The Mongol Reply

by Benjamin M. Schutz

  “I believe Ms. Tully poses no threat to her children. Her ban from seeing the children has had an adverse impact on the children and should be lifted immediately. The exclusion from the marital residence is a more complicated matter.

  “I think that if Ms. Tully’s rights as a parent were abridged because of a concern over dangerousness to the children, they should be fully restored as I find no grounds for that concern. However, I think that putting Mr. and Ms. Tully together under one roof is unwise. To exclude Ms. Tully on the grounds that she is the dangerous or violent one is not accurate. This is a volatile pair. In fact, should her allegation about Mr. Tully prove true, then the evidence would tilt towards him as the more dangerous. Witnessing conflict and especially violent conflict between parents is indisputably harmful to children. Putting these two together is an invitation for that to happen. They should be kept apart, at least until I can finish my evaluation and the court can rule on the custody issue. That determination will have substantial financial consequences and may clarify the options for living arrangements for this family.”

  “How much more do you have to do in your evaluation?”

  “The direct observation and home visit sequences. One of the requirements for this aspect of the evaluation is that the children spend an equal amount of time with each parent before I observe them so that what I see is not a function of stranger or reunion behavior or a transition effect.”

  “How do you accomplish that, Doctor?”

  “Either equal time spent in two different houses or, when the parents haven’t separated, equal time under one roof.”

  “But you think these parents should be separated.”

  “Yes, Your Honor.”

  “Do you have any other conclusions or recommendations for the court at this time, Doctor?”

  “No, Your Honor.”

  “Thank you. You may cross-examine now, gentlemen. Mr. Garfield.”

  “Thank you, Your Honor.” Garfield leaned forward at the lectern, adjusted the microphone and began. “Dr. Reece, are you a trained psychotherapist?”

  “Yes.”

  “Do you recognize the concepts of transference and counter-transference?”

  “Yes.”

  “Please tell the court what they mean.”

  “They refer to the ‘transfer’ of important elements of one relationship to another.”

  “Why do psychotherapists care about that?”

  “Some schools of psychotherapy believe that it’s these transfers that are at the heart of dysfunctional relationships.”

  “I see. So if I had a rotten relationship with my father, I’ll be prone to transfer that to my relationships with other older males, like the judge here, and have a rotten relationship.”

  “That’s only one determinant of the actual relationship; the other person’s transferences are also a part.”

  “That’s counter-transference, right?”

  “Counter-transference refers to the therapist bringing aspects of old relationships into a current one with a patient.”

  “I see. Now, is this restricted to psychotherapy relationships?”

  “No. It can happen in any relationship.”

  “I see. Are therapists supposed to do anything about their transferences?”

  “They’re supposed to be aware of them and make efforts to ensure that they don’t distort their relationship with the patient.”

  Carlson sat and listened as the questions began to collect like vultures circling lazily over a corpse. “Objection, Your Honor. I fail to see the relevance of this line of questioning about psychotherapeutic esoterica.”

  “Where are you going with this, Mr. Garfield?”

  “This isn’t esoterica. Dr. Reece has already said that it can come up in all kinds of relationships and that psychologists have to be on guard that it doesn’t affect their work. That’s the relevance.”

  “Objection overruled. Proceed.”

  “You’ve written extensively on the subject of custody evaluations, haven’t you, Doctor.”

  “Yes.”

  “One of your positions is that the evaluator has to be objective, neutral and impartial. Isn’t that correct?”

  “Yes.”

  “So that your opinions don’t reflect bias on your part, or are colored by your feelings.”

  “Correct.”

  “You said you’ve been doing these evaluations for fifteen years. Now, Doctor, I don’t remember seeing you in court until the last few years. Where did you previously practice?”

  “California.”

  “California. What brought you out here, Doctor?”

  “I wanted a change of scenery.”

  “A change of scenery. Don’t be coy, Doctor. You moved all the way across the country. What were you running from, Doctor?”

