by Warren Adler
“And the case law?”
“Adoption laws are tough in this state. The new father has all the rights of a natural father and, therefore, absolute power over the minor child—with the wife, of course. There are numerous cases attesting this. The grandparents have absolutely no rights in this matter.”
“Then why the petition?”
“Grey power,” Carter said with a smile, pointing to his hair, his Adam’s apple bobbing. He fished in the file for a paper.
“I don’t understand.”
“We’re one of forty-nine states that now have a law granting the right of grandparents to petition for visitation rights. It’s a phenomenon of the aging population. The old common law rarely allowed that. So the old folks are feeling their oats, petitioning all over the lot. In this case, they come smack up against the adoption laws. Actually, the first ploy of the defense was to get the case thrown out on a technical plea. Peck, the Grahams’ lawyer, cited a number of decisions which explicitly rule out the grandparents’ rights after adoption. But Judge Compton didn’t allow it.”
“Why not? If the adoption statutes were so explicit.”
“Maybe he wanted you to have an easy one first time out.”
“Easy? Nothing’s easy in this business.”
“Wrong word,” he said. “Should have said safe.” He looked at his watch. “I’m really sorry you didn’t get to read this,” he said, holding up a sheaf of papers.
“We still have a few minutes.” Her mind was beginning to hum now. She felt her earlier emotions departing. Like a boxer going into the ring, she thought, welcoming the feeling.
“Here are the parameters,” Carter said scanning his notes. “The Succession of Reiss, 1894, the beginning of case history on this matter. The courts ruled that parental control is fundamental and accountable to no one, that the obligation of a parent to permit grandparents visitation is not a legal one, that visitation by a grandparent over the protest of a fit parent is unenforceable. Remember we’re talking visitation. Not custody. Ironically, if the grandparents were to prove the unfitness of the parents, they would blow their case for visitation. It would become a custody case. Catch-22.”
Annie nodded, prodding him to continue.
“There’s a lot in between, of course. Our law passed a couple of years ago under pressure of the grey lobby allows the court to determine who shall have visitation rights to a child following the termination of a marriage.” He held up what she assumed was the text of the statute. “The kicker is termination of the marriage. Like divorce. Or death of a parent. In this case, the surviving parent has remarried. Hence, no termination. Round one for Graham. But the real heart of it all is this.” He read from the paper in his hand. “ ‘And may grant such visitation if the court believes it to be in the best interests of the child.’ In other words, despite the reams of cases, citations, and common law practice, the fundamental measure in every situation involving a minor child is,” he read again, “ ‘the best interests of the child.’ ”
“So there is latitude.”
“Some. In this case, narrow. Too much case law on the rights of adoptive parents. If you rule for the grandparents, you could get it thrown back at you on appeal. Key word, ‘could.’ Just file it in the back of your mind.” He paused. “Then, of course, there are certain political considerations. After all, none of this is done in a vacuum.”
“Political?”
“It’s something to consider, Judge. You are, after all, political.”
“Certainly you’re not suggesting that I be political in my decisions?” She deliberately expressed just enough indignation for him to get the point.
“Once again, back to grey power, the clout of our aging population. Did you know that there is a resolution before the Senate of the United States, already passed by the House of Representatives, urging a Model Act on Grandparents’ Visitation? They want all states to have a uniform law. It’s now before the Senate.”
It was already past ten o’clock, but she did not make a move to leave, giving him permission to continue.
“Let me give you the gist.” He scanned the paper in his hand. “Here. I quote. ‘The relationship between grandparents and grandchildren can provide continuity in a child’s life after the stress of divorce, and it is a relationship that can be good for grandparents and grandchildren alike.’ Get that. ‘Good for grandparents and grandchildren alike.’ That’s the first time such a thought has been injected into the mix. The courts have never ever considered the welfare of the grandparents in such situations. You know why? Politics. Pure and simple. And it comes in the whereases to this very same resolution. Shall I continue?”
She nodded.
“ ‘Whereas approximately 75 per centum of all older Americans.’ ” He paused and looked at her. “Read ‘voters.’ ” He smiled and continued. “ ‘Whereas grandparents play a vital role in millions of American families.’ ” He paused again, obviously skipping. “ ‘And whereas such procedural rights to petition State courts often do not provide grandparents with adequate opportunities to be fully heard with respect to the granting of such visitation privileges.’ ” Again he paused and looked at his watch. “Then the resolution asks for the states to adopt a uniform law. Get my drift?”
“I do, indeed. But I’m a judge when I hear cases.”
“And a politician when you go for the job on a permanent basis.”
“I hereby wipe such a thought from my mind.” She said it lightly, but she meant it sincerely. She could deal only with existing law. Don’t blaze trails, she cautioned herself, remembering the word Carter had used. “Safe.”
She felt better now. The aggravation of the morning had been locked in a separate compartment of her mind. She stood up and Carter helped her on with her robe. She looked into the mirror. “Heah come da judge,” she told her image. Turning, she swept through the door into the courtroom.
