Beyond GOOD AND EVIL or
Excuse Me, Counselor,
Do You Prefer Lemon Meringue or Blueberry
By Gary G Gentile *
Edited by the grammatically correct Harry J. Gruener
(from the Pittsburgh Legal Journal)
I assume in a former life I was a mass murderer. That would explain why I was reincarnated as a family law practitioner. I endure this sentence with some degree of dignity, although I catch myself whining from time to time, partly due to a lack of character and partly as an occupational hazard. I know of no other area of the law, and I have stumbled through most of them during my career, which carries with it so much emotional baggage. And, since perception is reality in these matters, problems real and imagined must be dealt with or they create intractable impediments to resolution.
This dynamic transforms the professional role of the family law practitioner into a part-time counselor, confessor and white knight. In this complex arena, the practitioner must frequently reconcile conflicting institutionalized values, including ethical, social and moral. These maps of conduct need to be moved and shuffled, from time to time, to avoid or at least minimize, self loathing.
I have become quite dexterous in this juggling act, thereby avoiding ethical dysfunction. But even a chameleon like me ultimately draws some definite lines between these vague and overlapping values, and clumsily scale to the moral high ground to shout "Enough is Enough!" At some point, without equivocation, professional ethics and the bounds of advocacy must give way to more important principles.
One such principle that comes to mind is the moral commitment to serve the best interest of children. Even the most Id-driven member of our species (as well as most reptiles) recognizes some duty, whether directed from above or imprinted in their brainstem, to nurture and care for their offspring. Therefore, I do not anticipate any real philosophical opposition to the proposition that legal tactics should give way to the welfare of kids. On this subject, both Hulk Hogan and Mr. Rogers are likely to agree.
Most people love their children and under normal conditions, tend to act in their best interest. But under not so ideal conditions, parents tend to continue to love their children but not act in their best interest. Such conditions are found in a disintegrating marriage when you may encounter two people who despise each other more than any other object on the planet, while attempting to share the love and affection of that object which they most truly cherish -- "the Kid". Granted a recipe for disaster, but less disastrous if the parties' respective attorneys refuse to participate in or acquiesce to their unreasonable conduct.
The parties should be reminded that when they were married, the majority of their time was spent arguing about which spouse would be stuck with the kids. Now that the parties are separated, they spend most of their time arguing about which shall have the most access to the kids. What could possibly transform custodial duties from an annoyance to a joy? Nothing more than vindictive self interest! Anyone who has kids knows that before as well as after separation they remain a time-consuming pain in the rear end and, therefore, before and after separation the other spouse should continue to represent nothing more than a free baby-sitter. Unfortunately, this is not the case.
People are hurt and tend to put themselves above the best interest of their kids. Everyone is subject to this temptation. But some people have greater tendencies toward misaligning priorities than others. Similarly, some attorneys tend to encourage this conduct more than others.
I have come to label this course of conduct as the Custody Crap Syndrome (CCS). In our professional capacity, I suggest that no client/attorney relationship justifies promoting CCS among our clients or tolerating it among other professionals.
In order to eliminate CCS, we must develop CCS detection awareness. Once detected, certain steps should be immediately taken to eliminate it from the fabric-of the family law tapestry. To assist the practitioners in CCS detection and eradication, I offer the following observations and examples.
General Hint: Do not be mislead by the embellished professional terminology sometimes surrounding CCS. Sample letter from attorneys who participate in or acquiesce to CCS.
Example #1 Letter from Attorney:
"As you know, to assist young Kevin in dealing with the anticipated trauma of his parents separation, we have consulted Dr. Poop, a eminently qualified psychologist, who concentrates his practice in the field of dysfunctional families. After meeting with the child and mother Dr. Smith has decided that your client's visitation/custody contact should be minimal and monitored by mother and his office prior to expanding it to overnights. He believes the disruptive nature of the shift in the status quo requires the child remain in one household until his adjustment can be further evaluated."
CCS translation:
"Since you have chosen to leave me I intend to torture you be withholding your child. To assist me in this endeavor, I have hired a professional parrot who will repeat anything I pay him to repeat. His evaluation is based on an extensive review of the subject matter, which consisted primarily of me driving the child by his office at 25 miles per hour and waving to him out the window."
Example #2 Letter from Attorney:
"Little Ronnie's counselor has advised me that much confusion is resulting from your exposing him to your current "significant other". The counselor fears that this confusion could result in supplanting my client's role as his father and eventually lead to a total alienation of affection and a disintegration of his relationship with his son. Therefore, be advised that your client shall not be permitted any further contact when she is in the company of Mr. Fully Employed Jones."
CCS translation:
"Since you have chosen to leave me I have elected to punish you by not permitting you to see your child while with another man. This will effectively ruin any chance you have of regaining a social life other with me and with hope, turn your son against you as further punishment for not overlooking my abusive drunken behavior for the past twenty years."
