by Avery Corman
Joanna’s testimony began slowly, her lawyer carefully established dates, an outline of the years with Ted, and then with Billy, up to the present. Ted found himself remembering—wild stray thoughts, the first time he and Joanna made love, this beautiful woman whom he no longer knew, wrapped her legs around him. The first time he held Billy, how tiny the boy seemed. The first time he watched Joanna breast-feeding the baby. She did breast-feed him. That would not be in the testimony. He had forgotten that.
Gressen then began to ask Joanna about her job and her responsibilities at work. He linked this to an earlier time.
“Mrs. Kramer, did you work in a job before you were married?”
“I did.”
“And after you were married?”
“I didn’t work after my son was born.”
“Did you wish to?”
“Yes.”
“Did you ever discuss with your ex-husband your desire to work?”
“I did. He said no. He strongly objected to my working.”
They began to focus on Ted, a man who resisted his wife’s personal growth. They were seeking to justify Joanna’s leaving. Ted had said no to her working. It did not seem possible to him that he could have been so narrow. He could hardly recognize himself from the testimony. Yet he knew he had been that person they were describing, even though since then he had changed. The judge called a lunch recess, and Ted watched Joanna conferring with her lawyer. He wondered if she, too, had changed, if there were two different people in this room than had been in that marriage, and what if they were attracted to each other, what if they met now, as the people they were now—would they end up in this room?
Shaunessy began to gather together paper that was on the table in front of them—copies of the petition, the psychologist’s report, paper all around, the stenographer’s record spilling out of his machine like a long tongue, note paper, legal documents.
Joanna was the first to leave the courtroom with her lawyer. After a diplomatic delay so they would not be in the same elevator, Ted left the room with his lawyer—the petitioner separated from the respondent by people, by paper, by legal jargon, by time, as they took a recess from this stately courtroom, this marital graveyard.
EIGHTEEN
JOANNA’S LAWYER CONTINUED TO work on the apparent soft spot in her case, the fact of her leaving. He was attempting to convert it into a strength—that her decision was evidence of the depth of her frustration, caused by the respondent, who had left her no choice.
“Would you tell the court, did you enjoy playing tennis?”
“Yes.”
“And your ex-husband, how did he respond to your enjoyment of tennis?”
“He resented it. He called himself a tennis widower in front of people.”
Emotionally confined, she found herself with the additional burden of a small child.
“Did you love the child?”
“Very much.”
“When he was an infant, how did you feed him?”
“I breast-fed him. So I could be closer to him as a mother.”
This was not a circumstance where one side overlooked any possible advantage.
“And yet you chose to leave your child?”
“My predicament was overwhelming. If my husband had been open to my having my own interests, I would not have been in such despair.”
“That’s only true in part,” Ted whispered to his lawyer. “She didn’t have to leave.” Shaunessy nodded. He had been here before. “I even asked that we seek help.” “Shhh,” the lawyer said and placed his hand on his client’s arm to reassure him.
“Everything became one—the marriage, my husband, the pressure, the child. It was all one to me because it was one. My husband had cut off my options.”
“And what did you do next?”
“I took the only action I could see for myself under the circumstances. Since everything was one to me, I couldn’t pick the parts out of the whole that needed to be fixed. I had to free myself of the whole, of all of it. And I left to make a better life for myself.”
“So you gave up your child?”
“No, not my child per se—my marriage, my husband, my frustration, and my child. I was leaving this entire package my husband had tied up so tightly.”
“Mrs. Kramer, why have you set up residence here in New York?”
“Because the child is here. And his father is here. As a mother, I don’t want my child to be separated from his father.”
“Goody two-shoes,” Shaunessy muttered to his client.
Gressen queried her as to the time when she first began experiencing a sense of loss regarding the child. She fixed this at the morning after her leaving.
“What did you do about this sense of loss?”
“Nothing then. I hadn’t purged myself yet of my frustrating marriage experience.”
“Objection. The witness is giving an opinion.”
“Sustained.”
“Did you ever call your husband to express your feelings about the child?”
“Yes, I did. Christmas, a year ago.”
Gressen introduced into the record Joanna’s telephone bill, which listed phone calls made to Ted from California, and Joanna stated that the purpose of the calls was to arrange a meeting with the child.
“What did your ex-husband say about this meeting?”
“He was hostile to it. At first, he said he would have to let me know. Then when he consented, he asked me if I intended to kidnap the boy.”
“Did you kidnap the boy?”
“No. I bought him a toy he wanted.”
The psychologist’s report was placed in evidence. Dr. Alvarez had not drawn any negative conclusions on either side. Joanna was characterized as “self-assured” and the environment she planned for the child was “suitable for the child’s needs,” which the lawyer used as testimony to Joanna’s fitness. Then the circumstances of her last meeting with Billy were recounted, Joanna telling how pleased the boy was to be with her.
“Did the child say that in so many words?” Gressen asked.
