by Sue Miller
Fine stood, silently and quickly. “Your honor, I object to this line of questioning. It’s not relevant to the issues involved in this case, to any of the issues around custody.”
Muth held his graceful hands out, palms up, to the judge. “Your honor, Mr. Fine and his client are trying to demonstrate a moral weakness in my client. Surely I can . . .”
“I’m going to sustain the objection, counselor.”
Muth lifted his shoulders, perplexed. After a moment he looked at Brian again. “Mr. Dunlap,” he asked, “have you ever heard of Oedipal feelings in children?”
“Yes.”
“Can you tell us what those feelings are?”
“They’re feelings of attraction in the child to the parent, to the parent of the opposite sex.”
“That’s right,” said Muth, in his friendly, agreeable way. “And did you know that your little girl, Molly, is at an age when those feelings are strongest for her?”
A pause. “No. I don’t know that to be true.”
“That’s what the books tell us, the experts,” Muth said and lifted his shoulders again, as though helpless before this horde of experts. “Now, doesn’t it seem to you, then, that a good deal of your daughter’s interest in your body and in what might be your sex life, et cetera, is natural?”
“It is not natural, no.”
“That it springs from this very natural attraction she has to you, a wish, even, to be, in some sense she doesn’t understand, married to you?”
“No, I don’t believe that.”
“You don’t believe Molly has Oedipal feelings?”
“I don’t believe that’s what, they’re what made Molly do what she did or say what she did.”
“So you believe in Oedipal feelings, but you don’t believe Molly has them, is that correct?”
“I . . .” Brian’s mouth tightened. “I know Molly has Oedipal feelings. I think her behavior stems from something else.”
“I see,” said Muth. His head bobbed slowly. “O.K., well, let’s ask about some other behavior that distressed you, Mr. Dunlap. Let’s ask about these sleep disturbances.”
“O.K. by me.”
“Now, Mr. Dunlap, you describe Molly as having problems sleeping now.”
“That’s right.”
“And you trace this to the beginning of my client’s relationship with Mr. Cutter.”
“Whatever his name is.”
“His name is Mr. Cutter.”
“Whatever.”
“That this was the major disruption in her life.”
“Yes, being exposed to their sex life, yes.”
“Now, Mr. Dunlap, it is the case that Mrs. Dunlap has been the major psychological parent of your daughter, Molly, since her birth, is it not?”
“I don’t know what you mean by ‘psychological parent.’”
“Well, really,” Muth’s hand looped around in the air, “the parent who did the most for her, to whom she was most attached.”
“I did a great deal with my daughter.”
“But your working hours were approximately what they are now, were they not?” Muth seemed genuinely perplexed, confused.
“Yes.”
“And she went to bed somewhat earlier as a younger child, did she not?”
“Yes.”
“So you saw her, perhaps, less than you’re seeing her during this present period?”
“Yes. I suppose so.”
“And far less than Mrs. Dunlap did at that time.”
“Yes. Except on weekends.”
“Mr. Dunlap, will you describe your pattern of visitation with Molly since the divorce?”
“I have rights to see her one night a week and every other weekend, and for eight weeks vacation time during the year.”
“I don’t mean as they’re written, Mr. Dunlap. I mean as you’ve exercised them since you moved to Washington.”
“I’ve seen her about once every three weeks for the weekend, and we had her for a week at Christmas.”
“Except you missed a couple of those weekends, didn’t you? Of those every third weekends.” Muth was suddenly sharp, sarcastic.
“I might have.”
“So it might be more like once a month on the average that you actually saw her?”
“I . . . yes.”
“So Molly has actually moved to an even more absolute dependency on her mother in the year since the divorce, hasn’t she?”
“I wouldn’t say so, no.”
“Oh,” Muth protested, as though Brian wasn’t playing fair. “But wouldn’t you say that my client was the really available parent figure during all this time?”
“No, because I have a strong relationship with Molly, and I saw her consistently throughout this period.”
“About once a month.”
“Yes.”
“So that as this pattern became clear to Molly, what she must slowly have been facing and realizing is that your arrival meant that her mother, on whom she depended for everything, would go away, is that right?”
“Is what right?” Brian’s voice was flat with irritation.
“Isn’t it correct that it was, in fact, your not seeing the child very often, and then the loss of her mother when you did come, that upset Molly?”
“No.” Brian shook his head vigorously.
“The effect, in other words, the delayed effect of the divorce itself?”
“No.”
“And isn’t it a fact, Mr. Dunlap, that having wanted out of this marriage so you could marry your present wife, you are now blaming your ex-wife for the effect of the very divorce you initiated, in order to try to take her child away from her?”
“No.”
“And that the reason Molly has so much trouble sleeping at your house in Washington is that she misses her true psychological parent, her mother?”
“No.” Brian swung his head. “No.”
“O.K. Well. O.K., Mr. Dunlap. Let’s take another tack here.” Muth stroked his hair back. “Were you aware that Molly had a book which explained sex to her?”
“No.”
“You were not aware of that?” Muth sounded surprised, nearly hurt.
“No.”
