What Catharine MacKinnon and Andrea Dworkin had done to raise consciousness around rape and pornography, Margaret and others like her had done in the area of domestic violence. Many believe it was the verdict in the O.J. Simpson trial that ushered in sweeping legislative changes in domestic violence law. But those changes would never have occurred without the groundwork laid by women’s advocates for over two decades before the Simpson trial.
Among the more significant changes were things like what evidence was considered admissible. For example, in many states, tape-recording a person without consent was not only inadmissible, it was a crime. But new laws allowed for such tapes to be admissible if they were evidence of domestic violence. In the family court, domestic violence against a spouse in front of a child now constituted child abuse. And if a parent was found to have committed an act of domestic violence, there was a presumption against that parent having custody of a child.
As these new domestic violence laws were taking hold, many states were trying to encourage joint custody, and legislation made timeshare a factor in calculating child support. In other words, if a father spends more time with his child, then he pays less child support to the mother.
As a newly appointed commissioner, I could see how the two legislative intentions were colliding. On the one hand, parents who had never had anything to do with their kids were suddenly demanding custody in order to pay less support. On the other hand, it didn’t take long for people to realize allegations of domestic violence were easy to assert, hard to disprove, and the fastest way to sole custody and more child support. With money and sole custody as possible motivations, claims of domestic violence were often met with skepticism.
Margaret Todd had been forged professionally in a time when protective laws—flawed as they may be—did not exist, and she had the battle scars and the undeniable horror stories to show for it. I had only known times since such laws were being drafted or had gone into effect, and I was far more aware of the ways in which those laws were vulnerable to corruption than I was of their origin and genuine purpose.
Margaret and I sometimes ended up on different sides of this issue. Just a year before, I had represented a father who was at risk of losing custody of his children after being accused and acquitted of drowning his stepson. Margaret represented the mother, who petitioned the family court for sole legal and physical custody of their children. If her husband hadn’t killed her son, she argued, then he was unfit for allowing the boy to be close to the water without supervision. The family court denied the mother’s petition, and it seemed Margaret hadn’t trusted me since.
To Margaret, what I considered my objectivity represented all things wrong with the direction in which feminism was going. I—thirty years old, educated, white—at once benefited shamelessly and distanced myself from the backs that had been my bridge.
*
I turned to Mr. Sanders, who appeared to have more to say. He balanced his briefcase on the waist-high partition separating the audience from the participants and set his hands atop it. The case supported his considerable weight as he leaned in.
“Your Honor, we’ve been unable to come to an agreement.” His pink, fleshy jowls rippled as he spoke. “We have absolutely no faith in this mother’s word that she will follow a court order.”
The attorneys entered the inner circle of the courtroom with their clients in tow.
“Ms. Todd,” I prompted matter-of-factly, inviting her to begin.
“Your Honor, my client has obtained a temporary restraining order and is now in a battered-women’s shelter at an undisclosed location, where she is living in fear for her life. Since we’ve filed, her tires were cut, and she’s received threatening phone messages from unidentified callers—”
“Your Honor,” Mr. Sanders said, cutting her off. “Evidence. What does any of this have to do with my client?”
My hand went up traffic-cop fashion. “Let her finish, please.”
Todd looked to Ms. Flint, the mother, who was sitting to her left. “We’re requesting sole legal and physical custody of Angie, and for Mr. Baxter to have supervised visitation.”
Ms. Flint nodded in agreement. She was pallid in complexion, her black hair gathered in a bun at the back of her head.
Sanders came out of his chair. “This is unbelievable!”
Mr. Baxter, the father, sat to Sanders’s right. His bald, dark-brown head caught the light and his brown eyes set on me.
I ignored the outburst. Sanders rolled his eyes and flung himself back into his seat.
Todd continued over him. “There is a long history of abuse in this case, and we feel Angie should not be with Mr. Baxter unsupervised. Not only is he a danger to Ms. Flint, he doesn’t know the child. He hasn’t spent any time with her.”
