Call The Referee

The story that follows is true. It occurred almost thirty years ago. I have changed identifying details and some of the circumstances to protect the privacy of people described here.

“He hit my mom, though”

I got a call from a child protective services social worker on a Friday, about four hours before the end of the working week. A judge had just decided to return two children, a fifteen year old boy and his grade school sister, back to their father, despite the fact that the boy had alleged that the father had once choked him and that he was scared of him. His parents were divorced. The mother, the social worker reported, was ineffectual and disorganized, had an off-and-on alcohol problem, hadn’t followed through on all the judge’s orders, but she was never abusive. The judge was really irritated with what he considered her non-compliance, and was intending to return the children from foster care to the father, who lived in another state. She said the father had taken a parenting class and an anger management class, and says whatever problems there might have been, they aren’t relevant any longer. She asked me if I could interview the boy, write a report and somehow have it in the judge’s hands before five o’clock, four hours from now. “I really don’t think these kids will be safe with him and you’re my last hope.”

I had no time for record review, no time for any collateral contacts. I told the social worker that all I could do was talk with the young man, and write up my thoughts. It could not be considered a true assessment. “I know,” she said, “but you have a reputation that kids open up to you. Maybe Jamey will tell you something to make the judge think again.”

Some of the readers may be a little puzzled by this exchange. Why couldn’t the judge just talk to the kids himself? This is rare in child custody cases, particularly when child protective services are involved, that the judge speaks to or even sees the children. Instead, a variety of advocates—social workers, guardian ad litem/CASA workers, lawyers, the parents—all speak about the children. These are not criminal trials; they are civil matters, decided in family court. That the children do not testify directly makes considerable sense, because they would not be giving evidence of a crime, per se: rather, they would be expected to describe nasty, confusing, overwhelming things, be challenged by attorneys, feel ashamed and guilty, and all of this with their parents looking on. Beyond all else, the child would almost always be put in a position where she or he would have to betray at least one parent. Imagine being a child, sitting in a court room facing your parents, testifying about the hurtful or shameful things they may have done, under pressure from attorneys, often being required to answer, implicitly or explicitly, which parent - or neither - they would prefer to live with. The potential consequences to that child are terrible in so many ways.

On the other hand, the judge only sees the children in the abstract: through the words and presentations of parents who have been prepared by their attorneys to look good when they testify, as well as the words and reports from various professionals who carry their own bias’s. [Me included]. Let me give you an example: A mother slaps her son in the face, hard enough to bloody his lip. Should the boy be removed from her custody? Why was he slapped? Does it matter if she had told him to turn off his computer game, and he stood up, loomed over her, called her an obscenity and spit in her face? Different professionals will have a different perspective and this determines how a report is written.

• Mrs. Vasiliev, in a fit of anger, violently smashed her hand in a full-armed swing into the face of her fourteen year old son, who, due to her ineffectual parenting and passive-aggressive communication put the boy in a double-bind situation. If he resisted, he would be punished, under the guise of “consequences”; if he turned off the computer game, she had dominated him once again, which would fuel further controlling actions on her part. Anton’s actions were a desperate attempt at autonomy in a situation where he could find no other option.

• Mrs. Vasiliev, one hundred and five pounds, told her son to turn off his violent video game, where he was currently watching a man decapitate a woman with a chain saw. Anton, weighing two hundred and forty pounds, who has previously attacked his mother, stood over her, and with a smile, spit in her face and when she slapped him, said, “Got you,” and called 911.

It is up to the judge to decide among the various professional opinions. In theory, the judge is the magisterial other, apart from vested interests, who can weight the actions and opinions of the various players and come to the best decision in the interests of the child. How dispassionate is the judge, really? How unbiased? Consider the discussion on the “hungry judge effect,” where judicial and parole decisions are clearly influenced in various ways by hunger and fatigue.

There is no perfect answer. Sometimes I wonder if there is even a good answer.

I arrived at the foster home at about 2:00 AM. The boy was in the basement, morosely packing a single suitcase. His sister, at another home, was probably doing the same. Jamey was a skinny pale-skinned youth sandy-haired kid, fifteen, clearly miserable. He said that his father was a bully and a yeller, that’s he slapped him on the back of the head, or grabbing the back of his neck, ground one knuckle between his eyes.