“Were you aware that the day-care center had done a project on anatomy, body parts, with the kids, which included sexual parts?”
“No.”
“You were not aware of these events in your daughter’s life?”
“No.”
“So you were not aware that the book she had read frequently at home, a book highly recommended by child psychiatrists and pediatricians as being nonthreatening, easy to understand, actually had drawings of the sexual parts, and of a male erection? That Molly had known about this from her reading, from this book?”
“No.”
“Well, now that you have been made aware of this, Mr. Dunlap, doesn’t it seem clear that Molly’s preoccupation with sexuality, with your body and her stepmother’s, might have had a great deal to do with these learning experiences, rather than anything else?”
“No.”
“No what?”
“No, that’s not clear to me.”
“I see,” Muth said, gently shaking his head. “Well, that’s all.”
Fine got up again, seemed even smaller, darker, tighter than he had before. He asked Brian to describe my apartment, which he did, accurately; to talk about my work, my childcare arrangements. Brian said that even before the divorce I’d had Molly in day care part time, while I was teaching, and that now she was there every day from eight-thirty to five-thirty.
Fine said that was all.
The judge took a break after this. The clerk and the policemen talked loudly across the room to each other. “How many with milk?” one of the cops asked, walking towards the door.
“Three,” the clerk answered. The double door swung, thumped behind me just as the doors in the other room had.
“How do you think it’s going?” I asked Muth. He was flipping through his note
s.
“O.K. O.K.,” he said thoughtfully. “He’s good, your husband. But we got our points, I think.”
“What comes next?” I asked.
“Their shrink,” he said. “Dr. Herzog.” Muth had told me that Brian had hired someone else to see Molly after she’d seen Payne. A doctor in Washington. “Standard operating procedure,” he’d said. “I’d do it too. No one’s gonna go in there with empty hands, with the guardian’s report against them.”
After the break, Fine put the psychiatrist on the stand. He was a far more impressive figure than Dr. Payne. He had silver-white hair, a thick drooping mustache, a long pink nose like a crooked, beckoning finger in the middle of his face. He wore a tweed suit. Twisting my sweaty hands in the overheated room, I wondered how he stood it.
Fine led him through a presentation of credentials that seemed endless. Muth stood up once and said he was prepared to grant that Dr. Herzog was well-qualified; but Fine said he’d like to enter the doctor’s credentials anyway, and the judge let him.
Then Fine established that Herzog had seen Molly twice, talked once to Brian and Brenda. He asked the doctor to describe Molly. Herzog said she seemed immature for her age, though she was bright, clearly above average in intelligence. He thought she was an unusually flirtatious little girl, both with himself and her father. He described his process of getting to know her, said that not until the second hour had he given her anatomical dolls to play with, said she was consistent in reporting and in acting out with the dolls the way she’d told Herzog that she’d touched Leo. He said she’d exhibited extreme anxiety when asked to talk specifically about the event, anxiety which was typical of a child her age to whom such an event had, in fact, occurred. Fine asked how she displayed that anxiety. Herzog described her as being silly, changing the subject, prattling baby words. Twice she had gone to the door, he said, to be sure her father was still in the waiting room.
In his opinion, the doctor said, she’d been exposed to a level of sexual activity not customary or healthy for a child her age, and she was manifesting symptoms of that overexposure.
“And what about the issue of Oedipal attraction to her father?” Fine asked. “Could that account for some of her behavior?”
“Well, as for the Oedipal stuff, yes, it’s her age,” the doctor said. “But because of that, she more than ever needs . . . I mean, this is a crucial time, when the child comes to grips with these impulses, and has to learn. It’s part of the struggle to develop her identity, this understanding of her separateness from her parents, that she can’t have or be in that adult world. All that inner turmoil is only confused by the message she’s been getting from that adult world. She needs those limits set.” He shook his head, and narrowed his eyes. “I see a little girl very much at risk here, very much confused about her own power, her own seductiveness. I see some very inappropriate behavior.”
Had the doctor observed her with her father and stepmother?
He had. And at Fine’s request he described his impressions of their relationship, of Molly’s dependence on them, of their stability.
Based on all this, could he form any opinion as to what award of custody would be in the best interests of the child?
“I feel I can form such an opinion.” Herzog spoke with a strong sense of theater. His voice rang out.
“And what is that opinion?”
“That taking into consideration the child’s fragile emotional state, the clear indicators that she has been exposed to an inappropriate level of sexual activity on the mother’s part, my recommendation is that she continue to live with her father as she has for the last two months. The stability, the clear and appropriate limits the father is able to set with the child, the order and discipline in the household are obviously important, and will be very important, to the child’s development.”
“And would visitation with the mother be important as part of this custody arrangement?”
“Oh, yes, very important,” the doctor said generously. “It’s crucial that she not feel abandoned. But also, and more importantly, it’s essential that she live with a parent who gives her back her childhood. Who says, ‘Here’s the line.’” Dr. Herzog opened one hand and sliced across it with the other. “‘I am the adult, and my sex life is over here, with me. You are the child, and it’s not your concern.’ The other is,” he shook his head, “not good.”