“Yes. He said, ‘What a really good time this is, Mommy.’ ” Billy’s enthusiasm had been introduced as evidence.
Finally, Gressen asked her, “Can you tell the court why you are asking for custody?”
“Because I’m the child’s mother. You said to me, Mr. Gressen, when we first met, that there were instances when mothers were granted custody of their children even when they had signed away custody. I don’t know the legal wisdom of that. I’m not a lawyer, I’m a mother. I know the emotional wisdom. I love my child. I want to be with him as much as I can. He’s only five. He needs me with him. I don’t say he doesn’t need his father. He needs me more. I’m his mother.”
Gressen had worked his client and the clock. Joanna’s testimony had run to four-thirty in the afternoon. Judge Atkins called a recess for the following day, leaving the case in behalf of motherhood, delivered by a poised attractive mother, to stand unchallenged overnight.
“Don’t worry, Ted,” Shaunessy said. “Our case is still you. But we’ll try to move her some tomorrow.”
DIRECT EXAMINATION BY THE petitioner’s lawyer was essentially a series of prearranged questions to arrive at a conclusion agreed upon by lawyer and client. Joanna was less poised under cross-examination. Where Gressen’s style was sly, Shaunessy worked from the position of the gruff, older wise man. He cut into Joanna’s testimony, made her account for the blocks of time that had passed after she first left to the Christmas phone calls, from the Christmas meeting to her most recent return.
“When you originally left, and you had this sense of loss you referred to, did you send the child letters, gifts?”
“No, I—”
“Did you send anything?”
“I was still living through my experience with my husband.”
“You sent the child nothing at all to express your love?”
“I sent them in my heart.”
“In your
heart. Did this small child grasp the symbolism?”
“Objection. Counsel is attempting to intimidate the witness.”
“Can we hear the question again?” the judge said to the stenographer, and Ted leaned forward in his chair. Was the judge not listening? Was he sitting up there, his mind drifting while this important issue was being decided? Or did he want to make certain of his ruling? He was the judge, though. He could do anything he wanted in his courtroom. The stenographer read back the question.
“Overruled. The witness can answer.”
“All I know is that Billy has always been happy to see me.”
“How long do you plan to live in New York, Mrs. Kramer?”
“Permanently.”
Shaunessy picked up on the word permanently, using it as a weapon.
“How many boyfriends have you had—permanently?”
“I don’t recall.”
“How many lovers—permanently?”
“I don’t recall.”
“More than three, less than thirty-three—permanently?”
“Objection.”
“Overruled. The witness will answer, please.”
“Somewhere in between …”
Shaunessy had told Ted there was little to be gained from making an issue of a mother’s promiscuity, unless it was extreme, which they would have difficulty proving. He obviously had other intentions here.
“Do you have a lover now?”
“I have a friend.”
“Is he a lover? Do we need a definition of terms, or are you the Virgin Mary?”
“Objection!”
“Sustained. Mr. Shaunessy, do you really expect an answer to a question of that nature?”
“I would request a direct answer to the direct question, Does she at present have a lover?”
“I’ll allow that. The witness will answer, please.”
“Yes.”
“Is that permanently?”
“I … don’t know.”
He pressed on. How many jobs had she held permanently, what had she done permanently, when she went to California was that permanently, when she came to New York to see the child was that permanently, when she went back out to California was that permanently, when she came back to New York was that permanently? He was taking a run at her stability and Joanna was faltering, she began to stammer, she became vague, “I didn’t … know at the time …” She lowered her voice so that the judge had to ask her to speak up.
“We don’t really know, then, do we, when you say permanently, if you’re really planning to remain in New York or even keep the child, for that matter, since you’ve never really done anything in your life that was continuing, stable, that could be regarded as ‘permanently’?”
“Objection! I must ask that Counsel be prevented from harassing the witness!”
“Well, there is an admissible question in there,” the judge said. “Do you intend to remain in New York permanently, Mrs. Kramer?”
“Yes,” she said quietly.
“I have no further questions at this time.”
Gressen was entitled to a redirect examination of the witness, and he carefully reconstructed their motherhood position—“mother” their key word; “As a mother, I felt …” “Being a mother, I could tell …” used throughout by witness and lawyer as if to trigger an automatic response in the judge. They went over the steps Joanna had taken to gain custody of the child, her return to New York, her search for a job, her finding an apartment where “As a mother …” she knew Billy would be comfortable, the legal procedures she undertook—hiring the lawyer, filing the petition, down to appearing in court on this day—all because of her longings as a mother, details presented to prove the deep commitment to a young child by a stable, responsible mother.
Shaunessy had a last recross-examination.
“Mrs. Kramer, how can you consider yourself a fit parent when you have been a failure in virtually everything you have ever undertaken as an adult?”
“Objection!”
“Sustained.”
“I’ll ask it another way. What is the longest personal relationship you have ever had in your life other than parents and girl friends?”
“I’d have to say—with my child.”
