Custody

A sharp wind chased me as I all but ran the three blocks of icy sidewalks between my office and the courthouse. I trotted up the atrium stairs, unzipping my parka and stuffing my gloves in my pockets as I went.

“Mr. Sabine?”

Arley Tillis craned down at me over the railing. A beige knit tie dangled from the collar of his chambray work shirt. His outdoorsman’s khakis topped polished brown hunting boots.

“Morning, Arley.”

I raised my voice to float confidence ahead of me up the stairwell. As a police officer, he’d testified a lot. But facing the judge at the end of a marriage was different. Even when all the terms had been agreed to beforehand, the freight of the day made people edgy. We shook hands outside the closed courtroom doors. His was sweaty.

“It’s almost time,” he said.

“Is Deb here?” I asked.

“With her lawyer.”

“This won’t take long,” I said. “They’ll have the final version of the papers. We’ll sign, hand them to the judge, and we’ve done our part.”

Arley took this with a blink.

“All you have to do is not look at Deb,” I said. “The judge might ask if you’ve read the property and custody agreements and think they’re fair. Just say Yes, Your Honor.”

“We need to talk, Mr. Sabine,” Arley said.

The small windows in the courtroom’s doors showed Deb at a counsel table, in a print dress, jewelry, makeup, and styled hair. Her lawyer, Kara Dial, wore her usual dark blue pantsuit and an open-collared white button down.

The court clerk hadn’t yet taken her place at the desk beside the judge’s bench. We had a few minutes.

“What’s on your mind?” I asked.

“Deb’s moving to California. I’ll never see Cressie again.”

I knew his daughter from photos—a wispy-haired three year old.

“Let’s talk in here,” I said, opening the door of the county law library, a small room lined with shelves full of old books. We stood on either side of a scarred table. I shut the door and draped my parka over the back of a chair.

“Deb and her lawyer didn’t mention moving when we were working out the visitation plan,” I said while I used my reflection in the glass front of a bookshelf to straighten the yellow foulard tie I always wore to court.

“They packed a trailer in the middle of the night,” Arley said. “Out behind her apartment. And one of her sisters posted this.”

He handed me his phone with a screenshot from Deb’s Facebook page. Bon voyage, sis. Tell us when you see a movie star.

I asked, “Deb didn’t unfriend you?”

Arley gave me a blank face. His buddies in the police department must have been snooping for him.

“Here’s the trailer,” he said, holding up his phone again to show me a photo.

A streetlight carved out a shadowy view of a rental trailer. The night’s wet snow had laid a rounded cap on the top. The doors hung open. Dim shapes of cargo hulked inside. It was hooked to a big pickup.

“We’ll do our best, Arley,” I said. “Since you’ll be too far away for weekend visits, the judge will let you have Cressie for a couple months every summer.”

“Can I get custody?”

Haggling about visitation wouldn’t move the judge. But for Arley to come on as a father willing to accept the burdens of sole custody rather than be parted from his child might carry the day. I checked the time. Any minute now, the judge would enter the courtroom. We needed to be in our seats or risk judicial ire. I asked Arley, “When Cressie was an infant, did you mix formula, change diapers?”

“All that stuff,” he said. “Fed her, bathed her, rocked her. Deb works part time as a stocker at Walmart. That’s why I volunteered for night shift, so we wouldn’t have to pay for day care. I get off at two in the morning, sleep until Deb leaves for work, and then it’s Cressie and me until dinnertime.”

He talked about his shattered life as if it still existed. The causes of the marriage’s failure became easier to imagine, husband and wife on opposite schedules, never having time for one another, trying to squeeze by on low wages. Her new man was an automotive mechanic who worked for the Chevrolet dealer. No doubt he earned a lot more than Arley.

“How’s Cressie handling the changes?” I asked.

“Pretty well. Sometimes she’ll look over at me like she needs to make sure I’m still there. Will the judge want to talk to her?”

“Three’s too young.”

