions, case after case, year after year, yields the self-confidence required to trust one’s technique, instincts, and judgment during a busy, complicated day on the bench.
Something about the presentation of Alysha’s mother had the warning lights flashing on my judicial instrument panel.
I said to her: “Ma’am, your court papers indicate that you have this child, Alysha, who lives with the two of you?”
“Is she here in the courthouse today, by any chance?”
“Yes,” Alysha’s mother said, pointing at the courtroom door. “She’s out there with my sister.”
“In the waiting area.”
“All right, I’m going to ask the two of you to have a seat in the waiting area, if you would, please. I’m going to have someone speak with the child and report to me before I permit you to withdraw the case.”
They looked at each other.
“Judge, you don’t understand,” Alysha’s step-father said. “We came to drop the case.”
“Sir, your wife filed the case, not you, so it’s not yours to drop. And it’s not yours to drop any more, either, ma’am. The law doesn’t require me to approve your application to withdraw.”
Alysha’s mother jerked out of her seat. She was tall and slim. She stood, glaring at me. I noticed the high style of her black suit. “Your Honor,” she said, “I told you I don’t want to go ahead with this case and I’m leaving. It’s over as far as I’m concerned.”
She had come to court with a dark fur coat and now she draped it over her left arm. Putting her pocketbook on her shoulder, she began to move towards the courtroom door.
“Ma’am, this case will be called before me again in approximately thirty minutes. If you fail to appear, a warrant will be issued for your arrest. Your daughter will be interviewed immediately. Sir, all of that applies to you as well. Both of you are now excused until the recall of the case.”
Cases were on the calendar that day involving fifty-nine children in thirty-two separate families and I had managed to handle three of the cases before the lawyer I appointed to represent Alysha came back to the courtroom.
“Judge,” she said to me, “about that little girl?”
“Ms. Klein, the parties have no lawyers. You know I’m not permitted to get into the details with you alone. We have to get the parties back into the courtroom.”
Alysha’s lawyer pursed her lips and nodded, looking grim. “I know, Judge. I just wanted to let you know I feel strongly you ought to talk to this kid in the back first.”
.Several minutes later, in the robing room with Alysha, her lawyer, and the court stenographer, I was inquiring of this smart, ultra-thin, adorable girl.
“Alysha, how are things at home?”
The girl shook her head, saying nothing and with her eyes on the floor.
“Is anything happening there that you want to tell me about?”
She remained mute, her head down. I stared at her. Moments passed. I was aware of a sharp focus to my vision and of an odd hiss within the soft silence of the room and . . . eerie . . . my arms had goose bumps and the hair was standing on them and then, looking over at Alysha’s lawyer, I felt a shiver pass through all of us. I looked from one robing room door to the other to assure myself that they were closed, but it was too late. In the room with us was . . . something terrible.
“Alysha,” I said.
Her face, bleak as hunger, came up slowly. The child looked at me for a few seconds, then began to scream.
She was still screaming when Angela, my court officer, came through the robing room door from the courtroom some seconds later.
“Judge, what’s going – ”
“He tried to kill my mommy!” Alysha shouted.
Angela grabbed her arms and knelt in front of her.
“He tried to kill her!”
“Alysha, honey, it’s okay, it’s okay,” Angela said, her face close to the child’s. “We’re not going to let anything happen to your mommy or you. It’s okay.”
“I don’t want to go home any more! Don’t make me go home!”
Angela turned her head and looked up at me.
“I think we need to get her upstairs to the clinic,“ I told Angela, and looked over at Alysha’s lawyer.
“I agree, Judge,” the lawyer said.
“He put his thing in me!” Alysha screamed, and then we got her out of there to a hospital.
I issued an arrest warrant for the step-father, who had left my courtroom with no intention of returning. The New York City Administration for Children’s Services filed a child abuse case on behalf of Alysha, who went into foster care. The police found step-Dad.
Reasonable people disagree about the appropriate extent of a Family Court judge’s reach when a person alleging family violence seeks to withdraw a case. Courts “infantilize” victims, some say, when we take over as decision-maker for them. Others maintain that courts “empower” victims when we provide a forum for protective relief by refusing to permit them to withdraw their cases.
For cases in which children are involved, the debate misses the point for Family Court judges. The law instructs us to put the safety and well-being of children first. Especially in cases of alleged family violence, however, the necessarily quick judgment about which situation is critical, and which may be safely let go, is often less than obvious from the scanty information in the case papers.
The black robe spreads over a gray world.
Many family violence cases involve a threat to injure or kill rather than physical assault or attempt to assault. On the night seven year-old Roberta’s parents argued over the bills that had arrived in the day’s mail for two of her mother’s charge accounts, her father yelled: “I can’t stand it any more. I swear to God I’m going to kill you if this keeps up.” At least, so said the petition of Roberta’s mother seeking a protective order. In addition to this incident, the court papers alleged nothing beyond name-calling, which, however hurtful, was not by itself grounds for court relief in these circumstances.