“Whom you’ve seen twice in a year? Mrs. Kramer, your ex-husband—wasn’t he the longest personal relationship in your life?”
“Yes.”
“How long was that?”
“We were married two years before the baby. And then four very difficult years.”
“So you were a failure at the longest, most important relationship of your life?”
“Objection.”
“Overruled.”
“I was not a failure.”
“What else do you call it? A success? The marriage ended in a divorce!”
“I consider it less my failure than his.”
“Congratulations, Mrs. Kramer. You have just rewritten matrimonial law. You were both divorced, Mrs. Kramer!”
“Counselor, do you have a question of the witness?” the judge asked.
“I’d like to ask what this model of stability and responsibility has ever succeeded at. Mrs. Kramer, were you a failure at the longest, most important personal relationship of your life?”
She sat silently.
“Please answer the question, Mrs. Kramer,” the judge said.
“It did not succeed.”
“Not it—you. Were you a failure at the most important personal relationship of your life?”
“Yes,” she said barely audibly.
“I have no further questions.”
Joanna left the witness stand, looking exhausted.
“Motherhood is tough to score against,” Shaunessy said to his client. “But we drew blood.”
AFTER A LUNCH RECESS, the hearing continued with Joanna’s father, Sam Stern, taking the stand for the petitioner. His function for Joanna was to serve as an eyewitness to the mother-son relationship. Gressen restricted his line of questioning to this one area, with an even narrower emphasis on the recent Saturday when Joanna took Billy for the day, and Sam and Harriet joined them. As he heard Sam describe the pleasant afternoon and the ease with which Joanna dealt with her child, Ted realized he had been had. That day was an ambush. The grandparents had been there for the specific purpose of providing this particular testimony. Shaunessy attempted to cross-examine, but he could not make inroads on the limited testimony. This is what the man saw with his own eyes—mother and son got along very well.
As he came off the witness stand, Sam tried to slip past Ted at the table without looking at him. Ted reached out for Sam’s arm.
“Sam?”
Sam Stern’s head was down. Without ever looking up, he said, “Ted, you would do the same for your child, wouldn’t you?” and he moved on quickly.
Gressen did not call any other witnesses. He had assembled a highly compact case. Motherhood was the main issue. The mother was the main evidence.
THE ARGUMENTS FOR THE respondent began. Charlie was the first witness, Shaunessy referring to him constantly as “Doctor” to give more weight to the testimony. The doctor vouched for Ted’s character and for his excellence as a parent.
“Would you trust your child in his care?”
“I already have. Many times.”
He described outings in the city with the children, his firsthand observations of the boy’s affection for his father, and the father’s for the boy. With emotion in his voice, he said, “I don’t think I could have been as good a father in these circumstances.”
Gressen declined to cross-examine. With a smile, he virtually dismissed the testimony as inconsequential. He adopted the same tactic after the testimony of the next witness, Ted’s sister-in-law, Sandy, who described Ted’s concern for Billy’s welfare, which she had observed, and said, “The boy adores him.” Thelma took the stand next and was overwrought. When Shaunessy asked her:
“What have you been witness to that would attest t
o Mr. Kramer’s competence as a father?”
“Their relationship,” she said and she nearly cried.
“Objection, Your Honor. The answer is, to be generous, rather vague.”
“Sustained.”
“Can you recall any particular incident that relates to Mr. Kramer’s care of his child?”
“He reads to Billy, he bathes him, he plays with him, he loves him, he’s a very kind man … and if you ever saw them together … there wouldn’t be a trial at all …” and she started to weep.
Shaunessy said he had no further questions. Gressen looked for a second as though he might like to move in on her, but a man who was building a case on motherhood must have thought better than to confront a mother’s tears and he declined to cross-examine.
Jim O’Connor said Ted Kramer was “highly regarded in his field” and “a man I deeply respect.” When he had completed his support of Ted as a competent, respected professional, Gressen decided to not let this witness pass.
“Mr. O’Connor, this person you say was so excellent in his work and such an outstanding professional, didn’t you fire him—twice?”
Ted spun around to look at Shaunessy. Where did they get that information?
“Not exactly,” O’Connor said.
“What exactly?”
“The companies failed. We were all terminated.”
“Even our miracle worker here?”
“Objection!”
“Sustained.”
“I have no further questions.”
Ellen took the stand, and speaking as an elementary school teacher testified that Billy’s brightness and spirit, which she had been witness to, came as a result of Ted’s excellence as a parent. Gressen let her pass. Shaunessy then placed in evidence the psychologist’s report, which held a positive view of the respondent, as well—the apartment was “comfortable for the child,” and Ted was deemed “a competent parent.”
Etta Willewska was called. Shaunessy asked a series of questions about her observations of the household. Nervous, uncertain of language, she spoke in simple terms of the atmosphere in the house. “He is a very sweet boy.” “You should see how he loves his daddy.” “I could take him to school, but they like to be together.”