“I thought so.”

“Did you take this?” I asked, pointing to the photo of the trailer on his phone.

He shook his head. “I wasn’t on duty.”

“The patrol officer took it?”

“I didn’t ask him to.”

“He’ll be at home now?” I asked.

“You want him here?”

“Not yet. As long as I know he’s on standby.”

“So we’ll go for custody?” Arley asked.

“Custody for a dad is an uphill fight,” I said. “Even though there’s officially no presumption, mothers usually get the children.”

“I googled it,” he said. “The mother wins sixty to eighty percent of the time.”

“You’re willing to buck those odds?”

“I don’t have a choice.”

“It’ll add five hundred to your account with me.”

“I’ll get you paid.”

He probably would. Arley was a local product. He’d done a stint in the military after high school, then come back to get a two-year degree in criminal justice from the community college. This lifted him a step up from most of the Tillises in town.

“We ought to ask for a continuance, have a home study done to back you up on your dad skills,” I said.

“She’ll run with Cressie. I’d have to hire a lawyer in California. No way I can afford that.”

“Then we’ll wing our way through right now, if the judge permits,” I said. “At least we’ll catch them by surprise. Remember to let me guide things. I can always ask you another question, but I’ll have a hard time walking you back if you’ve volunteered something I don’t want you to say. If the other lawyer asks a question that you think might make you look bad, answer anyway. But don’t try to explain yourself. On the witness stand, once you start explaining, you’re cooked. What’s important is to always tell the truth. And keep a poker face if Deb calls you a rascal.”

We made it to the counsel table before the clerk said, “All rise.” While Judge Beverly Sanders entered the courtroom, Kara and I traded smiles. Hers conveyed a mild curiosity about our last-minute entrance. Mine returned a false promise that all was well.

The judge sat in her high-backed leather chair. The lawyers stayed on their feet. A portrait of Abraham Lincoln that had hung in the county’s first courthouse gazed down at us from the paneled wall behind the judge’s bench.

“Have a seat,” I told Arley. “Don’t look at Deb.”

“Ready, counsel?” the judge asked.

“Your Honor,” I began, “Mr. Tillis withdraws his consent to the custody agreement.”

Kara shot me a perplexed look.

“Grounds, Mr. Sabine?” the judge asked.

I went to the podium.

“Your Honor,” I said, “newly acquired information requires us to reconsider whether making Ms. Tillis the primary custodian remains in the best interest of the child. My client seeks custody.”

Kara came to her feet.

“Judge, we have an agreement.” She lifted the papers off the table.

“Has the father signed?” the judge asked.

“He has not, Your Honor,” I said, though the judge had aimed her question at Kara.

“Since we are lacking a fully executed agreement as to custody and visitation,” the judge concluded, “the Court is compelled to hear evidence if either party requests.”

“We’re ready to proceed, Your Honor,” I said.

“Your Honor,” Kara said, “we’ll need preparation time. This all comes as a complete surprise, and I have no idea what prompted Mr. Sabine’s client—”

“You sonofabitch!” Deb shouted in the direction of Arley and me.

The judge rapped her gavel.

“Your Honor,” I said, “we have credible information that Ms. Tillis is planning to take the child out of the jurisdiction immediately after this hearing.”

Kara bent to talk with Deb, stood straight, and said, “Your Honor, we withdraw our request for a continuance. Let’s proceed.”

Deb must have said she needed custody today, not three months from now.

The judge said, “The parties having agreed to waive notice, the Court will hear evidence at this time. Mr. Sabine, the issue of custody arises on your motion. Please proceed.”

“We call Mr. Tillis to the stand, Your Honor.”

Seated, sworn, and identified for the record by name and address, Arley angled his face steadfastly away from Deb.

“Mr. Tillis,” I started, “could you please describe your daily routine as it involves your daughter?”

“We—Cressie and me—are together all day.”

“With her mother?”

“No. Deb works daytime hours.”

