I was on the family law calendar for motions hearings. As people head toward separation or divorce, or work out a parenting plan as part of a paternity action, they hit things they cannot resolve. So one of them files a motion and asks for a judge to make an interim ruling on something. It is also the place to come and ask the judge to enforce orders that the other parent is not following.
If you have ever had a friend who got divorced with children, you know that it is something a parent can talk about for hours on end, days on end. Often, the person listening is a real lifeline for the complaining parent. Just to be able to name and delve into the injustice of how unfair or unreasonable the other parent is being can be such a relief. It is nice to talk to another grownup, and it helps to avoid saying negative things or venting in front of the children. I am not suggesting that venting is a long-term solution, simply that we usually have as long as we need to get our story out, and we get some relief from that.
In court, we also ask for relief, but within such narrow parameters, that many parents leave the hearing raging or crying, or both. I think very few parents come in truly fathoming how little time they will be allotted, and how very narrow the focus must be. A motion is filed and served with 14 days notice. The response is due 4 days prior to the hearing, and a reply is allowed 2 days prior. Everything is in writing, and nothing late will be admitted or even read by the judge. Then you come in for oral argument in open court.
Oral argument is five minutes for each side. Five minutes. You cannot bring up anything new or different than what is in your paperwork. You cannot submit any more proof, or add anything. You are supposed to simply make what amounts to your closing argument, based upon the evidence you submitted: Check stubs, declarations, school records, doctor’s notes. Something you may have complained to your friends about for seventeen hours, you now have five minutes to try and resolve before a judge in open court, with dozens of equally anxious people listening and watching and waiting for their own turn.
One parent was representing himself on this day and trying so hard to explain exactly what he wanted and why. Not everyone is used to speaking in public or planning out an organized speech. Few people even understand what it means to argue upon the evidence versus offering new evidence. Standing scared and humiliated in front of a judge about that most intimate of relationships, our own family, and testifying about how two adults who swore to love each other cannot agree to something like a school vacation is not the best of circumstances. This man tried so hard but the judge had to keep interrupting him and redirecting him until he was finally tongue-tied.
She leaned over from the bench and looked him in the eye.
“Sir, you brought a motion based on your life. Based on what you lived through. I understand that. But I have to rule based on the law.”
I did a series of hearings in a row and they have now blended together in my mind. Was he the one trying to get the passport from his ex so he could take a planned trip internationally? Or was he wanting to be able to attend his child’s soccer games? Did he want to force his mate to sell the family home or at least refinance so he didn’t owe the mortgage? Or did he want to choose the child’s counselor? Maybe he just wanted to have dinner with the child once during the school week.
The paperwork for temporary parenting plans is well-organized and detailed, but most people just have a lawyer check off the boxes, or fill them out randomly themselves. Who gets midwinter break? Who gets which holiday? Does the vacation schedule stay the same as the school schedule? Who gets to make decisions regarding medical care, education and religion? Who cares, when your whole life just fell apart? How can you even begin to fathom whether you want the children for the 4th of July or their birthday? Odd years, or even, or every? There are pages and pages of boxes and boxes, and you just want the whole thing to go away.
So you randomly check the box that says neither parent shall take the child out of state, and then you get offered a business trip to Italy where you can take your children with you at no cost, and oops. You ex says you have not been cooperative, so there will not be any agreement about modifying the temporary orders. And you have to decide whether to forego the wonderful trip opportunity, or go back to court, and argue your five minutes.
And you don’t really understand the law. You don’t know whether the judge is even allowed to modify a temporary parenting plan, or whether you have to wait for trial. You don’t know if the timing of when you found out about the trip matters, or if your ex can give you permission to modify the order, and whether it needs to be in writing. You don’t know what argument would make a difference, and you don’t have time to make it anyway. And you don’t know the law. You just know what you are living through, and it feels like hell.
When you were little, your parents would likely sit down after dinner and make plans for a vacation. There was never a question about who had your passport. The organized parent always knew where it was. There was no question about which parent took you to soccer practice, or what doctor you went to. Somebody decided all of it and it was never an issue. And even when your parents fought about something, it got resolved without a judge. They were able to argue with each other based on their life, based on what they had lived through, and no one told them they only had five minutes. Somehow, for many families, it just all worked out.
I understand that many families have abuse. There are toxic relationships. There are issues of addiction, power differentials, entitlement and control. There are families and children that need the protection of the courts. But for many families where the situation does not rise to that level, the court process essentially pathologizes what was a fairly healthy relationship, and adds an incredible strain upon what was already fighting for survival. I am not talking about the failed marriage, or even the natural end to a successful marriage, but the ongoing co-parenting relationship.
Children do not attend the family law motions calendar. One parent is at one podium, and the other parent is at the other podium. One is respondent and one is petitioner. Some have lawyers and some are pro se, speaking on their own behalf as best they can. The two parents are side by side, and there is a space between them. As I view it, that space holds their child, whose arms are outstretched, as the child is pulled in two directions. And as each parent presents their case, I see that invisible child getting pulled by each hand in a tug of war that threatens to tear that child apart.
I have compassion for the parents, and respect and understanding for the judges. But my heart goes out to the child who is placed in that perilous widening space between the two parents during the court proceedings. Most of all, I fervently wish that there were an easy way to keep that child whole, and happy, throughout the parenting plan process. Because outside of abusive families, I would venture to guess that very few children give a rat’s ass about where they are on any given Tuesday evening, as much as they simply want their parents to get along well enough to keep them feeling safe, and listened to, wherever they are. Not unreasonable requests.