From my early years of practice, I represented lesbians
seeking custody of their children during a divorce. One such couple was Jessica and her partner
and long-time family friend Paula. Each
woman fit the then-stereotype of the typical lesbian – stocky, short-cropped
hair, dressed casually in plaid shirts and comfortable boots. They rode
Harley-Davidson motorcycles.
Jessica was
married to Rufus, a gentle man gone crazy by the fact that his wife was leaving
him. He followed her around, begged her to stay, invited Paula to move in with
them, and finally got mad, insisting that he would fight her for custody of
their six children, ages 2-12, “all the way to the Supreme Court.”
In
preparation for trial, I deposed her husband. Rufus. I had expected to expose his flaws, his lack
of fathering skills, and his prejudices, but he was a difficult deposee. For one thing, he was nice. For another, he knew all of the children’s
names, birthdays, favorite colors and TV characters, the last time they were immunized,
and whether or not they were having trouble in school and with which
subjects. So did Jessica. Amazingly, so
did Paula, who had developed a strong bond with the kids during her several
years’ friendship with the family. All
three seemed to be good parents. The
children loved both parents and Paula, according to teachers and the experts
who were hired to evaluate them.
This was going to be an uphill struggle. No lesbian or gay man had ever won custody of
a child in a contested divorce trial in Oregon. In fact, there was case law
indicating that homosexuality, by itself, was enough reason to deprive a parent
of custody, even visitation. In recent years, our women’s law firm had been
hard at work trying to educate the judges, most of whom were well-meaning, intelligent
men and women, open to learning. All but
one. Judge Harvey Leonard. To whom we were assigned.
I prepared Jessica and Paula
well. We went through several hours of
mock trial. I interviewed and prepared witnesses, wrote legal memos, and prepared
exhibits. I told Jessica and Paula, “Dress in your very best, please. This judge will not talk about how you look,
but he will notice, and he will care. Nothing sleeveless, no sandals or
halter-tops, that sort of thing.”
I had experience with Judge Leonard.
I had appeared in front of him many times.
He was an old codger, near retirement, who seemed to view it as his
obligation to render to litigants not only his judicial decision, but alsoto
list his thesauric opinion of them. “You
are supine,” he lectured a quiet or passive man, “limp, flaccid, torpid, and utterly
ineffectual,.” To a woman who had
cheated on her husband he railed “You are a harlot, a trollop, a concubine!”
I sat down with Paula and Jessica, Thesaurus in
hand, and guessed all the adjectives we thought
the judge would hurl at them. Then, in
Court, we would secretly check off each adjective as he used it. In this way I tried to minimize the sting of
his words, though they would be felt.
The morning of trial, I waited for
Jessica and Paula in the crowded hall
outside the judge’s courtroom. I was
nervous, I confess., though I had lined up my my experts, summoned neighbors and
teachers to testify, and prepared
multiple exhibits. The father had
subpoenaed the two eldest children.
Rufus had, by far, the best chance
of winning, even though Jessica had never worked outside the home and had
devoted herself to her six children, sewing, cooking, attending PTA, reading
stories – all of the things good mothers do.
She was heartsick in fear that she might lose custody to Rufus, whom she
had supported emotionally all the sixteen years of their marriage, making his
lunches, rubbing his feet, sore from standing, listening to his union stories,
giving sex when it had been her duty to do so.
Although he was a kind father who loved and paid attention to his
children. She was the primary parent.
The mother.
I waited. I paced. Then I saw them, coming up the stairs. Jessica saw me, broke into a wonderful,
trusting smile, and took Paula’s hand.
They raised their hands together as they strode up the stairs, shouting a
loud “Hey there!”
I was stunned. Silence fell over the hallway as people
turned to stare, transfixed by the sensational oddity of their looks.
They were dressed entirely in black
leather –motorcycle jackets, long tight pants, gloves. Jessica had a black long billed cap on her
head, and Paula wore a
leather
headband. Their jackets were studded, the bright silver dots gleaming. Each
wore thick leather boots polished to a brilliant shine. Several Harley Davidson pins adorned their
jackets. Silver chains hung around their chests, over their hips.
“Well,” Jessica said, brightly, “We
dressed up like you said. You like us?” Rufus walked over to Jessica and said, “Oh,
honey, you look ravishing. And Paula,
you too.!” Then, unbelievably, he gave
them both a hug. “Well, good luck,” he
said. “Here we go!”
