In this chapter I recount the disastrous day in Court in October 2006 and the subsequent Order that first sowed the seeds of my hunger strike four years ago.

8. An Un-Hallowed Eve
David Weiss, December 13, 2010 (Day 15 of the fast)

My daughter was with me the weekend immediately before the hearing. It was a beautiful Sunday afternoon and we carved pumpkins amid the fallen leaves on the grass alongside our home before she was picked up.

Two days later Margaret and I followed her to Wisconsin for our day in court. I was as well-prepared as I could be, but I was apprehensive nonetheless. I had continued to meet occasionally with my attorney-mentor, and under ideal conditions I might’ve done a respectable job as a daughter’s hero. But I faced conditions far from ideal, and had my daughter been a fly on the wall, she would’ve wept with grief at what she saw.

I had arranged six weeks earlier—with the judge’s approval and the consent of both my ex’s attorney and the guardian ad litem (GAL)—to call several witnesses by phone in order to attest to the richness of the family life my daughter enjoyed in Minnesota. I had a family member, two church friends, a next-door neighbor, the father of a playmate, and the pastor of our church, all waiting by their phone for a call from court.

When I asked to call my first witness the judge suddenly decided she wasn’t interested in making phone calls that day. In a humiliating and disorienting series of exchanges between the judge and my ex’s attorney, I was asked what each person was “supposedly” going to say. Each bit of authentic testimony to our family’s goodness was reduced to a second-hand sound byte and accepted into the record without objection since it had now been trivialized as mere “opinion and hyperbole.” Not fifteen minutes into the hearing I found myself being toyed with by these “professionals” as if to remind me I was thoroughly out of my league and I had no business hawking my wares—loving my daughter—on their turf. I managed only to get permission for Margaret to be excused from the courtroom long enough to call all of the waiting witnesses to tell them that their testimony would not be sought.

From there on I was rattled in everything I attempted. I felt like a ball in a pinball machine knocked from one bumper to the next.

The only “expert witness” was the therapist. She framed the issue as a need to reduce the stress that the transitions back and forth put on my daughter. This wasn’t the issue; the issue was my daughter’s desire to have more time with me. That was my motion. But my ex’s attorney managed to entirely shift the frame to take full advantage of testimony that was neither honest nor fair to either me or my daughter. Any stress caused by the transitions was largely the product of an ex-spouse who had wished me dead years ago and who remained unhappy that I was still not only part of our daughter’s life but held an honored place in her heart. But that testimony never came out because all the “therapy” had been carefully shielded from me. I pressed her on points as best I could, but I sensed that my ex’s attorney was going to have a field day. And she did.

The GAL was little help. He presented his proposal, which was far less destructive than my ex’s, but he didn’t present it very zealously. He made no argument against the dire cuts in time proposed by my ex. But then, how could he? He hadn’t spoken to my daughter in five months and he’d never spoken at all to any of the references I’d given him six months earlier. He had a proposal to present but nothing more.

I stammered my way through the hearing, but with the stakes so high—I knew four years of placement time was hanging on every word I spoke, or misspoke, every argument I made or failed to make—I was a nervous wreck. I tried yet again to say that all this history of conflict over placement had roots in a history of violence, but the judge said that was irrelevant. Too long ago. Not worth hearing about. Instead, she pegged me as a father trying to insert myself unwanted into a child’s life more to be a nuisance to the mom than because I wanted to love the child. She had refused to let any of my witnesses speak, yet she decided she knew exactly what type of dad I was: an unneeded one.

The judge was worse than dispassionate; she was openly impatient. She seemed overtly peeved that someone would dare to try and represent himself in her courtroom, and she let me know it. By the end I was emotionally overwrought. I had tried to be my daughter’s champion, and I had utterly failed. The judge said she would issue her Decision and Order in a few days, but I knew I had lost. All that remained to be seen was how much I had lost. Margaret and I drove home in near silence. We got back late at night. I wrote this poem the next morning, wet with sorrow like dew reluctant to let the new day begin:

The Year the Jack-o-Lantern was left unlit

Sunday in the sun,
amid the crinkling leaves on the lawn,
we carved star after star after star
on the pumpkin
you had proudly picked out
weeks before at the apple orchard.
Finished and perched
on our front steps
our Jack was an echo
of heavenly lights
just waiting to be lit.
But coming home late on
All Hallow’s Eve,
our street dark,
trick-or-treaters long since gone,
and sadness in my soul beyond measure,
it seemed only right
that this would be
the year the Jack-o-Lantern
was left unlit.

I moved through the week listless, waiting for the Order to come. I was not a moment without anxiety, like a low-level panic attack that stretched over a week. The next Sunday in church, at the point in the prayers where the people are invited to offer their own petitions I prayed. I was sitting by myself because Margaret was singing in choir. I remember my first words were something like, “God of justice—.” Every word after that was uttered between sobs. Never one to wear my emotions on my sleeves, this morning they ran down my cheeks and splashed onto the church pew, they broke in my voice, they shook in my shoulders. My grief was more public than I ever meant for it to be. But when we passed the Peace that day, I received more Peace than ever before. My need was so obvious and people were generous with hugs that held me long and hard.