She enjoyed the ritual and etiquette of the courtroom, but it was the deference and respect for her presence that she loved the most. Even though she knew it was accorded to the office and not to her as such, she soaked up the obeisance and was thrilled by the symbols of her rank, the black robe, the vantage of the high bench, the exhibition of power and its ultimate exercise. When she walked into the courtroom, she became totally aware that what she thought, how she saw and heard, and, despite the caveats and admonitions, how she felt, created destiny.
Although the high-ceilinged old courtroom, with its baroque intention barely disguised by repeated attempts at remodeling, was the one she had used to try criminal cases, the atmosphere was decidedly different, the air of tension and anxiety surprisingly more pervasive. At first, it confused her. A potential loss of freedom seemed, on the surface, far more ominous and anxiety-provoking than a domestic dispute. But the faces looking up at her were more charged with desperation than those of most of the robbers and murderers who had come before her bench.
As the younger lawyer rose, she felt the full and intimidating impact of her own power. He wasn’t addressing a jury. The twelve seats behind the rail were empty.
“Your honor,” the younger lawyer began, his voice steady, its timbre deep and resonant, echoing in the empty chamber. Oddly, there were no spectators, not even the usual strays who haunted courtrooms in search of entertainment or simply to pass the time. She listened as he outlined the complaint, letting the words roll through her as she surveyed the tense faces, each a mirror of his individual motives.
Forcing herself to maintain a rigid expression, she let her eyes roam over the faces of the antagonists and their lawyers. Show nothing but neutrality, she urged herself, hoping she could achieve such a pose throughout the trial. But beneath the mask, her mind reacted. She fixed the names of the participants in her mind. The Waters couple. She looked at her file: Molly and Charles. They were gray-faced, tense, uneasy, very much misplaced in this atmosphere, confronted, obviously, by a confusing conflict of values, caught in the clichés and stereotypes of old-fas
hioned sentiment. Tragic figures, she decided.
On the other hand, here were the Grahams, carrying the banner of youth and fecundity, hope and success. The woman was, as they say, heavy with child—wearing a white maternity blouse with a big red bow, carefully groomed, cheeks flushed, eyes bright, attentive and calm, soothed by her obviously devoted husband, who held her hand. He was an intense type, with eyes that burned into the young lawyer. She looked at the file to confirm her analysis. Computer engineer. She gave herself a silent pat for insight. Beside them sat their lawyer, whom she knew casually, a big man with a distinct, carefully studied manner and dress. String tie, creased beige suit, a jowly face, his lips pursed and eyes down as he made notes. Shrewd. Cunning.
With the names and the players carefully fixed in her mind, she directed her full attention to the younger lawyer, who was vaguely familiar. Again she looked at her notes. Robert Forte, who bore the dark good looks of the slender Italian, elegantly swathed in European designer clothes, a gold bracelet visible under his rounded, buttoned cuff, which emphasized the vast chasm between him and his clients.
She listened as he cited case after case designed to buttress his arguments. Unfortunately, most of the cases were from other states, although his words were charged with emphatic decisiveness. Beneath the surface of his arguments, she read the subtle messages of sentiment and emotion as he delicately shifted the focus from the child to the grandparents. Clearly, she saw the design, invisibly shaking her head as she scanned the notes that Carter had put into the file. In the best interests of the child. He had highlighted the words with a yellow marker.
“. . . and so, your Honor,” Forte continued as his tone hinted that he was winding down, “we believe that the bond between grandparent and grandchild is of such special importance to the emotional growth of the child that its deprivation can have consequences not unlike growing cells being deprived of nourishment. Under no circumstances can it be considered in the child’s best interests to deliberately withhold the selfless love and affection that has been dispensed by grandparents since time immemorial.”
Eloquent, she decided, but strangely unmoving. A brief flash of memory intruded. Her own grandparents had faded from her consciousness. For some reason, her recall was olfactory, musky body odors as she suffered their display of affection. Her mother’s people were Poles, immersed in the ethnic world of the old ways and the old language. Her memories of them were laced with good doughy things to eat and long conversations that excluded her. The booming voice of the other lawyer recalled her to the present. He was commanding in his manner, as histrionic as his dress. She forced herself not to smile as he embarked on a predictable path, citing case after case of adoptive laws and decisions.
As was the protocol in such introductions, he did not come to the heart of his strategy until the windup.
“We agree with learned counsel, your Honor, on the question of the bond between grandparents and grandchildren. The child in question, because of his adoption by Mr. Graham, has been provided with devoted, loving, stable grandparents. Note, too, that no attempt has been made to erase his antecedents. The name of his natural father has been retained. But my clients believe that contact with the parents of his deceased father would destabilize the child”—with elephantine deliberation, he turned his head and looked toward the older man—“in the light of certain unstable behavior, manifested particularly by Mr. Waters, which would be inimical to the child’s emotional welfare.” Peck paused, giving her the needed time to survey the obviously uncomfortable Mr. Waters, whose ashen face described the rigid control he was exercising over his emotions, staring straight ahead, eyes glazed and forlorn.
