Britney's audience is the judge in family court.

Britney's audience is the judge in family court.

Britney's audience is the judge in family court.

The law, lawyers, and the court.
Oct. 2 2007 4:08 PM

Not That Innocent

But Britney still has a chance to show the court she's fit to be a mom.

Britney Spears. Click image to expand.
Britney Spears

There is no pity for Britney this morning. That sound you hear is all of us— print, TV, bloggers, talk-show callers—tearing her to shreds. Memo to celebrity starlets: You can tank your career, break up your marriage, serially forgo wearing underpants, snort coke, shave your head, attack the paparazzi with an umbrella. You can lose your mind right in front of us. But lose your kids, and you're lost to us. When a judge steps in and says that your children will be safer and better off without you, he brands you as a lower form of life: the unfit mother. And then no publicist or hit album or surprise comeback performance can fix things. You have to claw your own way back.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

Britney Spears is especially scorn-worthy today because we think we know why L.A. Superior Court Commissioner Scott Gordon temporarily gave Kevin Federline, her ex, custody of their little kids, Sean and Jayden. Never mind that all the records in the case are sealed and that Gordon didn't explain why he scrapped the 50-50 custody arrangement Britney and K-Fed previously agreed to. Never mind, also, that the judge's Monday order is temporary. None of that matters because Spears' sins are self-evident. Two weeks ago, Gordon told her to meet with a drug counselor, sign up for a parenting class, and go in for drug testing twice a week. She, and K-Fed, for the record, were supposed to go for counseling together and get their driver's licenses. As TMZ put it, Spears "did everything wrong … by doing nothing."

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Judges don't like to be ignored, and they take a particularly dim view of parents who don't seem to understand that they're supposed to be proving themselves worthy of the court's trust by cleaning up their act. The instructions that Gordon gave Spears were designed to walk her back from the brink. When the judge found that she was a "habitual, frequent and continuous" drug-and-alcohol user in September, he did what he could to separate her partying from her mothering. Spears and Federline, again, were told they couldn't drink or use drugs within 12 hours of seeing their kids.

That's a pretty good line to draw: It signaled that Gordon didn't unrealistically expect Britney and K-Fed to suddenly kick their habits, but he was ready to demand that they keep it away from their boys. If it's hard to imagine that these people actually take care of their kids themselves—without a corps of nannies—the fiction is still a useful one, because who else do you hold to account? Plus, it's Britney we've seen driving her baby around in her lap and almost dropping him. The twice-weekly drug testing that Gordon ordered, of course, is his tool for measuring compliance. By not doing it, Spears acted like she didn't care—whether about the kids or the court, it no longer really mattered.

Ditto Spears' failure to get a driver's license. Last month, she got into a fender bender while driving without one, allegedly left the scene, and got charged with a misdemeanor. Her kids weren't in the car at the time, and driving without a license may not sound as bad, in parent-judging terms, as skipping counseling or drug testing. That's presumably why Sorrell Trope, Spears' new lawyer (the previous one quit), singled it out for comment. ("Specifically, the judge ordered that by 10 a.m. Monday morning, both parties show valid California driving licenses. I've been unable to produce evidence of that," Trope said.) But Spears' lack of a license suggested, again, that she doesn't understand that it's the judge who is making the rules. If you're the mom who got in trouble for driving with your kid in your lap (and then, less fairly perhaps, for putting him in a car seat that was facing the wrong way), you just can't afford to be photographed driving your kids around, licenseless, after the judge told you not to.

Which is why it matters that after yesterday's hearing, Spears headed to the DMV. Yes, she also visited her favorite tanning salon, and yes, you can dismiss applying for her license as the bare minimum move that even the lousiest publicist would make sure of. But Gordon should welcome it. A good judge overseeing a custody dispute shouldn't care why a mother is digging her way out of the unfit pit. He should just encourage her to keep shoveling. That doesn't necessarily mean giving the kids back right away if there's real reason to worry about their physical safety. But it does mean recognizing, in some concrete way, that the parent is trying. Family courts are supposed to operate for the benefit of kids, and it's rarely in a child's interest to take him away from his mother or father for anything like forever. However exasperated they get, judges need to keep rooting for the miscreant parent.

That's especially true in a custody battle like this one. K-Fed is hardly looking like the ideal long-term alternative here—his drug use has also concerned the court in the recent past. Maybe he only looks good now because Spears looks so infuriating. And she does look infuriating: It's worth noting that it's pretty unusual to lose your kids without a full hearing, as Britney did. She might have done something even more egregious than the stuff we already know about. Or maybe Gordon was showing her that you just can't defy a court order that concerns your kids. Once the law has a window into your family, you have to behave as if you're being watched.

After all the years of scrutiny, Spears should be used to that. And yet she can be forgiven for forgetting that a judge has to hold her to the same standard as any other parent, when no one has before. Blow MTV's Video Music Awards, and you disappoint your fan base for the night—which means they'll be all the more ecstatic to be wooed back. Blow a court order, and you've got harder work ahead of you. Now Britney knows: The only audience that matters is Judge Gordon.