“And you?”

“I work nights.”

“For?”

“The police department.”

“What is your position there?”

“Patrol officer.”

“How long have you been on the force?”

“Five years and eight months.”

Arley was doing a careful job of just answering the questions, which let us get in a rhythm.

“Can you describe a typical day with Cressie?” I asked.

“Yes.”

“Please do so.”

“Mostly we’re at home. She likes to be a helper. We cook, we clean, we do laundry, we go to the supermarket. She has play dates at the park. And she likes to play school.”

“You’re the teacher?”

“She is.”

“What has she taught you?”

“My colors and my ABCs.”

“Does Cressie have any special needs?”

“No.”

“And her mother gets home around five or six, then you go to work?”

“Yes.”

“When did you separate?

“Ten weeks ago.”

“How have you handled the childcare?”

“The same, except Cressie sleeps at Deb’s on nights when I work.”

“Can you characterize Cressie’s relationship with her mother?”

“It’s fine. We’re good parents.”

His voice started to crack. I went to our counsel table, rummaged in my satchel, took out a notebook I didn’t need, carried it to the podium, and shuffled through the pages.

“Mr. Sabine?” the judge prodded.

I shifted my attention above her head to Lincoln, then down to Arley. He seemed steadier.

“Mr. Tillis,” I asked, “did Deb tell you she was leaving for California?”

“No.”

“No voicemail, no message, no envelope taped to the door?”

Kara came to her feet. “Objection, your honor. Asked and answered.”

“Sustained,” the judge said. “Mr. Sabine, do you have any further questions not related to the communications issue?”

“No more questions at this time, Your Honor,” I said.

“Cross, Ms. Dial?” the judge asked Kara.

“Yes, Your Honor.”

Kara came to the podium and made it hers by taking a moment to scroll her tablet.

“Mr. Tillis,” she asked, “have you always worked nights?”

“Just since Cressie was born.”

“Why do you have this arrangement?”

“So that we can take care of her.”

“She’s old enough for day care,” Kara said.

“We think she’s better off at home.”

“Part of it’s financial, isn’t it?”

Arley looked my way. I avoided any movement that could be taken as coaching him.

“Mr. Tillis?” Kara asked.

“We think it’s best.”

“We all know that police officers don’t get paid what they’re worth,” Kara said. “And Walmart isn’t famous for high wages. So full-time day care would be a squeeze, wouldn’t it?”

“Part of the reason is to save money, yes.”

Good for you, Arley. He must have thought the answer would make him seem like a poor provider, but he gave it anyway.

“What is your plan for childcare if Cressie’s mother leaves the community?” Kara asked.

“I haven’t had time to think about it.”

“Meaning you don’t know how you’d find someone to watch her while you’re on night shift?”

“Objection, Your Honor,” I said. “Counsel mischaracterizes the witness’s testimony.”

“Sustained.”

“Do you know of any overnight childcare centers in this community?” Kara asked.

“No,” Arley answered.

Kara waited, tempting him to fill the silence with an explanation. Arley kept his mouth shut.

“Further questions, counsel?” the judge asked.

Kara scrolled again. “Yes, Your Honor. Just briefly.”

“Please proceed,” the judge said.

“Mr. Tillis, did you pick Cressie up from Deb’s this morning as usual?” Kara asked.

“No. She slept at our—at my house. I wasn’t on shift last night.”

“Where is she now?”

“Your Honor,” I said, coming to my feet, “counsel is straying pretty far from the path. I object to the question.”

“Relevance, Ms. Dial?” the judge asked.

“The ability of Mr. Tillis to provide care for the child is at issue, Your Honor,” Kara answered.

“In view of the abrupt nature of this hearing, I’ll grant you some leeway,” the judge said. “Objection overruled. The witness will answer the question.”

“She’s staying with the mother of her playground friend,” Arley said.

“What is Cressie’s friend’s mother’s name?” Kara asked.

“Objection, your honor,” I said. “Totally irrelevant.”

