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Hear Me, Hear MeSometimes, all a family court judge can do is listen.

By Dahlia LithwickPosted Thursday, Nov. 15, 2007, at 1:23 PM ET

Judge Chuck WellerTwo murders—on opposite sides of the country—have transfixed the media in recent weeks, as only the most gruesome family tragedies do. In each case, a parent was murdered while dropping off a child for a court-ordered custody switch; and in each case, the surviving parent quickly became a suspect and almost immediately lost custody. Both families had been tumbling around for years in the family courts. And both murders followed immediately upon custody proceedings in which the surviving parent felt they'd gone completely unheard by a family court judge.

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Two dead parents, two orphaned children, and two surviving adults certain they were robbed of a chance to be heard-out in court. It hardly justifies murder or even threats of murder. But it does go a long way toward explaining why family law judges have the toughest job on earth—persuading both sides they were fully heard, while making fundamental changes to the structure of their lives.

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Dahlia Lithwick wrote about her association with the Darren Mack case last year. She found that most marital disputes, like the 2001 Rudy Giuliani and Donna Hanover divorce, devolve into a fight over "victim status." Michael Newdow argued that the family courts exacerbate and create familial conflict. Emily Bazelon assessed the Britney Spears custody battle and found that "judges don't like to be ignored," either.

Last week in Las Vegas, Reno, Nev., millionaire Darren Mack shocked the court by pleading guilty, midtrial, to killing his estranged wife, Charla, in June 2006. Allegedly, Mack stabbed her to death in his garage during a custody transfer, as their 8-year-old daughter watched television upstairs. He then drove to the courthouse, shot sniper-style at his family court judge, Chuck Weller, in his third-floor chambers, and fled town. Mack also entered an Alford plea—admitting there was enough evidence to convict him of shooting the judge but claiming he had not intended to kill. (Disclosure: I worked on Mack's first divorce case when I clerked at a family law firm in Reno. I never met Judge Weller.)

Also last month, Dr. Daniel Malakov, a dentist, was shot to death at point-blank range as he entered a playground in Queens, N.Y., with his 4-year-old daughter, Michelle. They were at the playground for a visitation drop-off to her mother, Dr. Mazoltuv Borukhova. Amid all sorts of claims and cross-claims of abuse and neglect, Borukhova lost custody of Michelle last week, and the child is in foster care. Police questioned Borukhova for nine hours in an effort to determine whether she had been involved in the murder. She is not currently a suspect, although death threats by her family and other disturbing behavior have the police investigating whether this was a paid hit.

Both the Mack and Malakov families had been involved in protracted divorce and custody proceedings that were striking—even by family court standards—for their ugliness. The Macks had been arguing, among other things, over a million-dollar residence, primary physical custody of their only child, a $200,000 diamond ring, and unpaid alimony. They had been ordered to have no contact. Malakov and Borukhova had also waged a bitter custody battle over Michelle, with Borukhova's unproven allegations of sexual abuse by Malakov countered by his contention that she was interfering with his visitation rights.

We may never know what caused these two custody battles to devolve into violence and death threats. But it may not be a coincidence that both Mack and Borukhova felt wronged by the family courts. Mack was convinced his family court judge was persecuting him, and Borukhova had apparently lost custody without a hearing.

In the weeks before he murdered Charla, Darren Mack was frustrated and then enraged by Judge Weller's interim custody and support order, which resulted in shared physical custody and the requirement that Darren pay Charla $10,000 per month in interim spousal support. Darren didn't pay, Weller found him in contempt, and Darren declared bankruptcy. Convinced that Weller "had made up his mind prior to coming to court, … didn't like him and no matter what he did, Weller would rule against him," as a friend explained, Darren launched a crusade. In a video taped before the murder, he compared family judges to Nazis and claimed it was time to "take a stand" against the injustices in the court—just like "our forefathers did in 1776." After the shooting, he left a message on his cousin's answering machine demanding, "If anything happens to me, please make sure that the true story about the injustices that are going on in that courtroom get out to the media and the public."

