Fighting the Long Defeat

In this chapter I offer a litany of my failed attempts to rectify the error-ridden Order of November 2006 as well as other mishaps and injustices that continued to sow seeds for my hunger strike.

9. Fighting the Long Defeat
David Weiss, December 14, 2010 (The fast is over! Watch for post #11 to explain why.)

This isn’t a complete chronology of the past fours years of struggle. It’s more a brief collage of dashed hopes, bitter disappointments, further injustices, and nearly comic tragedies that have peppered the years from November 2006 to May 2010.

In thinking about these years and my unremitting grief I am reminded of Tracy Kidder’s moving portrait of Paul Farmer’s work to relieve suffering and promote health in Haiti (Mountains Beyond Mountains: The Quest of Dr. Paul Farmer, a Man Who Would Cure the World). Kidder recounts Farmer’s own description of his work as “fighting the long defeat.” Farmer’s point is that, in full recognition of the systemic forces that will almost surely render his efforts for the people of Haiti futile in the long run, he chooses, nonetheless, to “make common cause with the loser.”

For these past four years, as I watched the family court system shred my hopes and dreams I have been reduced to this: the pledge to myself that I would always be willing to lose one more time rather than give up altogether. That is a thin thread of hope on which to hang a father’s love. But is has proven strong enough.

Injustice … Chiseled in Stone: Motion to Reconsider – Denied

I would call them errors, had they been admitted. But when “defended,” albeit with specious claims, by someone with virtually unchecked power, errors become injustices. And these were as good as chiseled in stone.

My attorney-mentor was as aghast as I was by the judge’s carelessness. She worked pro bono to file a Motion to Reconsider, seeking to have the laundry list of errors corrected. The guardian ad litem (GAL) had an opportunity to weigh in on the motion. He was particularly well-positioned to do so: he didn’t make any of these errors in his proposal (he had at least paid attention to the school calendars and had done his summer placement math correctly). Plus, I had sent him a letter just days after the Order arrived pointing the errors out to him, and reminding him that he hadn’t made these mistakes himself. Despite his legal obligation to be a “zealous advocate” for my daughter, he chose to express no opinion about the merits of my motion. Justice for my daughter was no longer a convenient priority for him (if it ever had been).

The judge dismissed the motion outright, claiming that I had “misread the decision.” She was so quick to dismiss my motion that her own dismissal contained not less than six more errors or misreadings itself! The attitude she showed in the courtroom, suggesting she couldn’t imagine a lay person daring to press a case in front of her, spilled over into condescending language and a repeat of the same sloppiness that marked the original Order. Every error I identified was an error—every single one. But because we were on opposite sides of the bench—and she was on the side where power rested—my best reason was impotent to challenge her worst arrogance. The Order held.

Court of Appeals – Denied

My attorney-mentor, the only person I encountered in my saga who has actually cared about this travesty of justice, worked pro bono again to file an appeal with the Wisconsin Court of Appeals. She commented at one point that she now understood my earlier reference to feeling like the character in Franz Kafka’s The Trial, where a man is arrested and tried for crimes never revealed to him. It is a maddening account of power that is accountable to no one. Seven months later my appeal was denied. The basic decision affirmed the wide (some would say the maddening and unaccountable) discretion that judges have in deciding what it means to apportion placement time according to a child’s best interests. And the decision chose to not even respond to the assertion that she made outright errors in calculating and mapping out the placement time. With a daughter’s time with her father resting on the scales, the Court of Appeals decided through its silence that the judge had the power to make the ruling she made—whether or not it contained errors.

First Orchestra Concert – Denied

In May 2007 my daughter, now 11 and a fifth grader just starting to learn violin, played in her first middle-school orchestra concert. Margaret and I made plans to go. Indeed, because she had selected violin to play largely because her brother had played violin in middle-school himself years earlier, we drove from Minnesota to Wisconsin by way of Iowa to pick up my son so that he could join us for the concert. We drove six hours to get there.

I alerted my ex four weeks in advance of our plans and asked to take our daughter out afterwards for an ice cream cone. I was told they already had plans afterwards. We arranged our drive to arrive early enough to take her out for supper before the concert, and I inquired about that. I was told, No, there would be no time to see her at all. I asked the GAL to intervene of my daughter’s behalf, but he again decided it was not his place to be her advocate.