“Overruled.”

“Please answer the question,” Kara said.

“Treena James,” Arley said.

“No further questions, Your Honor,” Kara said. She went to her chair.

“Redirect, Mr. Sabine?” the judge asked.

My turn to keep a poker face. “If I may have a minute, Your Honor?” I asked.

“Certainly.”

I scrolled my tablet as if I was checking my notes to see whether I had more questions for Arley, using the time to think. By pressing him to give the name of the babysitter, Kara blistered my case. A year or so earlier, I represented Treena James in her divorce. I remembered her as nice person with a kind face and Crossfit arms. She also happened to be a dispatcher at the police station, someone Arley would see often. The judge probably recalled Treena and her occupation.

The subtext of this morning’s case had been dutiful father versus runaway mother, and I felt this gave us an edge. Kara opened the possibility that Arley had done his own wandering. Our footing on the high moral ground had become slippery. None of this is supposed to matter in determining custody, but judges are human and undercurrents affect how they view evidence.
It couldn’t be helped. Every case has its weak points. You play to your strengths.

“Mr. Sabine?” the judge asked.

“No redirect, Your Honor,” I said.

“Mr. Tillis, you may leave the witness stand,” the judge said.

Arley returned to the chair beside me.

“You did great,” I told him.

He looked straight ahead. A muscle in his jaw twitched.

“We call Ms. Tillis to the stand, Your Honor,” I said. “I ask leave to question her as a hostile witness.”

“Objection, Your Honor,” Kara said. “No hostility has been exhibited.”

“Other than calling me a son of a bitch,” I said.

“Examine your witness in the usual manner, Mr. Sabine,” the judge told me. “If she proves recalcitrant, you may renew your motion. Objection sustained.”

Kara said something to Deb, probably telling her not to get in an argument with me. The judge’s ruling meant I had to ask questions in a way that let her explain herself, rather than putting words in her mouth and forcing her to admit or deny them as I could on cross examination. But if she turned uncooperative, the judge would let me tear into her.

While she took the stand, I told Arley, “If she says something out of line, let it go. No body language. I can put you back on the stand in rebuttal if she makes up some fairytale.”

“I understand.” He kept staring at the wall.

“Give me your phone.”

He handed it to me.

I showed Kara the photo of the trailer and the screenshot of the Facebook page.

“Your Honor,” Kara said, “I’m going to object to these items for lack of foundation.”

“Sustained,” the judge said.

“Your Honor,” I said, “my client didn’t take the photo, but he knows who did. We can have that person here within the hour if counsel wishes to maintain her objection. The other item is a Facebook screenshot that can be authenticated on the spot.”

“Your Honor, if I may have a moment to confer with my client?” Kara asked.

“Objection,” I said. “She’s taken the stand. She can’t compare notes with her attorney now.”

“You can’t have it both ways, Mr. Sabine,” the judge said.

“I withdraw the objection, Your Honor,” I said.

Deb and Kara put their heads together over Arley’s phone. Deb shrugged and Kara said, “We stipulate these items may be admitted without further foundation, Your Honor.”

I carried the phone to the judge and showed her the images.

“Offered as exhibits one and two, Your Honor,” I said.

“Admitted,” the judge said.

I turned on the video screen beside the empty jury box and sent the images to it. Enlarged to poster size, they looked more telling. Deb had to walk in front of them on her way back to the witness stand.

“I remind you that you are still under oath,” the judge told her.

“Is Ms. Tillis an appropriate way for me to address you?” I asked.

“For now,” Deb said.

She sounded a little testy, which was encouraging, but I had to be careful not to behave as though I was criticizing her for taking back her unmarried name. The change would become official when the judge signed the divorce order. Deb was probably counting the minutes until she wouldn’t be Ms. Tillis anymore.

“Ms. Tillis, do you know where this trailer is located right now?” I asked.

“Behind my apartment,” she said.

“Is it loaded?”