“How about your sister?

“He never hit her. She isn’t good at school, though, and he calls her a retard when the teacher sends notes about her classwork . . . He used to hit my mom, though. He always calls her a stupid, drunken bitch.”

I asked about his allegation that his father had choked him. “Yeah. He grabbed me by the throat. He actually lifted me off my feet by the neck and pinned me against the wall, choking me with one hand. He gets mad at me when I don’t do my chores, when I don’t wash the dishes right, when I breathe too loud through my nose. He calls me a pussy and a faggot and smacks me if I look back at him and smacks me if I look down, and says if I don’t like it, I should come out in the yard with him and ‘get some.’’ He’s twice my size!” I asked where he wanted to live, and where he thought his sister would want to live. “We want to live with our mom. She’s nice. I wish she wouldn’t drink. But me and Melanie aren’t scared of her. She’s nice to us. We are both really scared of dad.”

Jamey told me what town he’d be living if he went back with his father, and I asked, if they did return him to his father’s custody, if I could call the school counselor. He said, “I don’t know her. Or him. I’ve never been to that school.”

I said, “I know. But it would be nice if someone knows you are coming to the school who knows what’s happened in the past in your home. All you gotta do is introduce yourself the first day. That way you’ll have someone local to talk to, in case things get bad again.” He signed a release of information so that I could speak with counseling staff at the school he would be attending.

I wrote up a summary of our meeting at a coffee shop near the highway, and emailed it to the social worker who was waiting at the courthouse to print it out and submit to the judge. I underscored all the limitations of my report, my lack of information from any of the other parties, the limited time I had spoken to Jamey. All I could do, I wrote, was report what Jamey told me, and my recommendations based on his statement. Within those constraints, I recommended that, at minimum, the children stay in foster care while further assessment of both parents was done. As an alternative, given that, according to the social worker, there were no accounts of either abuse or neglect on the part of the mother, consideration should be made to assess her current alcohol use, and if in remission, the children could be returned to her care, under child welfare services supervision and supportive services. The judge received my report, but as I was told later, sustained his decision to return the children to their father. I didn’t like that, but with the exception of one last thing, there was nothing I could do.

I called the school the next week, spoke with a guidance counselor and outlined the bare bones of the situation. He agreed that he would find a way to introduce himself to the boy in case he did not drop by the office as he had promised me he would. And that was the end of the case, as far as I knew.

“You Have A Great Reputation”

Eight months later, a dank winter evening with sleet blowing outside, I was just sitting down to dinner when there was a knock at my door. Outside was a tubby little man with slicked-back hair in a checked sport jacket. I opened the door and he stepped forward, as if to walk inside. I put up a hand, and he slapped a couple sheets of folded paper in my hand. “That’s a subpoena.”

I said, “Who are you? A process server? What’s this about?”

He said, with a very smug look, “No. I’m an attorney. I’m subpoenaing you so that you’ll testify in one of my cases. It concerns an allegation of child abuse in a case that you were previously involved in.”

“As an expert witness?”

“Yes.”

“So, why didn’t you just call me or send this to my office instead of this?”

He was a smug little man, who let me know how proud he was to have gone down to the recorder of deeds, found my home, so he could just drop by. He told me that he was the attorney for the father of the boy I’d interviewed previously, that the younger sister had made a new allegation of physical abuse, “ . . . that is absurd on the face of it, that he allegedly spanked her when she got bad grades, c’mon, the mother put her up to that . . .” and the case was returned to the court for a new hearing. Given that I had to testify, regardless, and the sleet was blowing into the house and onto me (I didn’t care about him), I figured it’d be better to invite him in rather than just talk in the doorway.

I said, “As an expert witness, I expect to be paid for my work. I charge an hourly rate of $… for record review, for any interviews I do, for preparation for testimony and for the testimony itself. I also charge for travel time for any and all of this.” He agreed without hesitation, without any questions how long that would take, who I would want to interview, what I estimated a total fee might be, even though this would have to be paid by the father. I continued, “There’s something else you should know. Nobody buys me. Your client is hiring me, but I testify the truth as I know it. And you are surely aware, having read my report, that I did not have a good initial impression of your client from what Jamey told me. That opinion very possibly would not change after a full, formal parenting assessment. I could very well get up on the witness stand and testify 100% contrary to your client’s hopes.”

