The Honorable Joan E. Young
Circuit Judge
Sixth Judicial Circuit Court - Family Division

Sermon:
August 11, 1999
Midweek Worship Service

Scripture:
I Kings 3:9

On January 1, 1998, the legislation creating a Family Court in Michigan went into effect. Since the inception of the Family Court, a year and a half ago, I have dissolved 1,200 marriages. There were minor children in over one-half of those marriages. These children remain wards of the court until they are 18 years of age.

The scripture reading I selected for the evening allows me to discuss two issues: the job of judging, and the subject matter of my decisions ... the children.

First, let me give you a little background on the Family Court in Michigan and why it exists.

Michigan has three trial courts: district court, probate court and circuit court. Each has jurisdiction over different types of cases. Before the creation of Family Court, a family could be involved in all three courts for different aspects of the family's problems.

For example, let's imagine a husband and wife and three children. The couple is not getting along and decide to separate. The wife files for divorce in the circuit court. The case is assigned to Judge No. 1. When served with the papers, the husband loses it and assaults the wife. He is charged with domestic assault in the district court before Judge No. 2. In the meantime, the wife gets a personal protection order against the husband from Judge No. 3. The oldest child was born before the marriage so the wife filed a paternity action to establish support before Judge No. 4. The second child has been acting out since the separation, and has now been charged with stealing a bike in the juvenile court before Judge No. 5. The youngest child has been staying with the maternal grandparents who have filed for guardianship in the probate court before Judge No. 6. It's possible for each of the six judges to issue contradictory orders.

The purpose of Family Court is to assign one judge to one family so that someone familiar with the whole picture can resolve all family issues. The jurisdiction of our Family Court involves divorce and legal separation, determination of paternity, custody, support, abuse and neglect of children, delinquency of minors, adoption, guardianship of minors, and mental health commitments. Although I could spend hours talking about any one of these areas of concern, I want to focus primarily on cases involving divorce and custody of children.

As you may have guessed from the case entitlement, Mary Smith v John Smith, or, perhaps you know from your own experience, children are not parties to their parents' divorce. They are unrepresented interested persons. Little persons, at that. Generally, they have little comprehension of the circumstances surrounding their parents' divorce or the law governing family matters. The information or explanation provided by parents is slanted and incomplete. Perhaps for good reason. Children's wishes often go unheard and unconsidered. Parents often interpret their children's well being in terms of their own needs. Parents may use the children as a weapon to get back at the "offending" spouse. Children find themselves in between. In between two parents whom they love, in between two parents whose love and guidance they need to grow to healthy adulthood, in between two parents they do not want to lose or betray. One young man was asked how he felt about his parents' divorce. "I feel like the victim of a drive-by shooting," he said. "One minute everything was fine, and the next my whole family life was blown to bits!"

To illustrate this point further, I once heard of a little girl whose parents were engaged in a bitter divorce. Each parent professed love for the little girl, and she was deeply attached to both. Both parents attended the child's dance recital, but sat on opposite sides of the audience because they couldn't stand to be in each other's presence. The performance went off without a hitch; the little girl proudly bragged to her friends that both mommy and daddy came to see her dance. At the end, all the children took the stage for a final curtain call. The parental applause was enthusiastic, and the young dancers took their bows and ran from the stage to their adoring parents. All except one, that is. Our little girl stood in the middle of the stage and began to cry. Which way should she go? Should she run to her mother whose proud tears were streaming down her face? Or, should she go to her adoring father so he could sweep her up in his loving arms? Both parents look longingly for her to approach. No matter which way she goes, she feels she will betray the other parent, one of two people she loves most. How can she pick between them? Her stomach is tied in a knot. She can't speak. Best then to stand still, keep her eyes closed, and hope for someone else to make the decision. In divorce cases, that someone else is the judge.

The children of divorcing parents are not the first children in between, not the first children whose fate must be decided by a judge. Our scripture reading tonight recounts the familiar story of two women appearing before King Solomon, each claiming to be the mother of the "living" baby. God gave him the wisdom to propose a radical solution to the dispute. The response of each woman disclosed the truth to him.