“Yes.”

“With what?”

“My things.”

“Whose pickup is it attached to?”

“Eddie’s.”

“Who is Eddie?”

“My partner.”

“Domestic partner?”

“Yes.”

“Let the record show that in identifying the trailer the witness was referring to exhibit one,” I said.

“So noted,” the judge said.

“As to exhibit two, Ms. Tillis,” I asked, “What did your sister mean by, ‘Bon voyage, sis. Tell us when you see a movie star?’”

“Ask her,” Deb said.

“Does it mean—”

“Objection, Your Honor,” Kara broke in. “Leading and calls for speculation. The document speaks for itself.”

“Counsel?” the judge asked me.

“I withdraw the question, Your Honor,” I said.

“Do you have other questions for this witness?” the judge asked.

“None, Your Honor.”

I sat, leaned close to Arley, and said, “We’re about done. Hang in there.”

He fixed his eyes on the screen. The air felt as if it floated with gunpowder. The glance I exchanged with Kara told me she agreed. The judge liked to recess for a few minutes between one side finishing and the other starting. A break now might spark a blowup.

“Your Honor,” Kara said, “If the Court will permit me to ask a few questions of my client while she’s on the stand, I think we can wrap this up.”

“Objections, Mr. Sabine?” the judge asked.

“None, Your Honor.”

“Very well. Counsel may proceed.”

“Ms. Tillis,” Kara asked, “do you agree with Mr. Tillis’ s statements that your daughter is a healthy, happy, child with no special needs?”

“Yes.”

“Do you agree with his statement that the two of you felt Cressie was better off staying at home than going to daycare?”

“Yes.”

“And that is why you worked days and he worked nights?”

“Yes.”

“What plan do you have to stay home with Cressie after the divorce?”

“Eddie and I can get by without me working ‘til she’s in school.”

“Living on your domestic partner’s salary?”

“He’ll earn a lot more in California. I can take classes online when Cressie naps.”

“When did you decide to move out of state?”

“Yesterday afternoon.”

“Why are you leaving today?”

“Eddie got a fantastic job offer, but he has to be there on Monday.”

“No more questions, Your Honor,” Kara said.

“Cross, Mr. Sabine?” the judge asked.

“None, Your Honor,” I said.

“Does either counsel have other witnesses or evidence?”

“I ask the Court to take under consideration that the parties stipulated they would give notice before taking the child out of the state,” I said.

“Where is this stipulation?” the judge asked.

“In their agreement,” I said.

“Their unsigned agreement,” Kara said.

“Is than an objection?” the judge asked.

“It is, Your Honor,” Kara said. “An unsigned agreement is immaterial.”

“The Court will review the provisions,” the judge said. “Bearing in mind that the agreement was arrived at as a result of court-ordered mediation, though not executed by both parties. Objection overruled. Anything else, counsel?”

“Nothing more, Your Honor,” I said.

“No, Your Honor,” Kara said.

“Counsel will waive closing argument?” the judge asked.

“Waived, Your Honor,” Kara and I each said.

“Very well,” the judge said. “Counsel are commended for the efficient and skillful manner in which this matter has been presented. The Court will recess for twenty minutes, at which time orders shall be entered.”

After the judge left, Arley asked, “What was that about the agreement?”

“Lawyer talk,” I said.

“How did we do?”

“Hard to say.”

“Okay if I go over to the station?” he asked. “I want to check with the sergeant about day shift. In case it goes our way.”

“Sure. Let Deb leave first. Be back ahead of time.”

Deb strode out of the courtroom, looking ready to rip something apart. Arley went across the street to the police department. I didn’t believe we’d done well enough to win. Hoping that thinking on my feet might bring some new angle to mind, I wandered the corridors. It would have to be monumental, a big twist. Nothing popped forth. This was probably just as well. I’d been indulging my Clarence Darrow fantasy. Best to let it go. Other times I’d tossed in a final question based on a flash of inspiration. Too often, the answers left me wishing a trapdoor would open under my feet. I found Kara looking out a window and sipping from a water bottle.

