If the law in that jurisdiction allows such things, then the law
needs to be changed. NOW.
The judge is the very one that decides whether the law allows such
things or not. If he or she thinks it is allowed, then it’s
allowed. In essence, their very word is the law. Our opinion, or
even the opinion of an attorney as to what the law says or doesn’t
say, really doesn’t matter, in their court at least. An attorney can
only try to convince a judge of what the law says and how it applies
in a particular case. They have no say in what the judge finally
decides.
In Dad’s case, it wasn’t the law, it was the judge’s interpretation
of the law, and the woman’s ability to really perform the “poor,
poor, pitiful me” act. Judges have an incredible amount of leeway
when it comes to interpreting the law and can, and sometimes do,
decide the law just doesn’t mean what you or I or even the
legislators that wrote the law might think it means. Sure it’s
possible to appeal, but that costs money, and there’s no guarantee
that an appellate judge will overturn another judge’s verdict,
especially if they play golf together.
The only way to change the mind of such a “free thinking” judge, is
to change the judge at the next election, unless they are appointed,
then we have to change the appointer. If it’s a lifetime appointment,
well, I guess we just have to wait it out. This sort of thing happens
at every level of court in the country, all the way up to the Supreme
Court. It is sometimes referred to as “legislating from the bench”.
It is specifically prohibited by the Separation of Powers clause of
course, but who’s going to stop it if not the voters? Because of the
Separation of Powers clause, no one, in any other branch of our
government can. Once a judge is in their seat, they are there until
their term ends, and can rule however they please on any case that
comes their way, unless they are impeached or recalled. That takes
some doing by a whole lot of really unhappy people, and even then,
the odds of them staying are in their favor.
My wife and I do volunteer work as Guardians ad Litem, which is
essentially advocating for neglected and abused children in court, so
we spend quite a bit of time in court, and preparing for court. It is
absolutely amazing to me how two judges can look at the same child,
the same parents, the same laws and come to radically different
conclusions. One judge will see a child that has been physically and
mentally abused by a drug addicted parent and conclude that the
parent should never be allowed to be left in the same room unattended
with that child again. Another judge will see the very same child and
issues and see the parent as a victim of their circumstances, and
that after receiving the proper counseling should be reunited with
their child at the earliest opportunity. Which one is right? The last
one to hear and decide the case.
Fortunately for the kids involved it’s not quite that simple, but
the final outcome still boils down to which judge finally decides the
case. And there are judges who’s decisions make our skin crawl.
Like I said, court stinks. It’s an absolute roll of the dice. There
are good judges and bad judges (the good ones far outnumber the bad
ones), and until you go before them, you don’t know which one you’ll
get. With one judge you win, with a different one you lose. Doesn’t
affect the judge one way or the other, until election day, and if no
one is paying attention, it doesn’t even matter then. All in all,
it’s a good system; I wouldn’t trade it for any other. Justice is
served the vast majority of the time. But still, it is what it is.
Avoid putting yourself at the mercy of the court if you can. You
might have a great case and win big. But you just might roll snake
eyes.
As a post-logue, after Dad’s case was decided and we were on our way
out of the courtroom, the lawyer apologized and told us that he had
been sure it was going to be an easy win. We got his bill a few days
later. Guess he figured that Dad’s case really was a good one. It
seems his time was worth something, quite a lot in fact, even
though his customer got nothing of value out of it. Incidently, the
judge was soundly defeated in his next bid for re-election. Seems Dad
wasn’t the only one to get screwed.
Dave Phelps