When Mack agreed to plead guilty last week, it was only after extracting from Judge Douglas Herndon, who oversaw his murder trial, the promise that he could tell his side of the alleged crime. Mack agreed to the guilty plea because, as he put it, "at my sentencing … I will have all the time I need, because there are some very important things I would like to share. I have remained quiet thru this whole thing and now I would like to come forward and speak."

Mazoltuv Borukhova was outraged by the Oct. 3 decision of Sidney F. Strauss, a state Supreme Court judge in Queens, to transfer temporary primary custody to Malakov, evidently without a hearing. Even if a judicial move like this sounds familiar—courtesy of the Britney Spears 24-hour legal cable extravaganza—it's almost never done. Judge Strauss, however, switched custody because Borukhova "was allegedly not cooperating with supervised visitation." When her efforts to appeal that decision failed, the family went through a tumultuous custody exchange on Oct. 22, at which, according to Malakov's family, his estranged wife allegedly made death threats against him.

Like Mack, Borukhova is a parent who feels she has become the object of a legal proceeding that punishes her without listening to her. No surprise, therefore, that at a recent custody hearing, Borukhova begged the court as well as assembled reporters, "Please, I want to talk, I want people to hear me. Everyone is accusing me. Let me explain what happened." She even met with a political consultant and planned a protest at the White House before the murder, because she needed to tell her side of the story.

Family court judges cannot possibly do what they are charged with doing each day: split families in half without devastation. No mathematical formula can turn one income into two or allow the finances that supported one household to support two of them. Overnight, two full-time parents may be reduced to two half-time parents (in the best cases), and one child is magically expected to appear at two Thanksgiving dinners each year. It sucks. And faced with a legal pleading that on its very face reads Father v. Mother, parties are bound to become adversarial, and also bound to believe that one of them can "win" this thing.

There is pretty much nothing a family court can give the Darren Macks and the Mazoltuv Borukhovas that would satisfy them. But that makes it all the more vital that they at least have the opportunity to tell their stories. These stories may be repetitive and aggravating, tragic and heartbreaking, whiny or self-aggrandizing, truth or lies. But at the end of the day, when your home, your money, and your kids are all split in two before your eyes, your whole narrative is all you have left.

Maybe Judge Weller—relatively new to the family bench—did all he could for Darren Mack, although testimony from the murder trial suggests that there were serious misunderstandings following conferences, and that Mack believed he was being summarily dismissed. Likewise, Judge Strauss evidently "reviewed three years' worth of legal papers" before deciding to make the custody switch. In his mind, that was probably hearing enough. Both judges may also have been sick to death of the bickering and lying from the parties before them. But each left a parent with the lingering impression they'd been ignored.

I used to tell people that Darren Mack snapped because he had spent the better part of his adult life in family courtrooms, bickering with his ex-wives (yes, he has more than one) over who spent which holidays with the children. But I've come to suspect—and I have never met Judge Weller, so I'm spitballing here—that Mack may have snapped because, after years of feeling listened-to in the family courts, even when he lost, he came across a judge who seemed to reach swift conclusions, without always hearing him out.

After he pleaded guilty last week, Mack went out of his way to thank Judge Herndon, saying he appreciated the "integrity" the judge had shown throughout the murder trial. There is much that needs fixing in the family law system. But, at least from the perspective of these two aggrieved parents, the quickest fix seems to be a family court judge who schedules one more conference, and presides over one more hearing, and truly listens, even when she thinks she's heard it all before.

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Dahlia Lithwick is a Slate senior editor.

COMMENTS

Remarks from the Fray:

I'm an attorney with a little experience in family law in Southern California. Family courts are already overbooked and overworked. They are the "wild west" of the judicial system because judges must decide matters quickly, usually with incomplete information (often because the parties do not provide complete or accurate info), and frequently without regard to technical procedures and safeguards. Arguments and tactics that would never work in a regular civil court often find purchase in family courts, and the litigants and attorneys take full advantage of this fact.