“Because she’s not letting him.” Mr. Sanders began waving at me. “You’re just going to let her go on this way?”
“Stop interrupting,” I said.
“I knew we should have asked for a judge to hear this case.” Under his breath, but loud enough for the room to hear him. And then with condescension thinly disguised as deference he added, “No offense, Your Honor.”
I ignored the remark, aware Alex Sanders had applied for the position which I now held. Any other day, Sanders’s provocation might have worked to throw me off balance, pull me into a fight. I might have felt ashamed to be so easily dismissed by him, exposed as a fraud in this black robe, reminded that in the eyes of my colleagues it had been politics and brownnosing—or, perhaps, muff diving—that had gotten me here by the unheard of age of thirty.
I had overheard him saying it. “In San Francisco, gay judges promote gay lawyers. Being a fag these days is like being a member in an exclusive club, only anyone can join.” He had laughed at his own joke.
Not today. Today, I thought of Del’s death, so far away from this place of my actually very hard-won and always-dubious power. Today, I violently rejected the futility of her strivings, and of my own, and railed against the ease with which the likes of Alex Sanders had always denied our achievements. Never mind having gone from dropping out of high school at the age of sixteen to graduating from law school at the age of twenty-three. Never mind the absurd salaries and benefits I had turned down to work sixty-plus hours a week over the past seven years for nominal wages in order to expand access to family court for families who couldn’t afford an attorney. Never mind the half dozen articles I had published about improving and expanding legal representation for children living in poverty. Hard work and true devotion held no sway against the entitlements assumed every day by Alex Sanders and others like him.
I focused on Ms. Todd. “You were saying.”
“My client wants to work with her baby’s father, but Mr. Baxter is verbally abusive and physically intimidating. It is not possible to cooperate with him.”
Wrestling with his wide body, twisting it to situate more comfortably in the chair, Sanders asked, “My turn now?” His tone was juvenile. I nodded. “Nine months. That’s how long my client has been trying to see his daughter. Mr. Baxter has never been arrested. There were no police reports made during the marriage. He’s been in his current job for ten years without incident. And he left her. The mother, Ms. Flint I mean, has made repeated false allegations. She has sought a restraining order three times in the last four months alone. Two were denied, one was dropped. We had an agreement for visitation after the baby was born. Mother never showed. This is our fourth time in court, because Ms. Flint there”—he pointed in her direction—“says she’ll cooperate, and then she doesn’t. She was ordered by Judge McVee six months ago to go to therapy, but she hasn’t done that. Now she has relocated to an undisclosed location, and she is alleging that my client is following her at the exact time he can prove he’s at work. This is about retaliation and child support.”
Todd said, “We’re not asking for child support.”
Sanders laughed-blurted, “They will be.”
My court reporter’s t
ape ran out. While she took a few minutes to change it, the lawyers huddled with their clients, and I thought about what I would say next. I already knew coming into this hearing how it was likely to turn out based on the pleadings. Unless Ms. Flint could offer some information to support her most recent claim of domestic violence, she was continuing to interfere with this baby’s right to see her father and to form a relationship with him. Since less drastic measures had been exhausted, the remedy was to place the child with the parent most likely to support a relationship with the other parent—in this case, the father.
*
What I was about to rule would fly in the face of convention, surprise this father, and leave this mother indignant. When it comes to parenting, especially of babies, a lot of people think fathers are less competent than mothers. But what I valued most about the law was the opportunity it provided for calling basic beliefs, like that women are inherently better parents, into question, turning ideas inside out, exposing the underlying prejudices and flaws in logic that prevent us from seeing individuals for who they are and looking at each situation as unique. I went to law school because of what it had been like for me and my friends as adolescents at the mercy of unreasonable, sometimes quite cruel, parents. Striving for fairness was the way I felt safe and sane in the world.
