Thursday, May 30, 2013

Child Custody Cases

Last week, I wrote about child custody cases and a little speech I give to the parties to impress upon them that I cannot make the best decision on how they raise their children.  Only they can do that.

Fortunately, most parents can put aside their hurt and anger and make decisions with the best interests of their children primarily in mind.  Unfortunately, those who cannot make for emotional, bitter and difficult trials over which a judge presides.

Minnesota Statutes guide the judge by specifying different criteria that must be examined when deciding child custody issues.  These include, for instance:  Which parent has been the primary caregiver for the child?  Are there differences in culture or religion which should be considered? 

Sometimes, a judge can order joint custody.  This can work very well when the parents generally agree on how to raise their child, and can be flexible when the schedule of their child or the other parent changes.

Sometimes, however, a parent will ask for sole custody, but if they cannot get it, they ask for joint.  I made an order once that provided for joint custody in such a situation.  I had expected that, once the decision was made, the parents could put aside their differences enough to do the best for their children.  I was wrong.  The fighting continued and a year later, they were back in court and I awarded sole custody to one parent. 

I often wish I could see into the future so I could be sure the decision I make is the best one possible. 

One very troubling child custody case involved a mother who claimed father sexually abused their young daughter during a visit.  For two days of the trial, the evidence pointed to the fact that the mother had made this up and convinced the young child to tell a story.  One the third day of the trial, the child’s social worker testified.  It was clear to me that father had, in fact, abused her.

I gave custody to mother and required father to complete sex offender treatment before he could have custody again.  He told me, “Judge, I cannot.  I did not abuse her.”  I presume he did not see his daughter again. 

I believe I made the correct decision, and with the evidence I had at the time, I would make the same decision again.  I must confess that this case has weighed on my memory for the many years since it was decided.

Many decisions we make are hard and weighty.  I have done the best job I could with the information I had available when I decided.  I trust and pray that I have made the correct decision. 

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Next week:  Angels All Too Few

Thursday, May 23, 2013

I’m not the Best Person in the Room to Make That Decision

Marriage dissolution cases – divorces – are some of the most difficult cases for judges to decide.  Two people, once in love, now are not.  So, in addition to dividing up the property, etc., the parties very often deal with raw emotions that cloud their judgment.

New techniques for intervening early in the process, in an attempt to reach the parties before their positions have hardened show much promise in lowering the acrimony and making the process easier.

When there are children involved, the situation can become much more problematic.  Sometimes, the parents become so angry with the partner and so eager to “win” that they lose sight of the most important part of the case:  the best interests of their children.

I have made it a policy, whenever custody and parenting time of children is an issue, to let the parties and attorneys know up front that I will bifurcate the trial – try it in two parts.  The most important part goes first – the custody and parenting time of the children.  The least important part, dividing up the property and determining child support and maintenance (formerly called alimony) comes last. 

I never pass up an opportunity to remind the parties what is truly important.  I’ll tell them something like this:

I’m not the best person in this room to make the important decision of how your children should be raised.  I’ll do the best job I can, but I will certainly not make the best decision possible and I very likely may make a decision that is not in your child’s best interest.  It’s not necessarily that I’m a poor judge, but I don’t know your situation.  I don’t know your children.  I couldn’t possibly love your children as much as you do.  I am paid to make these kinds of decisions when people cannot decide for themselves and I will do that in this case, if you make me.  I will guarantee, however, that if the two of you, working with your attorneys, can put your very real feelings aside as much as possible, and concentrate on what’s best for your child, you will reach a decision far, far better than any I will make. 

Often one or both parents may tear up when I’m talking.  At least then I know they have heard what I have said.  These folks want to do the right thing.  Sometimes, it just takes a judge to remind them.

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Next week:  Child Custody Cases

Thursday, May 16, 2013


Recently, I had a routine diagnostic medical procedure.  Well, since you asked, I had a colonoscopy. 

After the procedure, I acquired a certificate from the doctor which read in part:  I have done a thorough examination and do hereby certify, attest and affirm that, notwithstanding the belief of several attorneys who have appeared before him, his head is not up there.

The certificate will be available for the next time that unfair accusation is leveled against me!

On a more serious note, in 2008 my younger brother, Mark, was diagnosed with stage 4 colon cancer.  The cancer had spread to his lymph nodes and his liver.  After surgery, chemotherapy and lots of prayers from family and friends, he was declared cancer free in 2009.  He has not had a recurrence of colon cancer since then.

The first thing my brother did after his diagnosis was to call each and every one of his seven siblings and exacted a promise that we would have the procedure done right away – and a promise that he would hound and harass each of us until it was done.  Colon cancer is quite treatable if caught early (74% survival after five years for Stage 1).  If it spreads to the lymph nodes and liver, it is often fatal (6% survival rate after five years for Stage 4 – so you can see how very fortunate my brother was).