  “Objection, Your Honor, this is argumentative and irrelevant.”

  “Sustained. Do not badger the witness, Mr. Garfield. Ask your questions, do not answer them also.”

  Garfield nodded to the judge. Carlson’s heart was going like a boxer’s in the late rounds. He poured himself a glass of water and took out a pill and downed it. What had Garfield discovered? Reece was a charlatan, an imposter? He’d lost his license? He was a sex offender, a pedophile?

  Carlson waited for his pulse to leave his ears and thought some more. Nothing that glaring. There’d be no need for this roundabout foundation. It was more subtle. It might be repaired.

  Garfield stepped around from the lectern and faced Reece. He swept his coat tails back and dug his fingers into his waistband, his trademark stance in court.

  “Are you married, Dr. Reece?”

  “No.”

  “Objection, Your Honor. We do not require defense attorneys to be felons also,” Carlson snapped.

  “Your Honor, I’m trying to make the issue of transference relevant to this particular case. By exploring Dr. Reece’s previous relationships.”

  “Overruled.”

  “Do you have any children, Dr. Reece?”

  So it had come to this, Reece thought. His oath robbed him of any hiding place. His private scourgings were one thing. This was another. He knew when to stop, when he’d had enough. He was adrift. It was so warm here.

  “Did you hear me, Dr. Reece? Do you have any children?”

  “No.”

  “No? Didn’t you have a child, Dr. Reece? A daughter. What was her name?”

  It had been years since he had spoken her name. Tears clouded his eyes and the microphone seemed to be swaying in its stand.

  “Danielle.”

  “Danielle. How old was she when she died?”

  “Sixteen.”

  “Sixteen. And how did she die, Doctor? Remember, you are under oath.”

  “She committed suicide.” Reece had never been able to say that she killed herself.

  “Why was that, Doctor? You’re a trained professional. I’m sure you must have some thoughts on her motivation.”

  Reece shielded his face from Garfield and answered the question. Judge Kenniston leaned over and said gently, “Doctor, you’re going to have to speak up. We can’t hear you.”

  Reece nodded and winced. “She had been arrested for shoplifting. The police wanted to teach her and her friends a lesson, so they locked them up in the adult detention cell. She was so ashamed that we’d find her there that way.” Reece stopped. He’d lost his train of thought. The words wouldn’t lie in a straight line so he could just repeat them until he got to the end. They kept flying away in all directions. “She asked to go to the bathroom. They didn’t watch her very well. She found some bleach in a custodian’s closet and drank it. She died two days later.”

  “Pretty extreme reaction, don’t you think? But she was a troubled child wasn’t she, Dr. Reece?”

  Reece was lost in the ever-present past. He was at his daughter’s bedside holding her hand, stroking it over and over. They couldn’t talk. Her ruined throat wouldn’t permit that. Nor could she eat. The bl
each had burned holes in her esophagus and trachea. She was on a respirator that entered through the new mouth she had between her collarbones. Her skin was now grey. Even her famous red hair seemed dimmer. Reece put Vaseline on her blistered, raw lips and watched her die without ever regaining consciousness. Her death was their last conversation.

  “Doctor, I asked you a question.”

  “Yes, I’m sorry. Could you repeat the question?”

  “Your daughter was in therapy before her suicide, isn’t that true?”

  “Yes.”

  “What for, Doctor?”

  “Objection, Your Honor. Dr. Reece’s mental status is pretty far afield. His daughter’s is entirely irrelevant to the matter before the court.”

  “I don’t think so at all, Your Honor,” Garfield interrupted. “We’ve entrusted the fate of this family to a man whose judgment I think is profoundly flawed. His own child was in treatment for depression. She killed herself rather than face her parents. What does that say about him as a father? Should we be letting him sit in judgment of other families? His wife left him …”

  Kenniston slammed his gavel. “Enough Mr. Garfield. This is cross-examination, not summation. Dr. Reece does not sit in judgment of anyone. If you will notice, he’s a witness. I am presiding over this matter. His job is to collect information and evaluate it according to his profession’s tenets. If you cannot show a connection between this material and his judgment, and I mean promptly, I will disregard this entire line of questions as a fishing expedition and a barren one at that.”