When the big man had begun, she had half-expected him to dramatize the issue of the woman’s widowhood. She had no illusions about the ways in which lawyers factored a judge’s personal life into their approach. Any lawyer worth his salt would be remiss if he avoided such considerations. They certainly probed every aspect of a jury candidate’s background and personal life, and in this case the judge was also the jury. In fact, she was somewhat amused by the clever way Peck avoided the issue, as if to even mention it would somehow suggest pandering.
Still she did not connect emotionally, which, she told herself, remembering Judge Compton’s ominous remark, was a relief. She felt as if she had already passed some sort of special test. For a judge, it was more important to observe pain than to identify with it. It was worth another silent pat on her back. She was perfectly capable of traversing a strictly legal and intellectual line, listening, but not empathizing. With the strategy clearly outlined for both sides, she could sit back, absorb the arguments, listen to the testimony, then make a fair, wise, and dispassionate ruling. Wasn’t that what being a judge meant?
Forte called Mrs. Waters first, taking her through the usual questions to establish background. She spoke in a clear voice, obviously in the tone and manner in which she communicated with her young students. Judge Stokes could detect no signs of instability or any trait that might make the woman an unfit grandmother. That was not the real issue, of course, she warned herself, glancing at Carter’s highlighted notes. “As grandparents, because of the adoption, the Waterses do not legally exist.”
“And what were your relations like with Mrs. Graham,” Forte asked, offering the body language of the sympathetic while his voice strained for the noncommittal, “both during her marriage and immediately after your son’s death?” Mrs. Waters looked toward her former daughter-in-law who met her gaze for a brief moment, then lowered her eyes.
“I always thought they were fine. She was often at our house and, of course, Tray spent a good deal of his time there, especially after”—she cleared her throat—“Chuck was killed. It came as a shock to both of us to learn that Frances wanted us to stop seeing Tray.”
“But you took no action to stop this from happening?”
“What could we have done? I thought it might be just a passing phase, until Tray adjusted to his new situation.”
“When did you realize that your inability to see your grandson seemed to be developing into a permanent condition?”
“Nearly two years went by. We heard nothing. Our gifts were returned. As far as we were concerned, Tray had been spirited off to the ends of the earth.”
“And you both missed him?”
“Of course we did. And Tray must have missed us. We were very close.”
“How do you know he missed you?”
“You don’t just take a child away from loving grandparents and expect him to accept it willingly. Not after the relationship we had with him. As for us, it was awful. We missed him so terribly. It just didn’t seem natural, not to see him at Christmas, on his birthdays. It just didn’t seem natural.”
There was a brief catch in the woman’s throat. One could not argue with Mrs. Waters’s genuine portrayal of her deep hurt.
The younger lawyer looked up from the bench, as if to assess Annie’s involvement. She deliberately kept her face frozen, nor did she move her head to acknowledge any response.
“Can you describe how you and your husband spent your time with Tray?”
“Well, we have this house and yard. Charlie and he spent a lot of time together. They made toys, a wagon, a basketball hoop, a tire swing. Things like that. Charlie, my husband, is very good with his hands and he likes the outdoor life. They worked in the garden together. And Charlie taught Tray things. Sports. How to throw and catch a ball. How to use a baseball glove. How to fish. The usual things that an older man imparts to a male child. Tray followed him around like a shadow. They were inseparable. And we all went out together a great deal. To the movies, to amusement parks, to any event that a young boy might be interested in. Cultural things, too. I took him to the plays in my school. And I read to him a great deal. We took long walks, played games together. We had good times, wonderful times. We loved him deeply, you see. And he loved us.” She paused and, with scrupulous dignity, took out a handkerchief and blew her no
se.
“And all this was done with the approval of the boy’s mother?”
“Not only that. She was included as much as possible. She was as much a part of our family as Tray.”
“And she manifested no antagonism, no hostility? There were no arguments, no animosity, no ugly scenes?”
“Not at all. I’d say it was a normal relationship for such a situation.”
“Situation? Would you explain, please?”
“Well—” The woman looked up at Annie, as if searching for some sisterly connection. “We had just lost our only son. It was a terrible blow.” Her voice broke, but she straightened her shoulders, quickly regaining control. “He was all we had, you see. We couldn’t have others. And he came a bit late. Anyway, it was a terrible tragedy for all of us. So we all sort of pulled together to soften the blow for everyone. We took solace in each other.”
It was, Annie thought, strong and involving testimony, which the woman gave with clarity and dignity. Despite all her own caveats, she could not help but sympathize. The loss of a child had to be the most devastating trauma for a woman to go through. Suddenly, she remembered the pain of giving birth, and seeing her children for the first time. Quickly, she wiped the image from her mind. The man’s death was not the issue in this case.
“And Tray? What would you say the impact of his father’s death was on him?”
“It’s hard to tell,” Mrs. Waters said slowly. “I’d say he must have detected the sense of grieving around him. Young children sometimes don’t react the way adults expect them to. I’m a teacher, you see—” She seemed to have interrupted herself, to have started off on another track, and then hesitating, came back again. “I’m sure he felt a sense of something missing. We tried to make up the loss. To show him little of the terrible hurt to ourselves.”