“I want a lawyer,” Roberta’s father announced immediately in court.
“What do you do for a living, sir?” I asked.
“I’m an unemployed orthopedic surgeon.”
“I’m an unemployed surgeon,” Roberta’s father repeated, his mood a bad night’s sleep past nasty.
“What does that mean?”
“Just what I said.”
“When was the last time you performed an operation?”
“November. I’m not affiliated with a hospital any more.”
Here we were in February. “Well, are you on unemployment?” I asked.
“What was your gross income last year?”
“Ninety thousand dollars.”
“And this apartment that you live in with your wife and daughter. Do you own that?”
“It’s a co-op.”
“Sir, I can’t appoint a state-paid lawyer for you. That’s reserved for indigents.”
“I have no money,” the doctor said.
At which point Roberta’s mother said: “Judge, it doesn’t matter. I don’t want to go ahead with the case anyway. It was just an argument over money. Let’s forget it.”
“Then why bother bringing me here in the first place?” the doctor said, turning towards his wife.
“Because I’m tired of your – ”
”Folks, folks, stop it,” I broke in. “Talk to me, not to each other.” My voice was stern, controlling the courtroom. My court officer had moved behind the two of them, standing in the three-foot space between their chairs and the back wall of the courtroom.
Although I was unaware of having made a decision, I already knew where I wanted to go with this.
“Ma’am, I won’t permit you to withdraw this case. I’m seeing too much anger here this morning and this child Roberta is involved, right? She lives in the home with the two of you?”
“Yes,” Roberta’s mother said. “He’s always screaming and yelling around the house. She’s terrified of him.”
“I want a lawyer,“ her husband said.
“Sir, you should bring your lawyer to court tomorrow. I’m ordering a child protective investigation into the circumstances in the home. I will expect a preliminary report tomorrow from the New York City Administration for Children’s Services.”
“Child welfare is going to investigate because I yelled at my wife? That’s outrageous.”
“Sir, be cautious in your statements to me. This is a courtroom, not your kitchen. Bring your lawyer tomorrow, please. Ma’am, is Roberta here today?”
“Please have the child at the courthouse tomorrow. I’m appointing a lawyer to represent her.”
Next day Roberta turned out to be lacking sufficient sleep, smart but failing in school, and obese.
And whipped by Dad with a belt once or twice most months over the past two years.
I didn’t have to go in the robing room with Roberta. Something about Roberta’s parents gave me the willies. I appointed one of the best children’s lawyers in the courthouse to the case. You could give the Nobel Prize in chemistry for the ways she related to kids in court. The information she gleaned from Roberta resulted in the City of New York filing a child neglect case against Roberta’s father. The case charged what New York law defines as “excessive corporal punishment.” Roberta’s mother was charged with child neglect, too, for failing to protect Roberta from her father.
As it turned out, Dad had been smacking Roberta’s mother around for years.
The case never went to trial. Roberta’s father admitted everything and moved out. I issued an order of protection on behalf of Roberta and her mother. A divorce ensued. Roberta and her mother obtained counseling. The child’s emotional health improved. She slept better and lost weight. Her grades improved as well. After a year, I dismissed the case against Roberta’s mother, leaving her record free of child neglect. From the inception of the case, she had done all the right things for Roberta and for herself.
No equation solves the problem of when a woman is a victim not to be held legally responsible for harm to her child inflicted by the child’s father during the mother’s watch. Judges decide things case by case. After a year of evaluating Roberta’s mother, I decided that at her core she always wanted to put Roberta first. She had gotten in over her head. Her request for the order of protection – the very act of filing the Family Court case – was a brave cry, however halting, for the help that ultimately saved her daughter and herself.
One afternoon in court I asked the mother of six year-old Cynthia about her habit of spanking her daughter’ buttocks with a sneaker. Cynthia’s parents were divorced. The child’s complaints to her father during visitation had brought him to Family Court seeking legal custody of Cynthia.
My conversation with Cynthia’s mother in the courtroom went like this:
“I don’t understand, ma’am. Why would you hit your daughter with a sneaker?”
“Because it’s soft.”
“I’m sorry, ma’am. My question wasn’t clear. I mean, why hit her at all?”
“I don’t hit her. It’s just a spanking.”
“Well, whatever you call it, why?”
“Because she does things that piss me off.”
The honesty of the mother’s answer absolved the inelegance of her language. There it is, at the moment of physical violence towards a child: the parent’s flash, the drawn face and tense muscles, the mind rushing but without thought.