  Garfield approached even closer to Reece. “Your daughter was in treatment for depression, correct?”

  “Yes.”

  “After your daughter’s suicide, your wife left you, isn’t that also correct?”

  “Yes.”

  “Why did your wife leave you, Doctor Reece?”

  “She blamed me for Danielle’s death. We never got over it …”

  “It was more than that, wasn’t it? The records of your divorce in California indicate that she believed you were depressed and suicidal yourself, Doctor. That she attempted to have you involuntarily committed to a psychiatric hospital for treatment. That you never received treatment for your depression. That your depression is what drove her away. Your inability to relate to her.”

  “Objection. There’s no foundation, Your Honor.”

  Garfield reached into his briefcase and pulled out a file. “This is a copy of the entire case file of Reece v. Reece in San Diego County. I ask that it be entered as evidence in this matter pertaining to the emotional fitness of Dr. Reece to conduct an evaluation of anyone.”

  Garfield presented the case file to the judge.

  Carlson stood up to object. “Your Honor, we have not had any time to review these documents, to check that they are complete, unaltered.”

  “May I respond to Mr. Garfield’s depiction of my divorce?”

  “Mr. Carlson, do you have any objection?”

  Lou Carlson had to protect his client. Reece had a haunted look that did not inspire confidence. Could he take a chance and let him try to rebut Garfield’s indictment or was he going to decompensate right there on the stand and prove all of Garfield’s points? Worst case, they’d be back to square one with a new evaluator. Maybe Reece could pull it together. He didn’t have a bad feeling when he thought about saying no, and so he did.

  “All right, Doctor.”

  “After our daughter died, we were devastated. Neither one of us could reach out to console the other one. We did things that drove each other away. Mr. Garfield is right about one thing. As a trained professional it’s easy to believe that you have the tools to make you immune to the mistakes that other people make. And so, you’re even harder on yourself than other people are when you turn out to be just like everyone else. Danielle paid a terrible price, one that her perfectionism demanded of her. I’ve come to accept that it wasn’t all my fault. What exact part is my fault is a piece of knowledge that I’ll never have. That I have any part of the responsibility is a stake in my heart every day.

  “I get up every day and live with it, around it and in spite of it. I do my work with it, around it and in spite of it. My wife tried to have me committed. She was unsuccessful. I was not a danger to myself or anyone else. I was grieving for my daughter. Later, for myself. I was not able to grieve for my wife and her loss until it was too late. We both lost, twice.

  “That was four years ago. Mr. Garfield thinks I may have a transference relationship with Serena Tully. That her suicidal history reminds me of my own daughter. That I’ll try to protect her like I couldn’t protect my own child. Very perceptive of Mr. Garfield. I’m aware of that. I have been every step of the way. That’s why I had the psychological testing done, interviewed her current therapist, the housekeeper, read the old therapy records. To get other perspectives. To make sure that no ‘bias’ was running uncorrected through my work.

  “My work is transparent. My files are open for discovery, the foundation and reasoning for my judgments are clear in my reports. I am subject to deposition, cross-examination and rebuttal testimony. If my reasoning is flawed, for whatever reason, it will be obvious to the court. If Mr. Garfield disagrees with my judgment, he should demonstrate its weaknesses. You can allege the operation of bias in any case. I will be like each parent in some ways and different in others. How many different biases might be at work? Do they all point in one direction or do they cancel each other out? If bias is the explanation, you should see that I didn’t pursue the parents’ concerns equally, didn’t weigh the same data equally. If you can’t show that, then you’re crying wolf in the courthouse.”

  CHAPTER FORTY-SIX

  “Does either of you gentlemen intend to call any other witnesses?”