As it turned out we managed about a 2-minute hello on the sidewalk outside the school and a 2-minute farewell in the crowded gymnasium after the concert. The moment she had finished playing the first person she sought out in the seats was my son. I think it was the first time in his life he fully realized how much she adored him. We drove back to Minnesota that night, glad we had made the ten-hour trek, but stung that for our efforts we had been granted the sum total of 5 minutes of time with my daughter. This poem (an acrostic: it spells out “Orchestra Concert” down the left margin) remembers that day:

May 17

Outside we waited anxiously,
ready to greet you,
calling your name and then
hugging you so tightly
excited to be here but having
so little time for hello after
traveling so far and you were
rushed inside to get ready
and we could only watch you go.

Craning to catch your eye afterwards
over the swarming crowds; I was
nearly bursting with pride and you
climbed into my waiting arms
even as I knew you would be
rushed away again despite our having
traveled so far … only to watch you go.

Summer Terrors … and Therapy Denied

Over the summer of 2007, as though her “victory” was insufficient, my ex decided to read the new Order as providing me a 3 p.m. pick-up at the start of each summer placement but providing her a 2 p.m. pick-up at the conclusion of each placement. Not content to know that her silent complicity with the Order’s error was helping to “steal” 3-4 days of placement time each summer, she hoped to trim another hour off of each placement. She showed up outside our home an hour early four consecutive times that summer. I tried to persuade her otherwise, but she wouldn’t listen. I contacted my ex’s attorney, but she wouldn’t do anything. I tried to get the GAL involved, but he wasn’t interested. Twice my daughter spent the last hour of her time with me curled in a fetal position scared that her mom would be angry at her for not coming outside at 2 p.m. (Eventually we just found places to be away from the house until 3 p.m., but even those outings were marred by the anxiety of the car that would be waiting for us when we returned home.)

I asked my daughter if she wanted to speak with a counselor about the fear and anxiety she was experiencing. She said yes. I contacted two different family therapists in Minnesota. Both would have been willing to meet with her—but neither would even schedule an appointment without both parents’ consent. I informed my ex of my desire to seek counseling for my daughter. She responded not with concern for our daughter’s wellbeing but by filing an Ex Parte Motion preventing me from seeking counseling without her express consent.

As the summer was drawing to close I finally persuaded the GAL to meet with my daughter to assess the sincerity of her desire to meet with a counselor. He agreed it would be wise, and then spent over a month trying to negotiate the terms of this with my ex and her attorney. I finally received clearance to make an appointment with a family therapist in Wisconsin (her turf again) in late November 2007.

On a Sunday afternoon, three days before the appointment my ex cornered my daughter at home and grilled her about what she had told the GAL and why she wanted to talk to a therapist. She told my daughter in no uncertain terms, “You don’t need to talk to a counselor! If you need to talk to anyone, you can talk to me!” The interrogation continued until my daughter wilted and parroted back, “Okay, Mom, you’re right. I don’t need a counselor. If I ever want to talk to anyone I can talk to you.” To which her mom said, “That’s better.” And on Monday she called her attorney, said that her daughter had changed her mind about wanting counseling and that she was withdrawing her consent. The appointment was cancelled.

I learned all this from my daughter when I picked her up that Wednesday for Thanksgiving break. On Monday I called the GAL livid. I reported everything to him. This was his response: he called my daughter’s school counselor and asked if she seemed to be doing okay in school. Reassured that her home life wasn’t leaking into her school life, he never investigated this any further. I do not know if he was truly so reluctant to get involved, if he was so intimidated by my ex’s attorney, or if this appointment was so much more work than either bargained. But for four years he neglected to do anything that looked even remotely like zealous advocacy for the interests of a child he was entrusted to represent.

The counseling never took place. Eventually I filed a formal complaint against the GAL for failing to do his job. I was told by the Office of Lawyer Regulation that because the substance of my complaint wasn’t about “ethics” per se but about his “statutory obligations” as a GAL under the law, that I needed to file my complaint with the judge who appointed him. The judge who already had me at the top of her shit list. I never saw the point in that.