A representative at the Masonic Cancer Center, University of Minnesota has told me “We now have better weapons for fighting the disease: more options for diagnosis and treatment, improved therapies and new technologies for early detection.  We also now know that people can take steps to protect themselves against cancer. Any person at the age of 50 should have a colonoscopy to prevent colo-rectal cancer. If a region of diseased colon is found it can be evaluated and treated before it becomes more problematic. It saves lives.”

Occasionally, I have folks appear before me in Court with who are suffering from one of the many forms of cancer.  I really feel bad for them, as usually it’s no fun to come to court, anyway, much less with that diagnosis weighing on one’s mind.  

So, if you are over 50 years, talk to your primary care physician about whether this lifesaving test is appropriate for you. 


Next Week:  I’m Not the Best Person to Make That Decision

Thursday, May 9, 2013

I Have a Good Memory

Several years ago, I visited our Nation’s Capitol.  While there, I took a side trip to Alexandria, Virginia, to the George Washington National Masonic Memorial.

On the first floor of the Memorial is a replica of the Lodge Room as it would have been in Washington’s time.

Along the wall, sitting on a shelf unprotected, I saw a table clock.  It was the clock that had been on General Washington’s bedstand.  At the time of his death, one of the attending doctors had cut the cord and stopped the clock.

I was amazed that it was standing out in the open, unprotected.

At least, that’s how I remembered it…

A year or two later, I went back and found that my memory had been faulty – the clock was safely behind a locked glass panel.

On December 16, 2003, I was driving to work on a very cold, windy and icy day.  I was traveling at 40-45 miles an hour, the fastest safe speed.  I met a semi going the opposite direction, even slower than I was traveling.  There were perhaps four cars bunched up behind him.  I then saw a car traveling a lot faster, coming up behind the semi and the vehicles behind.  I saw the approaching car as he was trying to slow down, on the centerline, heading for my left front fender.  He regained control and got back in his lane.  I watched in my rear view mirror as he tried to get to the shoulder to avoid the last car in line behind the slow moving semi.  He failed.  He struck the last car in the right rear, causing it to spin on the ice into the oncoming lane, where it was struck by another semi going the same direction I was traveling.

I saw the underside of the car, wheels and axels, as it was thrown perhaps 12 feet in the air.

At least, that’s how I remembered it …

When the sheriff’s investigator read my written summary of the accident, he came to see me and asked, “Are you sure it was a car?  We found a pickup in the ditch.”

I have a very good memory, it’s just very short.

I include these stories for two purposes:  One:  that I need to take into consideration mistakes in observation and recollection when evaluating the testimony of witnesses who appear before me.

And two:  you need to take into consideration that some of the facts I am recollecting may be in error.  I have not intentionally misstated any of the facts in my stories, but please know, there very well may be mistakes contained in them.

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Next week:  Certificate

Thursday, May 2, 2013


Just about every judge on television brings his court to order by striking the bench with his gavel.  It makes for great television, but in the 20-some courtrooms in which I have presided, I have never seen a gavel.

Why is that?  I like to joke that the administrators are afraid I’d hurt myself if there were a hammer on the bench.  (I saw a cartoon once of an angry judge who hit the bench with his gavel, and then pick up the broken eyeglasses he had hit by mistake!)

It seems to me that the purpose of a gavel is to get the attention of the people in the courtroom to call them to order.  It may also be used if tensions and tempers rise in a case and it looks like one or more of the participants may get out of control.

I have found that hitting the bench with my palm has the same effect.  I don’t think I’ve had to do that more than a half-dozen times in 25 years on the bench.  When I have done it, I’m sure the people in the courtroom thought I was quite angry.  Actually, I was not.  It was a purposeful performance to regain control over the courtroom.

 I recall a family court matter where both sides were pro se – no lawyers were present.  The man became more and more agitated until he was almost yelling to me about what a bad person the woman was.  I hit the bench with my palm and said, “Now just a minute!”  I turned to the bailiff and told him to prepare to take the man into custody.  I then turned back to the man and, in a much calmer voice, told him that I really did not want to find him in contempt and order that he be taken to jail, but that if he did not calm down, that is exactly what I would have to do.  He did settle down and was quite respectful during the rest of the hearing. 

Sometimes, a judge needs to appear upset in order to get everyone’s attention and regain control of the courtroom.  Judges can get into difficulty, however, if they really ARE upset and make extreme remarks that offend. 

It’s a fine line, as is much of what judges do.  But if walked carefully, we can become better judges. 

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Next week:  I Have a Good Memory…