Which is why theoretical discussions about whether it is appropriate to discipline children physically – whether to “spare the rod and spoil the child” – are fatuous. The discussions don’t describe what is really going on. Certainly a child is frightened, perhaps terrified, in those moments. Physical pain aside, just the bizarre, craven match-up of Godzilla versus Bambi would make any child freeze or quake.
But the parent is also afraid. Confident parents don’t threaten to hurt each other or their children. They don’t bark, shout, or throw things about. They don’t crowd, poke, shove, grab, choke, slap, punch, kick, whip, stab, or shoot the ones they love. A light rap on the behind is appropriate in an emergency to teach a tot not to run into traffic, or to use a finger to explore a light socket, or some such similar lesson. Any other physical punishment reveals a frightened parent who has lost control.
Fear’s rage can run hot or cold. Not all frightened parents rant and rave. Fifteen year-old William’s father tied his son’s wrists to a shower curtain rod for two hours. Saying nothing and taking breaks now and then, he punched, slapped, and kicked him for running with a gang. Several days later, William told the school nurse he was thinking of killing himself. The nurse asked why. Within the hour the school was calling child welfare officials.
“What would you suggest that I have done, Judge?” William’s father challenged me. “My son was going down the tubes. Nothing worked. Next thing he’d have been in jail or dead. You’re saying I should have given up?”
I made no response. His extreme acts provided no basis for reasonable discussion. Moreover, because clueless protest is common among people with the violence virus, I was not surprised by his comment.
Lots of people visited my courtroom, spurred by Manhattan’s center-of-the world reputation, interest in family law and family issues, and, yes, curiosity about the site of Judge Judy’s daily paces, at the time she was a real judge, in the courtroom I inherited from her. In 1997, revised court rules helped to change the public’s perception of New York’s Family Court as a closed venue. The first sentence of the new rules announced: “The Family Court is open to the public.” And the public came.
The new access rules were controversial then, much less so now after a decade of experience. Some still feel that Family Court proceedings should be private. Airing a family’s dirty linen in public may cause psychological harm, the argument goes, particularly to the children. In particular cases I agreed, and the rules were sufficiently flexible for me to exclude the public under certain circumstances. Yet, taxpayers paid me. The courthouses belong to the public. They have a right to know what is going on with their justice system.
Unfortunately, I could permit no more than several observers at a time because the courtroom was small. On the day I handled William’s case, a woman and a man from a “citizens’ court watch” group were on hand. The group wrote reports, used by executive branch officials and state legislators, to critique judicial performance.
During a break, the two asked to speak with me in the robing room.
“So, are you enjoying the show?” I asked them in the back.
“I can’t believe it, Judge,” the woman said to me. “That man actually thought he was doing the right thing, torturing his son like that. I wanted to throttle him.”
Interesting comment, I told myself.
“Stick around,” I said. “You can’t make some of this stuff up.”
We went out into the courtroom.
“All rise, come to order,” the court officer said.
I stepped on to the raised platform of the bench. Across the courtroom to my right was this huge man. He seemed to be spinning like a pulsar in his misery, signaling for help. His wife looked weary, worn as an old coat.
I sat. The man and woman took the oath and got themselves settled. I told them about their right to counsel. They didn’t want lawyers. The husband wanted to talk.
“Judge, I only want to tell the truth here. I need you to understand what’s really going on. I – ”
”Sir, you’re way ahead of me,” I interrupted. ”Slow down, if you would. You’ll get your chance.”
“But – “
”Sir, excuse me, please,” I said and turning to his wife said: “Ma’am, this is your husband?”
“How long have you been married?”
“And you have this four year-old daughter at home with the two of you?”
“So tell me what happened that brought you to court for an order of protection.”
“He choked me and shoved me into a wall the other night.“
”That’s not what happened, Judge – ” her husband broke in.
“Sir, excuse me again,” I said, turning to him and holding up my right palm. “It’s important for you and for me that you don’t interrupt. Let your wife speak. You’ll have your opportunity, I promise you.”
He shook his head, taking an exasperated breath.
“The other thing, sir, is that potentially you intimidate the witness by this behavior. I really want it to stop, please.” Then, to his wife: “Go ahead, ma’am. Which night did this happen?”
“Two nights ago. I was getting my daughter ready for bed. He came into her bedroom and started to argue with me.”
“He didn’t like the way I was handling a situation with my daughter. He was telling me what a bad mother I was and shouting and just going crazy. Finally he grabbed my throat and pushed me across the room. I slammed into the wall. He let go of my neck and shoved my chest. I started screaming.”
“Your daughter was there for this whole incident?”
“How did it end?”
“I ran out of the room and called the police. He left before they got there.”
“Were you injured?”
“Not really. Just scared. He’s done this before.”
“How many times?”
“When was the time before this?”
“A few months ago. And about a year before that.”