“Mr. Amdur. You have a great reputation on all sides: the courts, CPS, the Assistant Attorney Generals (AAG), the public defenders. We would ask nothing less from you! I have full faith when you completely review the case and meet Mr. Butterworth and see the love between him and the children, that your opinion will change.”

He already had a copy of my three page report, but he also asked for a copy of my interview notes (he had a right to them). These were rapidly scribbled: brief descriptive phrases of Jamey’s body language, and partial quotes that I would flesh out later, all on a small pad, as I had been looking at the kid as he talked and taking notes in my lap.

The whole thing was odd: the gamy drop-in at dinner-time, the subpoena that he could have sent in the mail, the ready agreement to my rates, without any question of the scope of a full evaluation, and the smarmy “confidence” in my integrity and skill. I also didn’t like how he made himself at home in my living room, sitting down before an invitation to do so, nor the compliment about a photograph of my wife that, although absolutely proper in words, was also off. When he left, I felt like my furniture had been smeared with hair gel. However, I just chalked this all up to sleazy lawyer shit. I’d do my work and let the facts speak.

A number of months passed, and I never got the records he promised, nor did I get the names or numbers of people to interview. There was no appointment set up with the father, no plan for me to observe hin and children together. On the three occasions I called to inquire about this, a secretary told me, each time, that the case had been continued, and, she reassured me that I’d be contacted well before the case was ready to go to trial, all necessary records and contacts would be sent to me, and the court would be contacted for approval for me to observe the children with their father in a safe setting, something I required in all parenting evaluations.

“I Wonder What You’ll Have One Of Your Interns Do In That Time Period.”

At seven-thirty one morning, I got a call from the attorney. “The case is today. We won’t be using you as a witness after all. Since we ended up not needing you, we don’t owe you anything.” When I asked what had happened, he cut me off. “Gotta go. Thanks very much for your time.”

Fifteen minutes later, I got a call from the AAG. “Mr. Amdur. We just got word you won’t be testifying! We had intended to call you when the case re-opened, but when Mr. Spooner submitted your name as a witness, that was OK, because we knew that you’d just testify on your account of your interview with Jamey. And we knew he hadn’t engaged you to do a comprehensive evaluation, so we had confidence in what your testimony would be. He did this deliberately! Locked you down as his witness and dropped you at the last moment so you couldn’t testify! What are we going to do now? We really wanted you to testify about your interview with Jamey, and you’ve been dropped from the witness list!”

“Well, it’s a thirty minute drive to the Lamarck City Courthouse and they’ve got a great coffeeshop three blocks away. I am so thirsty for a macchiato this morning, and I can’t think of any place I’d rather be. I also love to drink coffee in my best suit, with my briefcase in hand. I wonder what you’ll have one of your assistants do while I’m doing all that.”

At eight forty-five, just as I finished my second macchiato, an intern dashed in with a new subpoena from the AG’s office, and at five before nine, I strolled into the courthouse.

Mr. Spooner was in a side-room prepping his client, a hulking man with a red face, wearing a green-and-black flannel shirt. Spooner saw me, hurried out into the hallway, and said, “What the hell are you doing here? I told you we don’t need you!”

“I know. I was minding my own business, drinking a macchiato and eating a croissant, and suddenly, I got a subpoena slapped in my hand. Why do you people always catch me when I’m having a meal of some kind?”

“ . . . Puts His Whistle In His Mouth . . .”

I didn’t get to testify until the afternoon. That was the part I always hated most about court appearances. Waiting in the hallway. I couldn’t bring a book, because I didn’t want to lose my focus. I was in the lawyers’ playground and they made the rules. I was used to having them twist my words, misrepresent what I wrote, give me a memory “test” to recall something that I’d read six months previously within a file five hundred pages thick. So, I’d just sit, look at the walls, and practice breathing exercises. It always made me tense, like waiting half-a-day to step onto a judo mat or a boxing ring.