Dividing up property is fairly easy; dividing up children is not. It is perhaps the reason why many judges and lawyers do not like handling family cases. In a personal injury case, for example, we generally allow a jury to decide whether the Plaintiff was injured as a result of the Defendant's negligence, and how much should be awarded in damages. Judges decide the questions of the law: has the claim been properly presented, is the evidence admissible. The judge provides the jury with the instructions they must follow in reaching their verdict. The judge in such instances is like a manager. The parties in such cases are usually unrelated and will have no ongoing relationship after the case is decided. Not so in family cases. The disputed issues are all heard and decided by the judge. Although occasionally complex, dividing property is generally a question of how much to give each party in accordance with their needs, their relative contribution, and their fault in the breakdown of the marriage. The children, however, present more difficult and heart wrenching concerns.

Who shall be the primary custodian? Can these parents share the decision-making responsibilities for their children, or do they argue and fight over the smallest issue? Or worse, do they refuse to communicate at all? How much parenting time should each parent have? Where and under what circumstances should children visit with the non-custodial parent? Are any special protections required to safeguard the child's well being? How should a child be supported? How much should each parent pay?

As they jockey for advantage in this emotional litigation, some parents disclose intimate secrets about one another, exaggerate the faults or limitations of the other parent, and even refuse to pay support for the children. They may disparage each other to the children, and fight openly in the children's presence. Some may even attempt to limit or prevent contact between the children and the other parent.

One teenage boy came to see me and said, "Can't you do anything about my parents? They fight constantly, and make a big deal out of everything. They're always coming to court. I hate them both!"

Someone quite observant said that in criminal cases, the judge sees the worst of society at their best. But in divorce cases, the judge sees the best of society at their worst.

King Solomon had an interesting and effective approach to the dilemma I face almost on a daily basis. However, I doubt that I can get away with his technique. In fact, I could probably end up explaining myself to the press, the public, and the judicial tenure commission all the way to Lansing. King Solomon knew what solution to propose. But, can you always assume that a mother, or father, will have appropriate concern for his or her child? I wonder what would have happened if both mothers before King Solomon had said, "Hey, good idea. Divide the child." Would he have proceeded to cut the child in half? What if the real mother was silent, simply too frightened or respectful to challenge the decision of her king? Would he have had a back up approach? Maybe he would have given the child to someone else. I marvel at the simple wisdom of his method.

Let me take just a moment to talk about judges. Judges are just people. We are made up of our education, our experiences, our values, our common sense, our beliefs and abilities. Unlike other professional jobs, there is no training program for judges until after you become one. The only requirements are that you must have five years experience as a lawyer, and be under 70 years of age. However, I don't think any kind of training could give us enough wisdom to solve all the problems with which we are presented.

A good friend of mine, now with God, may his soul rest in peace, told me many times that some judges don't want to judge, they just want to be judges. Judges are not selected for their great wisdom. That probably comes as a surprise to you. Well, think about it. Judges are elected, or appointed to the bench ... clearly a political process. When you vote for judges, how much do you really know about them? Candidates for judicial office run on the nonpartisan portion of the ballot. Candidates for partisan office can be expected to share the philosophy of the political party. That at least gives you an idea whether this is a person you want to vote for. Judicial candidates, on the other hand, are elected principally based on name recognition. Judges who are appointed generally have had significant political activity, although not necessarily as a candidate for office. The State Bar Committee on Judicial Selection screens appointments. Some argue that appointed judges are more likely to make better judges. However, that position has not been substantiated by any reliable measure. I am not here to debate the pros and cons of either method of selection. That's for another night and a different venue. However, my point is that the skills necessary to be elected or appointed to the bench are not the same skills necessary to judge wisely. Hopefully, in most cases, the judge selected by the voters or the governor will have both.

There's one thing for sure. The judge's job is to decide. When making a decision or rendering an opinion, I must follow the law, whether I agree with it or not. My decision cannot be affected by public opinion. Judges must make decisions by applying the law and, particularly in family cases, a dose of good common sense. Now in my eleventh year as a judge, I've literally made thousands of decisions. Not everyone is pleased with my decisions. Only a very small percentage of my cases make the newspapers, but those that do are controversial in some way.