I figured this out in my last year of college. Until than, I’d stayed the course I’d set upon with Del in middle school. Del had wanted me to be a writer. We first noticed each other in English class in eighth grade. The class had been divided into small groups, and we were going around in a circle reading poems we had written. Mine was about seeing my father hit my older brother, the experience as ordinary as if I were describing a family dinner conversation.
After I finished reading it, I noticed Del staring at me. We had been in school together since elementary school, but I was an athlete and a book nerd. Del was popular and seemed inaccessible to me as a friend. She ran with older crowds and always had a boyfriend. When I finished reading my poem was the first time I really saw Del’s face. It—she—was the most beautiful thing I had ever seen. Her raised brows, solemn eyes, and softened cheeks expressed a mixture of awe and confusion and utter sadness. When I realized her reaction was in response to my words, I brimmed with pride and potency and purpose. My idea of myself as someone who could have an effect on others was born in that moment, in the light cast from Del’s recognition of me.
During lunch period, I was sitting on the ground in the courtyard, book open on my lap, waiting for my group of friends to gather. A shadow fell upon the page I was reading, and I looked up expecting it to be Gail or Katie. Del was standing there, hugging her books, hips tilted from casually leaning more on one leg, soft hair falling forward around her face. Her plump, freshly glossed lips caught the sunlight.
“Hi, Jenna.”
“Oh,” my heart held a beat, “hi.”
“I just wanted to tell you I liked your poem.”
I thought how serious Del seemed, which surprised me, because she was one of the beautiful girls for whom things appear to come easily, and seriousness implied effort. Well, that, and Katie and Gail, my two best friends, hated her and were always talking about what a superficial slut Del was. She stood searching around me for a moment as I waited to see what she would say next. I felt shy and confused—on the one hand glad for her attention, on the other hand made acutely uncomfortable by it. Then she asked the oddest question. “Does your father really hit you?”
My brows pinched and my face twisted a little. “Sometimes. If I talk back.” Del was quiet, her expression pensive. “Does yours?” I asked.
Del slid her weight to her other leg, swung her hair around, and adjusted her books against her body. “No. My father doesn’t hit us.” Her head turned. She had noticed her boyfriend, Joel Bishop, enter the courtyard. Joel was already at Miami Shores Senior High School, and he was coming to have lunch with Del. “My mother hits us.” Now preoccupied with Joel, she concluded the conversation by saying, “I’m never gonna hit my kids.” As Joel approached, Del straightened, fixed her smile, and pushed her chest out. “Bye, Jenna.” Without waiting for me to respond, she walked away.
We didn’t become friends until Del joined the soccer team that summer, but I had already begun to write short stories and poems. All I wanted was for Del to look at me again the way she had in English that day. I created stories the whole time we were together, writing first toward her, then to her—and then about us. Stacks of stories scribbled in pen or pencil on pages or in the margins of class notes, reading aloud to her at night stories of a heroine named Khila, basking in Del’s delight and encouragement. I realized now, with Del dead, that the only remnant of those long-ago-destroyed writings was Del’s living daughter. Khila.
*
The court reporter indicated she was ready to resume.
“Back on record,” I said and faced the parties. “I’ve read the paperwork that both of you have submitted. It does confirm much of what you’re saying, Mr. Sanders.”
Sanders seemed surprised. He had expected me to retaliate, twist this, make it come out a certain way for one party because I didn’t like the other party’s attorney or because I was a white gay woman and his client was a black heterosexual man.
“It sounds like the only new information is the allegations of abuse.” Both attorneys nodded. I looked to Margaret Todd, her glasses perched on her head, a pen in hand and poised for writing. “I’m denying the request for a restraining order.” Catching Todd’s glare, I said, “Too speculative.” Now I turned to Ms. Flint, a woman small in stature, with severe eyes and stern posture. My tone was matter-of-fact and straightforward. “I’m granting the petitioner’s request for physical custody of Angie, temporarily.”