“What did he do a few months ago?”
“It’s always about the way I relate to my daughter. He interferes. If I complain he starts yelling and shoving me around. I’ve had it.”
“Were you injured on that occasion?”
By this time her husband had turned his head towards the wall so that his wife and I were out of view.
He turned back to me. He was sure big.
“Your turn. What happened the other night?”
“Judge, this is always about the same thing. Whenever my daughter gets a little out of hand my wife hits her with a slipper.”
“My wife’s bedroom slipper. My daughter’s not easy to get to bed. That’s when this usually happens. She starts rapping her with her slipper. My daughter starts howling and I get between them. I’ve told my wife a million times that’s no way to discipline a kid.”
“How long has she been doing this?”
“Since my daughter was about a year old.”
“Yes. It’s nuts. I finally got tired of it.”
I was noticing that both of them referred to the little girl as “my” daughter. There was more than one “I” in this team.
“Did you get physical with your wife the other night the way she says you did?”
“Yes. I didn’t really choke her. I grabbed her neck with one hand and shoved her with the other.”
“And a couple of months ago?”
“Same thing. I didn’t hurt her. I’m not going to let her hit my daughter any more.”
“Where have you been staying the last few nights?”
He named a hotel. I turned to his wife. “Ma’am, you’re going to get an order of protection. What your husband did to you is called Harassment in the Second Degree. The question is, do you want to try to work this out at home?”
“I don’t want him back there.”
Her husband sighed. Watching him, I realized he was about to cry.
A family was breaking up. Certainly the couple’s little girl, whose name was Lynn, loved her Dad. Adored him, no doubt. Her father, her protector.
Dangerous ground, cautious steps.
“All right, folks,” I said. “Here’s the arrangement for the next couple of days. I’m going to have you back in court before the week is out. Sir, you stay in the hotel. I’ll order a visit with your daughter between now and then. You have any relatives in New York City?”
“All right, the visit can take place there. Ma’am, the child welfare agency is going to be doing an investigation into the corporal punishment that’s alleged by your husband. And I’d like you to bring your daughter to court. She’ll be represented by a lawyer next time. I want to suggest strongly that you both consider bringing lawyers of your own. I can’t say for sure today where this case is headed.”
The woman said: “I can’t believe this. I come here for protection and you put the child welfare people on me.”
“Why can’t I go home, Judge?” her husband said. “All I was doing was protecting my kid. I didn’t hurt my wife.”
”There’s going to be a cooling off period, at the very least,” I told them. “Don’t underestimate the risk, sir. Next time you lay a hand on your wife I can put you in jail for up to six months if she proves it to me. Not to mention that one of these times you might do some real physical damage. And ma’am, if it’s true that you’ve been hitting your daughter with a slipper for the last three years, I’m going to be taking steps to assure that you don’t do that any more.”
Several days later, Lynn’s lawyer was telling me that leaving her father would be pure heartbreak for the little girl. The Administration for Children’s Services told me they did not feel a child neglect case was in order. In the agency’s opinion, the extent of the corporal punishment and domestic violence that their investigation revealed was not actionable, to use the legal term, although the agency was sufficiently concerned to assign a caseworker to provide counseling referrals and to monitor the family. Meanwhile, Lynn’s father had moved to his mother’s apartment and filed for legal custody of his daughter.
“Your Honor,” Lynn’s lawyer told me in court, “if the mother is determined to live separately, then I recommend you give her a final order of protection and award temporary custody of Lynn to her father pending a trial. This child does not want to be apart from her father under any circumstances.”
“In that case, he can come home,” Lynn’s mother said. “Just tell him to keep his hands off me, Judge.”
“Tell her to keep her hands off my daughter,” her husband said.
My stomach growled. I wondered if anyone heard it. It was near lunch. I had a sandwich in my little refrigerator in chambers.
In that moment I decided that Lynn’s parents did not want to lose their family and could be trusted to control their fears.
I told them: “What the two of you need is somebody to talk things out with. Sir, you can go home in thirty days, provided counseling has begun for the two of you. Your wife will have an order of protection, so you are going to have to learn to calm down. Or you’ll end up in jail. And lose your daughter. Ma’am, you almost lost custody of your daughter just now. You need to learn new ways of thinking about and controlling your behavior. There is to be no hitting this child. It’s bad for her and it provokes your husband. Sir, whatever you believe the provocation is, don’t attack your wife again.”
They left. I was breaking for lunch and the two court watchers who were observing the morning session were leaving for the day. On their way out of the empty courtroom the woman said: “Judge, I wouldn’t want your job for anything. What a terrible case.”
“Garden variety, actually,” I told her. She walked out shaking her head. I went upstairs to my chambers. Across the street was the New York City Criminal Court. I stared at it for a little while.