Example #3 Letter from Attorney:
"My client has been advised by numerous professionals that in order to distract young Jeffrey from the trauma of our client's separation and pending divorce he should be enrolled in numerous activities. Keeping his best interest at the forefront of our agenda, my client has followed this recommendation and enrolled him in the following activities for this summer: piano lessons nightly, soccer practice three times per week, martial arts alternating between the soccer, ballet and tap dancing on weekend evenings immediately after little league practice. Your client should be prepared to adjust his partial custody schedule accordingly and cancel the shore vacation he scheduled for next week. I hope this information is timely and your client will be able to get a refund for the airline tickets and condominium rental."
CCS translation:
"I will do anything to disrupt any potential pattern of contact you intend to have with your son, including enlisting him in the Foreign Legion. If you oppose any of these activities it will cause him to be upset and cry and I will explain to him that he cannot do fun things because of you. I will never let him accompany you to the shore since that is were you and I use to go when we were happily married."
Example #4 Letter from Attorney:
"Be advised that my client will not be able to return young William to your client's home in time for Passover dinner on Sunday., William and I shall be attending Mass followed immediately thereafter by a religious retreat. My client considers William's religious training and commitment to Christianity superior to any family dinner commitment and therefore your client's plans must give-way to this more serious endeavor."
CCS translation:
Even though I have not attended church in 25 years and cannot even spell Christianity I intend to invoke this religious zealotry to prevent your parents from seeing their grandchild. All this, despite the fact that they loan us money, supplemented our household income while I was unemployed for twenty years and retained me in the family business even after I was caught stealing."
Example #5 Letter from Attorney:
"Please be advised that Dr. Say-Anything-For -Money has opined that the bruises on young Harrold's arms could be the result of child abuse inflected while in your client's custody and that of your client's significant other. For that reason I am suspending all custody contact, including potentially dangerous telephone calls pending the results if further medical testing."
CCS translation:
"I refuse to accept the fact that the black-and-blue marks may have occurred while Butch was playing rugby, soccer or engaged in his weekly Kung-Fu competition but, instead, choose to believe it was inflicted by you or that filthy, erotic dancer who poses as an organ and choir instructor for the local parish. By the time, this tactic plays out the bruises will be gone and you will have no proof that I was merely jerking you around."
Example #6 Letter from Attorney:
"My client was shocked at the request by young Sidney that your client's significant other parades around naked or in skimpily-clad clothing in his presence. This unwholesome atmosphere, based on consultation with Dr. Psycho Babble, may result in sexual identity confusion and moral degeneration. Until this situation is corrected, young Sidney shall not be permitted any overnight custody with your client while in the company of his significant other."
CCS translation:
"Since you decided to leave me for a young hard body after I gained 80 pounds on a jelly roll diet and that young harlot chooses to wear a bikini at the beach instead of an overcoat like I had to, I am withholding your son from you."
Example #7 Letter from Attorney:
Dear Ralph:
In order for my client to consent to the holiday vacation with young Mary, I must insist that your client pick her up at the home and chaperon her to the airport and fly back with her from Cleveland. I realize the return flight only provides your client 45 minutes to get from the airport to our house and back, but due to my client's schedule, she will be unavailable to deliver Mary to the airport. Also, given her age, I think it is ill advised to have her unaccompanied on a flight of this length. If this is not acceptable, then I shall not permit you to exercise your Leap Year visitation right.
CCS translation:
"Even though our daughter is 17 years old and hitchhiked across Europe last summer without any underwear and also goes to school every day on the back of an uninspected Harley Davidson, I insist you incur the unnecessary expense of flying with her and the inconvenience of picking her up at my home and taking her to the airport. I will not have time, since I have scheduled a tennis lesson. As always, I intend to place every obstacle imaginable in the way of you seeing your daughter, since the only pleasure I have left in life is making you miserable."
I hope these illustrations will be helpful in assisting you in the detection of CCS. Although detection is the primary step in eradicating such conduct, there must be appropriate follow-up action as a final phase in our eradication campaign -- remember, there should be no ramps for the ethically impaired.
We should attack this problem as we did in the playgrounds of our youth and adopt the simple dynamics of that uncluttered era. Initially, we start with education, that is, bring to the attention of the perpetrator that CCS is unwarranted and unwelcomed. This should be followed by a verbal expression of dissatisfaction and eventual shunning. If all else fails, we should employ playground culture's ultimate corrective tool: violence!!!
Not real violence, mind you, but something more consistent with the watered-down, form-over-substance yuppie style of life we now endure. One suggestion would be "pie facing" the perpetrator a la Soupy Sales. This sanction would be relatively painless but, at the same time, send a clear and symbolic message to the perpetrator that his conduct was repugnant to his peers. It also servers as lingering evidence to the professional public that he/she/it has been recognized as a jerk.
To implement this sanction, judges would be armed with an array of pastries and pies of various flavors stored conveniently behind the bench in immediate reaching distance. During those occasions when a practitioner was engaged in a long, whining dissertation merely interrupt by saying "Excuse me, counselor, do you prefer lemon meringue or blueberry".
* Partner at Goldberg Gruener, Gentile, Voelker & Horoho, P.C.