Smart Parenting During and After Divorce: Appearing Before a Judge

"That's my judge?" people have been known to say that once they see the waifish young woman, or the little old lady, or the Boy Scout leader, or the scruffy old man who will preside over their cases. Judges (also known as referees or magistrates) come from all walks of life, and they get to be judges in different ways—some by election, some by political appointment. They are all alike in one way, however: they wield a tremendous amount of power and can make your life miserable. That's the bad news. The good news is that I have worked for hundreds of judges in my career, and with the exception of just one or two, every judge I have worked for was earnestly interested in what is best for children.

After working in the legal system for a while, judges develop a keen sense for who is genuine and who is not. Judges are not always right, but they are always poking around for what is right. The laws that govern custody decisions are not as cut-and-dried as the laws that govern other aspects of human behavior. Most judges would prefer that Mom and Dad make the decision that they as judges are being forced to make, and most judges will give parents that opportunity time and time again. While doing so, the judge will assess who is reasonable and who is not, often through conferencing with attorneys and watching how people interact in the courtroom. I once saw a judge switch custody of a three-year-old boy who repeatedly tried to go to his father for attention and was thwarted by slaps on the hand and bottom by a mother who was trying to make it seem as if the child was merely misbehaving.

What Not to Do in Front of a Judge

It may seem as if judges are distracted when they are flipping around through papers at the bench, but most good judges that I know can tell you everything that is happening in their courtrooms. This brings me to my first piece of advice about how to act in front of a judge: if you absolutely must do something stupid, discourteous, or hostile, do not do it in front of your judge.

Here are some other tips:

• Do not start an argument in front of a judge.
• Do not wisecrack or joke in front of a judge. It might not offend the judge, but the point is that you do not know whether it will or won't. So don't.
• Some people laugh nervously or joke when they are nervous.
• Do not do either.
• Do not chew gum.
• Do not appear before a judge in jeans or a ripped T-shirt. Wear nice, professional clothes.
• Do not go in your prom attire.
• Do not wear heavy cologne or perfume.
• When a judge speaks to you, look at her, think before you speak, and answer in the shortest possible sentence to get your point across. If a judge asks you a yes or no question say "Yes," "No," or "I don't know," and then add "Your Honor."
• Do not interrupt someone else, jump in when someone else is speaking, or blurt out, "He's lying." The most patient judges in the world will politely tell you three, maybe four times not to interrupt. After that, you may be warming up the bench of a jail cell.
• If you are being represented by an attorney, let your attorney do all of the "lawyer stuff." Do not act like an attorney. If you are representing yourself (which is not a good idea) and the judge seems to be ignoring your side of the story, wait for a break in the conversation and say, "Excuse me, Your Honor:
• When it is possible, may I address the court?" If a judge denies you the opportunity to speak, it is either a very good or very bad sign. It is probably a good sign if the judge has not yelled at you for anything and seems to be perturbed at the person on the other side. If the judge does not want to hear from you in this case, it usually means, "Quit while you are ahead." Some judges will tell you this directly. If a judge will not let you speak and you have been making a nuisance of yourself, and the judge has been telling you to be quiet, it is probably a good idea to remain quiet and wait until the judge asks whether you have anything more to say.
• If you have done something that obviously offends the judge, apologize if you have the opportunity. Apologizing is different from "sucking up." Apologize by saying, "If I offended the court, I did not mean to, and I am sorry." Do not go overboard in an obvious effort to endear yourself by turning one simple sentence into a speech. Judges do not like to listen to speeches, from lawyers or litigants. A speech, by the way, is different from an explanation. A speech is self-serving and repeats the same point over and over ad nauseam. An explanation is when you answer a judge's question in a point-by-point manner. When judges ask you a question, they want you to answer the question they asked and not the question you wish they had asked. There is a difference, and judges know the difference. When a judge asks you, for instance, what you were doing in your living room when there was a stay-away order that instructed you not to be in the house, do not start by saying, "Well, Your Honor, my wife would not give me my baseball trophies and my hunting rifles, even after I asked her. She wants to ruin me and make me penniless and homeless. . ." Similarly, if the judge asks you, "Ma'am, why hasn't your husband received his court-ordered visitation for the last three weekends?" don't answer, "Well, Your Honor, Mr. Smith has owed me $600 in unreimbursed medical expenses for more than four months." The correct answers to these questions are "I should not have been in the living room, Your Honor," and "There should have been visitation on those weekends." Most lawyers will tell you that judges already know the answers to a lot of the questions they ask—they just want to see if you know the answers to those questions.

Any lawyer who advises you to answer a question that has an obvious answer with an excuse is taking the chance of putting you in a bad position with a judge. There is a right time to bring up your agenda. Lawyers who understand this timing are usually great lawyers. Lawyers who don't get you in trouble.