  Carlson said no. Garfield stood and announced, “We would like to call Thomas Tully, Jr. as witness.”

  Kenniston looked up from his writing. “Approach the bench, gentlemen.”

  Looking down at them, Kenniston turned towards Gar-field, “To what end would you put a six-year-old on the stand, Mr. Garfield?”

  “To dispute Dr. Reece’s testimony. He told his father that he didn’t feel comfortable with Dr. Reece and so he didn’t tell him how he really felt. He is afraid of his mother and has been showing symptoms of stress as the court date approached.”

  “He has? Really? How is it that he knew that a court date was approaching, Albert? How would he know that increased time with his mother was the issue?” Carlson snapped.

  “Perhaps his father was discussing it with me on the phone and he overheard him.”

  “Your Honor, if you recall Doctor Reece’s testimony, he had another psychologist administer and score those tests to the children, the results of which were consistent with the notion that they were not afraid of their mother. Mr. Tully’s nanny, who has seen the children daily for three months, says they aren’t afraid. Mr. Garfield did not dispute the evidence. He attacked Reece’s personal life. Maybe he thinks we should put all those people on the stand to see if their lives have been free of any incident that might ‘transfer’ to the case at hand. Perhaps we should subpoena the people who made the tests, see what their life histories are? This transference stuff seems to cut two ways, Your Honor. Going through experiences like your patients do can deepen your understanding, your empathy for others, like nothing else. I don’t think that Dr. Reece has given Serena Tully a whitewash here, nor did he rely on his perceptions alone.”

  “As for putting the child on the stand,” Kenniston enunciated his next words clearly and slowly, “not while I’m on the bench. That was the point in having Dr. Reece do an evaluation. Barring extraordinary circumstances, six-year-olds will not be asked to testify in front of and about their parents. Are we clear on this matter, Mr. Garfield?”

  Garfield nodded. Time to get Pecorino started on that shadow evaluation.

  “Good, gentlemen. If you’ll return to your clients. I’m ready to rule.”

  K
enniston folded his hands on the desktop in front of him and looked out at the couple and their attorneys. He wondered if there was anything worse than a ground-zero custody case. The preponderance standard made so much depend on so little.

  “The court rules the temporary custody award to Mr. Tully be vacated. Mrs. Tully is restored to full rights as a custodial parent for the minor children, Thomas Drew Tully, Jr. and Tina Nicole Tully.

  “The decision to freeze the couple’s assets will remain in place. Mr. Tully shall pay spousal support to his wife according to the guidelines. I will rely on you gentlemen to do the calculations and have them filed with the clerk promptly.

  “As for the exclusionary order, I will vacate that also. I am troubled by Dr. Reece’s testimony as to the volatility of this couple. Having them both under the same roof does not seem to be in the best interests of the children. Considering Doctor Reece’s comment on the need for equality of time for the evaluation and stability for the children, I rule as follows. The children shall remain in the marital residence. Mrs. Tully shall return to the residence and spend whatever percentage of time with the children Dr. Reece shall deem necessary to allow the evaluation to proceed to its conclusion. Mr. Tully shall not be in or near the premises while Mrs. Tully is there until the direct observation and home visit sequence with his wife has been completed. Then the situation will be reversed, with Mrs. Tully vacating the house until Mr. Tully’s portion is completed. From that point until this matter is heard by the court, only one parent shall reside in the residence with the children at any time. The cost of the lodgings for the nonresident parent shall be factored into the spousal support award.”

  The attorneys sat waiting for Kenniston to continue. When he didn’t, Carlson rose.

  “Excuse me, Your Honor, do I understand your ruling to be joint legal and physical custody with the time share to be determined by Dr. Reece until his evaluation is complete?”

  “You understand me correctly, Mr. Carlson.”

  “And that for the duration between the end of the evaluation and settlement or trial date, we are to work out a timesharing arrangement and lodgings for our clients, provided only that they shall not both reside with the children at any time nor shall the children leave the marital home?”