Eventually, I was on the witness stand. The judge was a wizened old man with a beaky nose, perpetually grumpy, at least as I saw him in previous cases. He used to snap at everyone: attorneys he thought were unprepared, and witnesses such as myself, who he didn’t think spoke with common sense. The AAG ran through my resume, establishing me as an expert witness. Spooner kept objecting, saying I was unqualified, unconventional and unprofessional, and was slapped down by the judge each time. The mother was at one table, nervous, teary-eyed, one leg jiggling up and down. The father was glaring at me under his eyebrows, his hands together, the thick hairy fingers intertwined, kneading, twisting, as if he was snapping a chicken’s neck and trying to tear it off its body. I recounted my interview with Jamey, how I found him to be creditable, and what my concerns were at the time.

When it was time for cross-examination, Spooner got up and lit into me. We spent ten minutes establishing that my Masters degree was not a PhD. We spent fifteen more minutes discussing why I hadn’t submitted a psychological test to Jamey, throwing out a lot of abbreviations for tests that I didn’t know, before I wrote my report, which proved I was unqualified. (I never did psychological testing in any of my over one hundred sixty evaluations - it wasn’t part of either my training or my methodology). He waved my small notebook at me, and asked me what kind of professional would keep such sloppy notes, that they were illegible. I replied, “Well, you’ve had them in your possession for half a year; you could have called me any time and I’d have been happy to go over them with you.” He told me to answer the questions as he asked them and not smart off at him.

He asked me if I considered myself an expert witness. I replied that the courts had recognized me as such. He asked my rates, and I gave them, and he said that they were inordinately expensive, and I replied that he’d already agreed to them himself and hadn’t told me that he found them expensive then. He told me to answer the questions as he asked them and not smart off at him.

He accused me of being a shill for Child Protective Services and the mother—how could I claim to have provided a full assessment when all I did was pressure a young lad, isolating the boy and making him so intimidated that he said things that conformed to what you and CPS wanted. I said that I hadn’t provided a full assessment, and explicitly stated that within my report.

“Sure. What’s clear to me is that you deliberately isolated him in a basement, far from any adult who could protect him in order to influence him. (I interjected that it was for the purposes of the boy’s right to confidentiality, and he told me to be quiet, he hadn’t asked the question yet, and the judge told him to get on with it). “So, you scribbled whatever you pleased, and since it’s illegible, and we have no audio tape of the interview, we have no idea whatsoever if your report is the product of browbeating and intimidation, subtle manipulation, or complete fiction. I replied that I simply reported what Jamey had told me, and that it was an eleventh hour request from the social worker in what she considered an emergent situation, and that the court allowed this, and then accepted my report.

Spooner said, “So, you admit that social workers just call you up, some kind of pseudo-expert with a minor degree, and they tell you what they want to hear and you provide it that to the court, like ordering something off a menu.”

The AG objected before I could reply, and Spooner then said, in a patronizing tone.

“Mr. Amdur, you are aware, are you not, that Jamey is a high school wrestler?”

“No, I am not.”

“So, that didn’t come up in your (finger air quotes) interview. One would have thought that such an important question as to a child’s activities would figure into an assessment as to what kind of child he is. By the way, Mr. Amdur, I would assume, then, that you may not be aware that Mr. Butterworth was a college wrestler?”

“No, I am not.”

“Mr. Amdur, do you have children?”

“Yes, I do.”

“Perhaps it doesn’t happen in your house, you are a therapist, after all, and you people have your own ways, but are you aware that in n-o-r-mal houses, fathers and sons sometimes rough-house?”

“Yes, I am aware of that.”

“So, Mr. Amdur. You are aware that wrestlers choke each other, that fathers and sons when wrestling, could choke each other and there would be no abuse involved whatsoever!”

“That’s not correct at all.”

Shouting. “Yes, it is!”

“No, it is not. It is explicitly against the rules for a wrestler to choke another wrestler, and when he does . . .” I turned and pointed at the judge, “ . . . the referee pulls out his big whistle and blows on it real hard and makes it stop.”

Spooner started yelling at me, and the judge, who had looked bored throughout, popped his head up from his black robes like a turkey vulture roused from sleep, glared at me and my pointing finger, then turned away with his shoulders shaking in laughter.

Spooner yelled he had no more questions, and I was dismissed. The next day, the judge decided the kids could return to their mother.

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