Flint’s face hardened and then wrinkled in pain. “What does that mean?” She grabbed Todd’s arm. “What does that mean?” Ms. Todd leaned in and began to whisper. “You can’t do that,” Flint said to me. “I’m breast-feeding.”
Ms. Todd’s head pivoted in my direction. “Your Honor, Angie is still breast-feeding. And,” she continued, “I fail to see how a change in custody is in this baby’s best interest. You’re removing her from the parent she has been with since birth and placing her with someone she doesn’t know at all.”
“I understand. Hopefully,” I said, “Ms. Flint can and will provide Mr. Baxter with breast milk.”
Todd said, “Your Honor, you’re disrupting a well-established mother-infant bond, which is a known recipe for later psychopathology in the child.”
Sanders intercepted. “Keeping the child away from her other parent is also known to throw a wrench in healthy development. Ms. Flint has made it impossible for Angie to have a relationship with anybody else. How can that be good for the child? My client”—Sanders put his hand on Mr. Baxter’s shoulder—“will make sure Angie sees her mother all the time.”
“Well,” I said, “what is your plan for visitation?”
“Mr. Baxter works during the day, and Angie is going to be with her paternal grandmother. Ms. Flint can be there while he’s working, and she doesn’t have to see Mr. Baxter.”
I jotted down what Sanders was saying. “I’m ordering a minimum of thirty hours of weekly contact to mother, with details to be worked out between her and paternal grandmother. I’m also appointing minor’s counsel,” I said toward Sanders. For the record, I added, “To ensure that Angie is safe and to enforce visitation.”
“Your Honor,” Todd said in barbed tones, “my client is not going to visit at paternal grandmother’s house.”
“Neither of these parents can afford professional supervised visitation. I’ve got a family member willing to help Ms. Todd. I’m going to take advantage of that.”
“This is a domestic violence matter. Need I remind you, intimate partner violence is the leading cause of death for pregnant women in the United States”—she spat out the talking points over Sanders’s loud objections and my attempts to stop her—“and that
’s proven murders. For women in general, it’s number one after car accidents. There were a reported five million physical assaults and rapes last year. A women is killed—”
I interrupted more forcefully. “This is an argument more appropriately addressed to the legislature, Ms. Todd.”
“It’s not a legislative argument at all, Your Honor. This case brings these statistics right to our doorstep. You are making an order to turn a nine-month-old baby over to an alleged abuser. Are you sure you want to do that?”
It was a warning. Margaret Todd’s program, the Family Violence Center, had just led a successful campaign to oust a long-seated judge in favor of a new judge who was, in their estimation, more sensitive to issues of domestic violence. She was letting me know that if something happened to this mother or this baby, I would have hell to pay.
Flint was standing with tears flooding down her cheeks, glowering at me.
I met her glare. “This is a temporary order, and I’m setting a one-month review date. Get yourself situated in stable housing, cooperate with the visitation, start counseling, and we’ll revisit this”—I looked to my clerk for a time—“September thirteenth, nine a.m. That gives you four weeks.”
“Four weeks?” Flint fell forward a little and then steadied herself by placing her hands on the table. “Who is going to take care of my baby? How do we know she’ll be safe?”
I thought about Khila. “It can’t be good for her,” Gail had said, “to be raised by that man.” Gail had called me because she knew Del’s family wouldn’t stand a chance representing themselves in a custody dispute. I closed my eyes for a moment, trying to regain my focus. “I’ve made my orders,” I said, ignoring Sanders’s grin.
Before moving on to the next case, I turned to my clerk and said, “Let Judge McVee know I’ll be out the rest of the week.”
Chapter Three
My workday over, I sat on my bedroom floor tussling through the clean laundry pile seeking clothes I wanted to take with me to Miami. Madison came into the room, my favorite sweats in hand. She presented them to me, a show of conquest over the current state of our laundry.
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