By Mark David Blum, Esq.
It has been at least five years since we last communicated. At that time and in our then last communication, you said I was unworthy as a human being and as your son to meet your friends or business associates. Even as my family starved and was on the brink of homelessness, your attitude was “too bad.” Before that, it was 12 years since we spoke; you refused to come to my wedding. We can keep going backwards but ultimately, you and I have hated each other since the day I drew my first breath and you never missed an opportunity to cause me harm.
English, as a language, is woefully inadequate to fully describe how your selfish acts impacted upon my life. The range and depth of damage you caused traversed generations. It was not just me that was damaged. My children and theirs suffered as well.
Don’t worry Pop, as I don’t hold you solely responsible. Your first wife, my Mother was no better. So as to bring everybody else up to speed: When I was age 6, my folks divorced. Rather than pay the court ordered child support of $30 a month for my sister and me, my father chose to poof and disappear until I was 16. Meanwhile, Mommy dearest married the man she was cheating on my father with, had a third child, and then put her eldest child, me, out to pasture and into a series of foster homes. When Daddy dearest showed up when I was 16, he set in motion a chain of events that resulted in my dropping out of high school and thumbing my way around the world for about eight years. Ultimately too, I married and divorced and which marriage produced a daughter, now herself divorced.
This issue comes to the fore as serendipity has driven me into a handful of Family Court cases of late where due to my own background, my role as dispassionate advocate transferred into my life situation as a child of divorce and the parent and grandparent of children of divorce. For lack of a better depiction; too many times in this past year I have found myself “re-experiencing” and manifesting symptomology of Post Traumatic Stress Disorder. Fret not: I am not going to shoot imaginary V.C. But I have been a bit too quick to speak up; and loud.
My breaking point happened about a year ago. Representing a father in a family court case; the custodial mother got into trouble with Child Protective Service. Father, who did not live with Mother and was not part of the dispute with Mother and CPS, stepped up for custody. When the family court started using the best interests of the child test, I nearly lost control. Here was a father who had done no wrong desperately trying to hold his family together and be involved in his child’s life; and a family court judge was insisting that foster care with the maternal grandmother was the better option. Dad lost. It happened again and then again once more in other cases. Finally, yesterday I was able to finally set a situation straight and that father has custody of his child … or will shortly.
“It is settled law that, as between a biological parent (parent) and a nonbiological parent (nonparent), the parent has a superior right to custody that cannot be denied unless the nonparent can establish that the parent has relinquished that right because of "surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" (Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see also, Matter of Michael B., 80 N.Y.2d 299, 309, 590 N.Y.S.2d 60, 604 N.E.2d 122; Matter of Male Infant L., 61 N.Y.2d 420, 426-428, 474 N.Y.S.2d 447, 462 N.E.2d 1165; Matter of Merritt v Way, 58 N.Y.2d 850, 460 N.Y.S.2d 20, 446 N.E.2d 776). The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child (Matter of Male Infant L., supra, at 427; Matter of Merritt v Way, supra.” (sic) as cited in Michael G. B., Respondent, v. Angela L. B., 219 A.D.2d 289; 642 N.Y.S.2d 452 (4th Dept. 1996).
I simply can no longer stomach the perception and attitude of certain folks involved in the custody and family court system … who themselves have no children nor never been married let alone endured a divorce, people who never experienced being forcibly denied access to their parents, or raised by foster parents … who sit and make snap judgments and decisions based on nothing more that gut feelings. Usually the worst offenders are the 25 year old CPS workers or the 75 year old grandfatherly law guardians or even the ‘win hungry’ young public defenders; all of whom see the question of custody as sanitized and utopian. Everybody they look upon is judged by the standards by which they themselves choose for their own life. What is lost is the true connection a child has to a parent; any parent. To quote a well intentioned Law Guardian, “we don’t want people to be adequate parents, we want them to be the best parents they can be.” In my opinion, that standard is met one way; leaving parents and child alone and giving them time and space to spend a lifetime together.
Until you have lived it, you have no idea what life is like when your parents don’t want you in their lives. It is an unimaginable horror to bear witness to the severance or prevention of a child to be raised with and have access to a parent when that parent has caused no harm.
Having a father such as do I, teaches certain hard lessons not found in many theoretical guides. Watching a man thrive on his alcoholism, brag about his seven failed marriages, or boast about his excesses in life … who at the same time ignores the plight of his own children … opens your eyes to the true priorities of a child. As with any child, they just want to be loved.
But now there is a new standard at work in our courts that really scares me. So much concern is placed on the wellbeing of the child “at that moment in time” that the bigger damage gets ignored. Moving a child from foster care home to their father’s house is NOT a traumatic event. Sure, there is disruption and a bit of instability. It might even be scary. But it is not a transition that requires time or monitoring. Any trauma that does result will immediately dissipate the moment Daddy assures the child they are home and are safe.
Also this thing with young children; about one parent or another not being involved: When a child is newborn or of very tender years, and the parents split up, there really is no such thing as visitation. Have you ever tried to “visit” a baby? Sitting there for a couple hours staring at that bald fat screamer with a bag of crap strapped to its waist is meaningless and will drive any father away … at least until the child is of sentient age. These are common and reasonable responses by males estranged from the child’s mother. Courts however and the guardians that uphold the law see this as a failing on the father’s part. Similarly, when a parent runs and keeps the other parent at a distance, that time is counted against the absentee parent. It is a horrible situation when the now four year old child tells a judge she has never “seen” her father; pictures and eyewitnesses notwithstanding.
Two weeks ago during a recess in a criminal trial, I was up to my usual bullying of the prosecutor. During our chat he told me that he would never want to be on my side of the law. He was appalled at the thought of ever being a defense attorney. One thing he missed, I explained, by not doing any defense work, is that he never gets to see defendants as human beings. No matter how horrible or ugly, everybody has friends and those they love and who love them. Good people find themselves in bad situations or make bad decisions. Until you have walked in their shoes or at least stop seeing the person before you as but a theoretical profile, justice will never be done.
That is the goal, is it not? Do we not seek justice for a child and the parents? Or, is it just our own value system which is being adjudged?
I know not.
What I do know is the rage and damage I suffer will go with me to the grave. My father now lives his life in a hell of his own making. As ‘some’ vindictive Jews are known to say, “may he live another hundred years.” I would only add that I know he will spend every waking moment of his remaining time wishing he could undo the damage he wrought.
If only our legal system had such a long memory. Then it too would be more sensitive and realize to those before it are not abstract principles but human beings. Decisions made infect the next fifty years of that child’s life.
Ask my Dad. Ask my daughter.