On November 10, 2006, I received the judge’s Order the way you receive a hard kick to gut. It knocked the air out of me, left me doubled over, and once I caught my breath, I sobbed long into the night.

This is what I read. For starters, my school year placements were to be reduced from 15 placements averaging 42 days per school (from 2003-2005) to 12 placements averaging 36 days per school year (from 2006-2009). The Order gave written assurance that, while fewer trips were necessary for my daughter’s “well-being,” each of these fewer trips would make full use of adjacent days off from school to insure longer trips whenever possible. Still, my daughter and I would lose on average six days per school year, more than erasing the four extra days we had just gotten during the summer. Eight months earlier I had gone to court to honor my daughter’s tearful pleas for more time with me and after everything we would actually lose time together.

Then as I read the Order in all its detail things got even worse. Despite its explicit assurance to lengthen weekends by joining them to days off from school whenever possible, the judge’s calendar did not do this. Four times over four years she simply failed to notice days off from school adjacent to weekends assigned to me. Three more times, also in contradiction to the words in the Order itself, she placed my daughter with my ex for more than half of her Christmas or spring break. She was with me less than 13% of her school year; you might think that over her two longer breaks I would at least get the benefit of the odd extra day whenever these breaks couldn’t be divided evenly. But the judge hadn’t even applied her pledge to do so consistently on the list of dates provided. Over four years I would lose on average 2 days each year simply due to judicial carelessness regarding the school calendar.

Summer was a cataclysm all its own. The Order affirmed that I would still have my daughter for “50%-plus-four-days” of her summer vacation. Perhaps understandably, given the conflict between us, the judge did not want my ex and I having to tally up and then divide each year’s summer vacation. She chose instead to declare a “typical summer” as 76 days, divide that by two (38), add four (42), and schedule my daughter for four summers of 42 days each with me. BUT—!

But over the preceding five years a typical summer wasn’t 76 days long. In fact, my daughter’s previous five summer vacations (all data easily available to the judge) had been 87, 80, 82, 82, and 88 days long. 76 was NOT a typical summer vacation. Had the judge averaged the five available years, she would have found that a typical summer actually had 84 days. By that objective measure—and then dividing 84 by two (42) and adding for (46)—her decision to award me 42 days of summer placement each year in truth entirely erased the “plus four” that the Order promised. Call it calendar-incompetence or arithmetic-error or judicial-injustice, by whatever name, the judge managed to preserve “50%-plus-four-days” as an idea in the order while simultaneously emptying it of any content each and every summer.

There were a handful of other “minor” errors in the Order, but that covers the main ones. I could not believe my eyes. I could not wrap my mind around the magnitude of the mess. I would contact my attorney-mentor in the morning to begin the process of correcting the errors. But that first night I simply allowed myself to weep. I didn’t even the energy left for rage.

Reflections …

Given the courtroom I experienced that October day I had no business being in there without a lawyer at my side. But I still balk at that. Everything that happened in the room that day was a game of chess played by two attorneys, one judge, and one dad. My ex never spoke except while on the stand. It was a game played by professional game-players in which time with my daughter was reduced to an abstract idea: the prize. If this is really “family court,” why is it that every family member is expected to be a spectator while their respective “hired guns” go at each other? Does anyone really think that’s the best way we can assure some semblance of justice for families?!

To be sure, the words “best interests” were used again and again in the courtroom. But to any parent they were a mocking jest. In the entire seven years since the divorce in 1999 (and despite my persistent pleas), not a single person with training in family therapy, family systems, child psychology, marriage dynamics, or domestic violence had been consulted about how to help this family function on the far side of divorce after a violent marriage. Not one. (Except, of course, the therapist who had betrayed both father and daughter to the whim of an insecure and manipulative mother. And the FCCS director, who despite her mandate, couldn’t find the time to even speak directly about these things with me or my daughter.)

So “best interests” was a pretty empty rhetorical phrase for me by then. The people in the room that day did not care about the best interests of any real person. The were playing a game, jockeying for position, competing for a prize, or (in the GAL’s case) just logging their time, and it was my daughter’s life that was left bruised, banged, and perhaps irreparably torn in the process.

It would be possible to build a system within family court that at least tried to respect the best interests of the child. But it would need to be a system that took those best interests out of an adversarial context where “winning the case” is the only goal, where legal rules are employed to gain leverage not to pursue justice, and where the testimony of “experts” is just a fancy way of naming mercenaries called on to twist the truth one direction or another. The system we have now is abusive to both parents and children. And, in my experience, it is more than content to remain so.

* * *

This entry is now the eighth written during my 21-day fast for justice in family court. Next I offer a litany of my failed attempts to rectify the error-ridden Order. You can learn more about the fast, including ways to support me, at http://davidrweiss.com/hungry.