In cases where I have had a jury trial, I enjoy talking to jurors after they reach their verdict. I always ask them, "Do you feel differently about the cases you read about in the newspaper?" They respond in the affirmative. "I never realized court cases were so difficult." "Both sides had some good points." "Sometimes it's hard to decide who's telling the truth." "I'm glad I don't have to do this every day." I then ask them if they will consider criticism of the courts differently after their experience as jurors. Invariably, they say they will.

Now with that slight detour, let's look at how judges divide the baby in modern times. Our Family Court in Oakland County has taken a proactive approach:

The judges have volunteered to serve in the Family Court. We do this work because we want to.

We have special training in matters related to the family. Further, we are committed to continue learning new and better methods of handling family cases. We believe that children are best off if parents who know them, love them, and understand them make the decisions affecting their lives. I tell parents that I'm the last person who should make life decisions about their children. Our court is committed to helping parents learn ways of handling decisions about their children without the judge.

We have initiated new procedures to make the court more family friendly. For example, we require all parties to meet with representatives of the Friend of the Court soon after the case is filed to explain what the court can do (and can't do), and what is expected of the parties. We try to get the parties talking about things on which they disagree in hopes that they can work things out. For many, just starting the discussion is enough to help parties reach important decisions.

Additionally, we offer an educational program for all parents going through a divorce. It's called SMILE: Start Making It Livable for Everyone. This program was developed in Oakland County ten years ago, and has received state and national awards. With the advent of Family Court, we made attendance mandatory for all divorcing parents with minor children. The purpose of the program is to help parents understand their children's needs during a divorce, and encourage them to set aside their feelings about the other parents and give their children permission to have a healthy relationship with both parents.

Members of this church should be proud to know that SMILE has been presented in this facility for the entire ten years. If you are interested, you may attend free of charge. We offer it twice monthly, on the first Thursday and second Monday of the month from 6:45-8:45 p.m. Call me for more information.

We also use mental health professionals as experts to evaluate parents and make a recommendation concerning children's care. We use social workers and psychologists to mediate disputes between parents in hopes that with their expertise and guidance, parents can come to an agreement on issues affecting children. For difficult cases, the judge may appoint a Guardian Ad Litem, or attorney for the children.

If all of these techniques fail, the case comes to me. I hear the parties, their witnesses, and other evidence. I am not King Solomon. Yet, I am regularly called upon to exercise great wisdom in determining what will happen in the lives of children. Each case I hear has different aspects. Each child and family has different needs. Therefore, hard and fast rules are impossible. There are certain factors the court must consider, and relatively few appellate court cases for guidance, the judge must carefully weigh the concerns of each parent, and attempt to fashion a decision that is in the children's best interests. The Family Court Judge exercises broad discretion.

The last thing I do, in cases where they are old enough, is talk to the kids. What a scary experience for kids to be brought to the courthouse and escorted into the judge's chambers alone! I try to make the child comfortable by talking about school, their friends, what they like to do in their spare time. I'm sure they nervously wonder, "When is she going to ask `the question'?" I don't think children should be asked to choose between mom and dad. Instead, I frame my questions to get at feelings, attitudes, expectations and preferences. I tell children it's my job to make decisions when their parents cannot agree. However, it's important for me to hear what everyone has to say before I decide. That includes anything the children think I should consider. This gives them an opportunity to tell me things, but only if they want to. I never put them on the spot.

One little boy, whose mother was absolutely opposed to allowing his dad to have summer visitation out of state, told me he didn't want to go. I told him I would make the best decision I could, but that it was possible he would disagree. After further discussion, he told me he would go along with whatever I decided. I sent him to see his father. When the summer was over, I was told he enjoyed himself. During a later interview with a psychologist, he was asked about visiting his father again the next summer. He said, "Don't ask me that question. I want the judge to decide."

"Give therefore thy servant an understanding heart to judge thy people, that I may discern between good and bad: for who is able to judge this thy so great a people?" I Kings 3:9.