“That’s all,” Fine said. “Thank you, Doctor.”
Muth took over. He shambled up to the doctor, seemed almost apologetic about having to ask questions. He inquired whether Herzog had read the report of the guardian ad litem. Herzog had. He asked whether Herzog was aware that the guardian had recommended I get custody.
He was, Herzog said.
Muth asked whether Herzog hadn’t felt a little handicapped in making his judgment, by not being able to see me. Herzog said he felt, on the basis of what he observed in the child, that he could fairly recommend custody go to Brian and Brenda, that it was clear to him that in my home she had been exposed to an unacceptable level of sexual activity.
“Your opinion, based on . . . ?”
“Based on my observations, on what the little girl said to me.”
“But not on having seen or talked to Mrs. Dunlap?”
“No.”
“Would you have been in an even better position to justify such an opinion, Doctor, if you had seen Mrs. Dunlap?” Muth was ingenuous.
“I suppose so, but I have no . . .”
“So that the guardian, who in this case did see Mrs. Dunlap, really was in a better position to come to that type of conclusion?”
Herzog frowned at Muth a moment. “He might be.”
“Thank you. Ah, have you read the book, Doctor, Beyond the Best Interests of the Child?”
“By Goldstein, Freud, and Solnit?”
“Yes, that’s the one,” said Muth, as though delighted to have something in common.
“Yes, of course.”
“Are you aware, Doctor, of the importance they give in that book to the idea of continuity of caregiver?”
“Yes, but in my opinion, the risk here is great enough to offset that advantage.”
“But, Doctor,” Muth frowned, confused, “wasn’t it their point that we should stop thinking of risks as offsetting that advantage? That this is, in fact, what’s most important, no matter what?”
“I believe that is a crude summary of their argument, yes. But I disagree with them in this case.”
“In this case,” Muth said sadly.
“Yes.”
“Doctor, who’s paying your expenses for coming here and testifying. In this case?”
After a moment, Herzog answered. “My arrangements are with Mr. Fine.”
“Yes. What are they, though?”
“Well.” The doctor lowered his voice. “Expenses, transportation. And a fee for testifying.”
“How much is that fee?”
“Just the testimony?”
“Yes. What’s your professional fee? What has Mr. Fine agreed that his client will pay you?”
“Fifteen hundred dollars.”
“Fifteen hundred dollars . . . a day?”
“Yes.”
“And does that include your travel time here and back?”
“Yes.”
“When did you come, Doctor?”
“Yesterday. I arrived last night at eleven.”
“Last night at eleven. And you’ll go home tomorrow, so that’s two days?”
“No, I’m leaving tonight. My reservation is this evening.”
“So that will be fifteen hundred. For the trip. For testifying.”
“And compensatory fees for patients I’ve cancelled.”
“Plus, I suppose,” Muth looked at the judge wide-eyed, “the office fees for Molly and the Dunlaps. And, consulting to Mr. Fine? That too?”
Herzog nodded.
“How much total?” Muth asked.
“Five thousand dollars, sir.”
“Five thousand exactly?” Muth asked.
“Around five thousand,” Herzog said.
“Well, thank you,” said Muth. “Thanks so much.”
We broke for lunch. Leo and Muth disappeared together, to talk about Leo’s testimony, scheduled to come up next. I went over to the Barrister by myself and had coffee and pie, and watched the clock on the wall. It was the kind that clicked over after each minute had passed, so you were always catching up, always being reminded by the little sharp noise, the twitch of the hand, that you were slightly behind. When I got back to the courtroom, just the policemen were in it. Someone had opened one of the windows to cool the room off a little, and the shade billowed out, then tapped against the glass again. Dr. Payne came in and sat in back. Brenda arrived, sat in the pew in front of him. The policemen wandered in and out, carrying sheaves of paper, laughing with each other.
Leo looked terrible to me when he took his place. His neck seemed long and white and skinny. His eyes flickered quickly from Fine to the judge. A whooping crane, I thought; and then suddenly remembered his bird cry the first time we’d really made love.
Fine asked him to describe his relationship to me.
“We’ve been going out since early May.”
“Going out? What does that mean?”
“We’ve been lovers,” Leo said, looking scared.
The radiator started to hiss. Fine turned to the judge and said something I couldn’t hear.
“O.K., yes, I’ve noted that,” the judge said.
“What?” I whispered to Muth, “What’s happening?”
“He made him a hostile witness. Watch.” Mutch gestured at Fine. “It’s like cross-examination.”
“It’s a sexual relationship you have, isn’t it, Mr. Cutter?” Fine said. He was smiling. It seemed to me it was the first time I’d seen him smile.
“Yes. And emotional.”
“Please just answer the question. How long had you known Mrs. Dunlap before your relationship became sexual?”
“Several months.”
“You’d gone out with her several months?”
“No. I’d met her several months before.”
“How long had you gone out with her before you slept together?”
“Once,” Leo said softly.
“Once,” Fine echoed, his voice sharp, cheerful. “I see. Now Mr. Cutter, you are currently unemployed, are you not?”