Judges do not like making decisions under these circumstances, but they do not have a choice either. Taking more time or holding another hearing for every case is simply not an option because there are not enough courtrooms, staff, and judges as is.

The best solution, of course, is to direct more money into the judicial system to build more courthouses, hire more staff, and more judges. Unfortunately, the American taxpayers appear to have other priorities.

--jascob

(To reply, click here.)

Judges in general have great power, but the family court judge is usually free to do things that would bring down appeals court thunder on other judges. Indeed, they seem similar to juvenile judges. The theory is that "the kids need protecting", but it is ironic that we try and do that by eliminating most procedural safeguards and allowing the judge to act as a virtual dictator. At the same time, Family Law judges are among the least appreciated and rewarded. They get large caseloads of the worst litigants and are relying on horrible bureaucracies (like "child services") for key assistance. It is not uncommon for the judge to have to face a whole cadre of lawyers and bureaucrats.

I agree that court is not supposed to be "Talk Therapy." Indeed, as most attorneys will gladly attest, the less the litigants (i.e. parents) talk the better. Most clients think that they can somehow magically change the law and win over the judge if only they could get a chance to give a heart-rending speech. Their lawyers warn them, but I still see person after person talking themselves into a whole. At best they tend to go on about irrelevant issues and test the judge's patience. At worst, they simply demonstrate the lack of maturity/balance that has got them in court to start with.

Many of these folks need therapy and counseling -- which the courts are not designed to provide. Indeed, it is ironic that typically even when therapy/counseling is ordered by the judge, compliance is usually lacking.

The problem is usually not so much the judges - or for that matter other individuals -- but "they system." Without comprehensive reforms to the law, or our system of administering it, there is unlikely to be great progress. I won't hold my breath. For the foreseeable future, if you want a shoulder to cry on don't count on one wearing a robe.

--fozzy

(To reply, click here.)

I am a lawyer with a specialty in family law and children's rights. I have spent most of the past decade in family courts, usually representing children in custody and visitation disputes. I have seen the point that Lithwick is making here proven, over and over again. The family court judge I appear before most often is positively brilliant at making people feel heard and understood in these terrible struggles, to such a degree that more than once I have seen people thank him for deciding against them. This may be because he is a wise and careful man. Or it may be because, in his personal life, he has survived divorces and custody battles himself.

It's easy to sneer at this essential judicial skill as "talk therapy" but such judges are nothing like therapists and do not pretend to be. It's not about therapy. A court is a place where you are supposed to be heard. That's why they call it a "hearing." A judge who can truly listen, fully and attentively, to both sides, and (this is important) who can get across to both sides that he is listening, helps people live with the consequences of his or her decisions. This matters in every court, but so much more in family court, where the judges' decisions go straight to the cores of people's lives and reverberate there for decades after the court has moved on to the next case.

--beatrix

(To reply, click here.)

As a lawyer who occasionally works in family cases and as a divorced father who occasionally enters the same court as a party, I can tell you that feelings run exceptionally high in custody cases. As Lithwick points out well, there are no good solutions in that business. I sometimes say that family law is punishment for those who can't get along. My partner says that, in civil commercial law, lawyers get involved after the real war is already over, but in family law, lawyers are hired to conduct the war. It is a volatile situation to begin with. In my town, the family court was years ahead of the other divisions in getting metal detectors, and when they were first put into use, the guards confiscated dozens upon dozens of weapons from the courtroom-bound every day.

I can also tell you that there is an enormous value in feeling that the judge has heard what you had to say, and understood and appreciated it, even if he or she ultimately has to rule against you in whole or in part. It depressurizes the situation greatly.

Even in cases where I am the lawyer, not the party, and where passions do not run particularly high, it is extremely frustrating to get a one-sentence order ruling against you from a judge who has given you no indication whatsoever that he understands the complexities of the issue.

Pour over that frustration the already passionate feelings in a divorce/custody case, and you are creating an unacceptable risk that somebody is going to, literally, explode.

--RonB52

(To reply, click here.)

(11/18)

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