Motion to Correct – Denied

In March 2008, after trying repeatedly (but without success) to get the GAL to address the errors in the Order, I filed my own motion. I provided painstaking detail both to substantiate my claims and to rebut the judge’s earlier rejection of them (in my Motion to Reconsider in December 2006). She again denied my motion. Part of her argument this time was that “the specific governs the general.” Applied to the Order it meant this: since the days circled (without text or explanation) on the calendars appended to the Order didn’t match the clear reasoning provided in the words of the Order itself, the specific circles governed the general words. In other words, it was impossible that she circled the wrong days. How dare anyone question that they failed to carry out the meaning of the words. And if they did, then she must have meant to override the words by her circles. This was injustice … chiseled in stone.

Lawyer – Disappeared; Second Motion to Correct – Denied

After the Appeal was denied, my attorney-mentor said she’d done all she could for me and that I really needed an attorney right there in the county where the case was to pursue matter any further. She gave me the names of several family law attorneys and I called one and made an appointment (sometime in the summer of 2008). When I arrived I found myself meeting not with the recommended attorney but with her junior partner. She reassured me that she met regularly with the senior partner and that I would get the best of both of them. For six months this junior partner worked to prepare for my next attempt to address the Order’s errors. But she was increasingly unresponsive to my phone calls and evasive about my questions. Then one day the senior partner told me that her junior partner was no longer with her—and that she herself was too swamped to take over my case. She refunded my entire retainer and apologetically passed me on to a colleague of hers in a different office. (I learned later that the junior partner had suffered a nervous breakdown, literally disappeared, and had left a couple dozen clients like myself unrepresented and unprepared.)

So in February 2009 I met with a new attorney. He assured me he would get me a fair hearing with this judge; he claimed to recognize the errors and thought they should be relatively easy to get straightened out. When I told him about my poor track record with the judge he told me not to worry, that he served as one of her court commissioners and was on very good terms with her. Then he asked me if my ex was “independently wealthy.” I said, “No, why?” He replied, because her attorney’s reputation has been built by representing the likes of neurosurgeons in very high-priced divorce-custody battles. She’s known as one of the area’s most aggressive and highest priced attorneys!”

He represented me without any success in several minor court dealings from February 2009 until summer 2010. He never got me the justice he promised. Several times he gave me advice that backfired. The motion he filed to correct the Order was dismissed just as quickly as my own had been; in fact, I lost two more days of placement time on his watch. His efforts to get the GAL to do his job met with no more success—though perhaps they did play a role in getting the GAL to resign his post in March 2010.

Finally A Breath of Fresh Air

For whatever reasons the GAL who all along had wanted to do as little as possible on behalf of my daughter finally asked the court to do nothing at all. In March 2010 he asked to be released from his appointment and it was granted. A new attorney was assigned to be my daughter’s voice. His first task was to mediate conflict over my (now 14 year-old) daughter’s desire to successfully navigate a tricky couple of weeks in late May and early June.

My daughter was hoping on weekend number one to join Margaret and me in traveling to Iowa to meet her grandparents and my son’s other parents (his mother and step-dad) and see him graduate from college. On the second weekend she wanted to bring a friend from Wisconsin with her to participate in the Yong Authors Conference. And on the third weekend she was hoping to attend her eighth grade dance in Wisconsin then make it to Minnesota the next day in time to be a bridesmaid in her step-sister’s wedding. It was less than ideal that these events fell on three consecutive weekends. But the depth of her desire to be present for all three indicated the extent to which her connections to Minnesota remained strong despite all the forces conspiring to weaken them.

Although I had proposed trading away my April placement time to secure the additional placement weekend needed to make the three-in-a-row possible (I knew there was no way I would just get extra days for free) her mother was adamant that our daughter needed to choose which of the three Minnesota events mattered the least and skip that one. When it became apparent that her new GAL was going to support my daughter’s desire to be part of all three events her mother went to Plan B. She asked to either drive my daughter three hours to Iowa to arrive just in time for her brother’s graduation ceremony and then to whisk her away back to Wisconsin immediately afterwards—or to do the same thing two weeks later on the day of the wedding. She would facilitate my daughter’s presence in the most minimal way, making sure she knew how marginal she was to this Minnesota family by forcing her to the edge of one event or the other.