Here we did NOT go. This was an instance when all my ethical
duties collided with my responsibility to my client’s case. Lawyers cannot lie to the Court. Lawyers cannot manipulate the system, or
“judge shop” for a judge who will more likely render a favorable decision. I was scheduled to take this case to trial
today. Yet I couldn’t. To do so would result in a phenomenal
loss. I knew it. My colleagues knew it. Rufus’s lawyer, Nancy, knew it. The lawyers all stood there speechless while
Rufus, Jessica, and Paula talked to their friends, their eldest children, as though
this were a company picnic. I could not
believe what was going on.
Nancy approached me. “Katharine,” she began, sympathetically. “I know,” I said. “I’m thinking.” And there I stood, in the
halls of justice, thinking.
Finally, I went over to my clients. “ Jessica and
Paula - you, too, Rufus - wait here.
Nancy and I have something to do first. We’ll be right back.” I returned to Nancy - “Come with me,” I
said. She nodded, and followed me into
the courtroom, trailed by my law partners.
“We have some preliminary business
with the court,” I told the bailiff.
“Wait here,” she said, and she went
to get the judge who came huffily to the bench.
“Your honor,” I said, and my voice
shook. I felt a trickle of sweat on my
temple. “I cannot proceed with this case
today. I would like to resume tomorrow.”
The judge scowled. He eyes narrowed. “And why is
this, counsel.”
“I am not at liberty to say, your Honor,” I
replied.
Oh,” he mimicked sarcastically, “
‘I’m not at liberty to say.’ Well,
counselor, you will tell me or I will force you to go to trial
anyway. I may do so even if you do
tell me.
“I can’t, Your Honor, and I
won’t. I’m sorry.”
The judge berate d me, lectured me
on the waste of court time, the inconvenience to witnesses. He accused me of manipulation, subterfuge,
and disrespect to the court. He told me
I’d never be a respected lawyer, calling me names, a walking Thesaurus of
insults.
But I was saved. Nancy interrupted, “Your Honor, if I may?”
“You certainly may, Ms. Snow,” he
said. “I’m sure you are as outraged as I
am.”
“Yes, of course, your Honor,” she
said smoothly, “But I am aware of Ms. English’s reasons for the unusual and
highly unprecedented request. And my
client and I are not opposed to a continuance. “
Irritated, he leaned over the bench
and was about to snarl.
“I am aware this is a serious waste
of your time, but also I know that you work many long hours on your opinions,
and perhaps this will give you a window of extra time in which to construct
them.”
He pulled back.
“Then you needn’t spend your personal
time, which we all know you so often do.”
After this day, the judge’s renewed
respected for Ms. Snow was unalterable.
And after that day, I knew that there were lawyers like Nancy, who cared
more for the fairness of a fight than for the victory.
We went on to trial the next day. Paula wore a suit and tie. Jessica wore a lovely paisley dress and
pumps. Rufus, as it turned out, wore a
lime green shirt and yellow tie. Nancy and I saw them all in the hall the next
morning, and smiled at each
The parents fared well in trial,
though there were surprises. Rufus, when asked if he objected to his wife’s
lesbianism, turned to the judge and said, “Oh, no, Your Honor. In fact,
sometime I think I am one.” As for
Jessica, I foolishly asked her a
question to which I didn’t know the answer.
“Now, you don’t strap your children, do you?” “Not any more I don’t, she answered.”
In the end, the judge was quite
beside himself. “I have to choose
between two very bad alternatives,” he lamented. “If I had the power to take the children away
from both of you today and give them to the State for placement in foster
care,” he spat, “I would.” He lectured
them both on every fault, calling them both “sexually depraved,” “slothful,”
and “narcissistic.” Jessica and Paula
were prepared for this onslaught, but Rufus began to cry softly.
“So,” the judge concluded, “I am giving the three
eldest children to the father and the three younger children to the mother, on
the condition they have no contact with the mother’s concubine. Nancy did not put that prohibition in the
order, “accidentally” forgetting to do so, and the judge did not notice.
As it turned out, Rufus moved next
door to Paula and Jessica, and the children ran back and forth between houses.
When Jessica was killed in a motorcycle accident two years later, Paula and
Rufus
continued
to raise the children to adulthood. I
stayed in touch.
Judge Leonard retired a year later,
none too soon. He was worn out, decayed, unworthy, vitriolic, and opprobrious. Or so I told him on my farewell card.
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