“Another fun day in the law,” I said.

“Sounds like the kid’s going to be all right either way,” she said.

“How old are yours now, Kara?”

“Perry’s eight and Robin’s five.”

“Great ages.”

“As long as we can keep up with them. Is your boy out of high school, Dan?”

“Graduated last spring. He’s taking a gap year, hitchhiking through the Andes. His mother’s pretty freaked about it.”

“And you, dad?”

“Aaron can handle himself, but I’ll be glad when he’s ensconced in a dorm.”

We watched the wind chase snowflakes down the street.

“There should be a fairer way,” Kara said.

“The system’s hard to bend.”

“I mean, life should be more fair.”

We were all in our seats five minutes before the judge came back. Deb had a puffy face, but she’d regained control of herself. Arley’s jaw worked.

“Matters like this one weigh heavily on the Court,” the judge started. “The law requires that the welfare of the child be given paramount importance. This case is unusual in that the parties had nothing critical to say about the parenting skills of the other. Ms. Tillis, do I correctly understand that you intend to move to California and to focus on your parenting if granted custody?”

“Yes, Your Honor,” Deb said.

“And Mr. Tillis, do I correctly understand that your intent is to remain in this community, which will doubtless require you to arrange care for the child if you are granted custody?”

“Yes, Your Honor.”

“Counsel, anything else?”

Kara and I both answered no.

The judge continued, “The merit of the mother’s position is that she will be able to provide at-home care. The merit of the father’s position is that the child will stay in her current dwelling and in the community she has always known. The Court is required to evaluate the alternatives in light of the best interests of the child. Therefore, the Court, having fully considered the evidence and records herein, finds that both parents are fit for custody of the minor child of the marriage. The Court further finds that the best interests of the child are served by providing the stability that comes with remaining in the home. Custody is granted to the father, subject to reconsideration at such time as a change of circumstances warrants.”

Deb let out a gasp, started to stand, looked around wildly as if help might come from places unseen, and collapsed over the table, her head buried in her folded arms. Her sobbing filled the courtroom. I avoided looking at Arley, not wanting us to seem like men gloating over a woman’s grief.

The judge kept talking. “Child support to be determined by the state protective services administration. Counsel shall submit visitation plans within thirty days. Property is divided in accordance with the prior agreement of the parties. Petitioner is restored to her previous name. The divorce is granted. Mr. Sabine, you will draw the order. Court is adjourned.”

She left the courtroom, followed by the clerk.

Arley’s jaw stopped twitching.

“Let’s take the back way,” I said to him.

He followed me past the judge’s chambers, down a stairwell, and out a side door. Windborne snow swept over us. Arley pumped my hand.

“Mr. Sabine, I didn’t think you could do it,” he blurted. “I mean….”

“Congratulations, Arley,” I said. “Check with me next week. We’ll need to talk about the visitation plan.”

“Sure thing, Mr. Sabine. Thanks.”

He walked away with his shoulders hunched against the storm. Halfway across the courthouse square he started talking on his phone. I watched until he drove off in his pickup, to be sure he avoided a run-in with Deb. When I went back upstairs for my parka, she and Kara were gone. The courtroom lights were off. The tall windows spread a pale winter sheen on the empty chairs. Abe Lincoln hung in the shadows. His eternal patience failed to keep me from feeling ragged. These cases take a toll. There’s never enough wisdom to go around.

This one may have come down to the judge figuring custody would be brought up again, as Cressie got older and Deb built a stable life in California. Since Cressie was domiciled here, any change would have to be approved by this court. One of my law professors said no judge likes to be told that some other judge somewhere else can judge better than they can. Whether I guessed right didn’t matter. From my client’s perspective, I’d done a decent morning’s work. That’s the only scale a lawyer can use to weigh outcomes. Trying to look higher drives you crazy.