Thankfully, the new GAL ruled in my daughter’s favor, allowing her to participate fully in all three weekends. (This had been my position as well, but his decision was clearly to support my daughter’s desires as valid and reasonable.) No matter, it was a victory I never expected. It had been years since anything at all had gone in my favor. Each weekend went wonderfully, providing its own set of special memories. But the breath of fresh air brought in by a new GAL would turn foul within a month …

The Other Ex Factor

I should say something about the “other ex” in my life. My first wife and I divorced in 1987 after being married less than a year. It was not an easy divorce for either of us. Our son was two months when we separated. We had our share of hurt feelings and bitterness for the first year or two, though we never let those things impede our care for our son. More importantly, before long we became strong co-parents, both of us active in our son’s life—and both of us fully supportive of the other’s role in our son’s life. We have each moved, remarried, and became parents to other children over the years. We have negotiated a lot of change, and we have managed to do so while honoring our son’s place in each of our lives.

When he was in high school his mother came to visit several times, staying in our home on at least one occasion and in a nearby motel on the others. She and Margaret enjoy spending time together, each of them appreciative of their respective places in my son’s life. When he graduated from high school she co-hosted with us the open house to celebrate his day. She and my mother (both my parents, really) remain very close; in fact, her present husband considers my parents in-laws as well.

When our son graduated from college last spring, his mother and step-dad drove up from Oklahoma. My parents drove out from Indiana. Margaret and I drove down from Minnesota, going by way of Wisconsin to pick-up my daughter along the way. And the seven of us took over a bed and breakfast for the long weekend. We spent our days sight-seeing together. We spent our evenings playing games and sharing stories. And our son knew the joy of seeing all four of his parents side-by-side, proud of him and happy to share his day. And my daughter must have watched it all with a deep envy, knowing that her parents would likely never be smiling in such close proximity.

I share the anecdote only to make this point. Animosity does not need to rule the roost after a divorce. The other ex in my life “proves” that I am more than capable of co-parenting, more than willing to work at the communication—and build the trust—necessary to jointly raise a child. Indeed, far from “managing to make it work,” we have fashioned a post-divorce partnership as parents (and step-parents) in which our son has only ever been “in the middle” of shared support, never of entrenched conflict. I would have wished for the same for my daughter had her mother been willing to imagine it possible.

Reflections …

This section of my struggle has been abbreviated for both our sakes. The litany of conflicts, both petty and profound, could have been significantly expanded . But it is too exhausting and deflating to itemize in its entirety. By now the theme is clear: like most every institution, family court is more concerned to preserve the court than the family. Errors, oversights, even bias and arrogance receive almost complete protection once they occur. Obviously, appeals occasionally succeed, and the worst offenders are occasionally held to account. But only enough to perpetuate the myth of the system working. In my case, it has failed repeatedly.

In truth the family court system is badly broken and while one parent might benefit in the short run, the other parent and the child (often unknowingly) are served little or no justice at all. And in the long run everyone stands to lose in a system that insists on creating winners and losers rather than thinking outside the box to create post-divorce families. With my “other ex” I am living proof that this is both possible and preferable.

Granted, we managed that outside the system. We mediated our initial decree with a professional mediator; we mediated our revised stipulation with a pastor; and we never hired attorneys. But the system could recognize the benefits of reducing adversarial encounters; it could support the parent who is open to mediation rather than privilege the one with money to burn on a high-priced attorney; it could affirm either parent’s desire to strengthen the child-parent relationship in ways that don’t disadvantage the other parent. But at present it remains wed to the notion that attorney-gladiators are the best stewards of our children’s best interests. And, sadly, I am equally living proof that this is both preposterous and impossible.

* * *

This entry is now the ninth written during my 21-day fast for justice in family court. In the next one I explain the truly good news that prompted me to end the fast early. You can learn more about the fast, including ways to support me, at

2 thoughts on “Fighting the Long Defeat

  1. I am blessed to remain a member of the Weiss family, and honored that my family are welcomed members of the Weiss family as well.

    Thank you for sharing your journey…for allowing us to walk beside you from miles away.

    The Other Ex 🙂

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