ANALEE
Before Karen leaves my office, she asks if she can read the only Supreme Court case in California regarding an ovum donor as parent. I lead her into my library and pull it down for her.
I had forgotten completely the half-completed jigsaw puzzle spread out on the table. I never let clients see my puzzles; they may think I play frivolous games on their time. But Karen gravitates toward it immediately, bending over it intently as if searching for a piece that fits. After a long silent moment, she stands upright and looks at me thoughtfully.
“Jigsaw puzzles helped me get back to normal when I was in the rehab center,” she confesses. “I’ll always be grateful for them.”
“I come in here to do them when I feel stuck mentally. If I approach them with humility and curiosity, I make progress, and work through my mental block.”
Karen shoots me a grateful smile. “My case must be giving you plenty of puzzle time.” I grin at her and nod. I had never confessed this simple fact to a client. Her reaction made me like her all the more. If I hadn’t accidentally let her see it, I never would have discovered this connection.
My mind is streaking. I uncurl myself from Adam as gently as I can, trying not to wake him, and glance at my watch. Nearly five; I’d had almost seven hours of sleep and can make it through the day even if I don’t return to bed. I unplug my laptop and take it to the kitchen table to release what has overtaken my mind.
SUMMARY OF ARGUMENT
Parentage is not an Olympic sport: the judge’s task is not to rank the contestants’ relative skill, performance or grace. A slip on the balance beam is not a disqualifying event. The judge’s function is not to decide who has the bigger or better home, the more money or more family members. The judge’s task is to determine whether legally – not as a factual matter – this child has more than one parent. That Karen is Dawn’s parent is incontestable: she gave birth to this child and her parentage is not challenged. Patty claims to be this child’s second mother, as if she needs one, which she does not. Whatever preference the law has for two parents, it does not require a second parent – especially where, as here, the single parent is fully capable. Patty’s quasi-parental rights as Dawn’s legal guardian have been legally and finally terminated, and she did not seek visitation rights for Dawn in that action. She cannot, by filing a second action to seek comparable rights, undermine the finality of the prior judicial determination.
By putting a summary in writing, I can now organize my argument and recite the authorities. I worry most about the second parent part; the cases seem to stretch to find a second parent except in the most desperate of circumstances where there is no one available. I have to reject what I know in my core as a parent, that I would be lost without Adam, and I wonder how Karen manages; but I remind myself that Adam and I set out to co-parent. A single parent does not have another parent engrafted without serious misstep. Karen’s temporary disability should not justify such a graft, especially when there has already been a judicial determination ending the guardianship.
My goal with this motion to dismiss is to preclude a trial. I am convinced this case should be dismissed as a legal matter, without getting into expensive discovery and a trial. I will rely as heavily as I can on the prior legal determination.
I hear a toilet flush from our bedroom and glance again at my watch. Six-thirty: Adam is predictably up, without an alarm, at nearly the same time each morning, ready to awaken our two boys, who would sleep until nine every day if they could. I save the argument summary, close the computer and return to our bedroom to dress.
Adam emerges wet and naked from the bathroom to embrace me. He whispers in my ear, “Streaking?” I nod. He named this trait in me, and now we just use the one word to convey what is happening. I cup his butt appreciatively. “Don’t think I don’t know what I’m missing.” With that he grins, returns to the bathroom to dry off and we each prepare for our respective days.
The two competing preliminary motions are to be heard today, both Patty’s for visitation and ours to dismiss. Patty filed hers first, but I will ask the court to hear ours first, since it contests the court’s power to make any orders on what Patty has filed.
I am disgruntled that Karen will not even attend. She is not legally required to attend, but her presence would both give the court its first look at her and demonstrate that she cares. Karen’s excuse is that she doesn’t want to miss her work and wants to be able to take Dawn home from school. I almost never get to pick up my children from school. Also, I will bet good money that Patty will be there. Karen’s absence will only allow the court to conjure up the irresponsible character that Patty describes in her papers.
I dress as plainly and seriously as I can, in my charcoal gray suit, which will be too warm for today’s surprisingly warm November day, but I have no lightweight counterpart, and I want to match Stephen’s gravitas, even though his comes with gray hair and more years of experience. He will predictably wear also a red bowtie, his own old-fashioned trademark. I will wear simple pearls under my open white shirt.
I can hear Adam in the other room, verbally wrestling the boys to the breakfast table. He is on duty this morning, since I will be in court, and all three of them know the routine, know not to bother me before court. They can hear me tromping down the hall in my heels and they fall into a quiet mode as I come into the kitchen. No one wants to provoke me. I kiss Alex on the side of his head and tousle his short hair. He mumbles ‘hi, Mom’ between his gulps of cheerios. Andy, our picky eater, is removing the offending yellow fruit loops from his bowl before he pours milk over them, and he doesn’t even respond to my hand on his shoulder and kiss on the side of his head. Alex, my stalwart supporter, hugs me, whispers “formidable” into my ear appreciatively, and sits down with his dad and Andy. He heard his dad describe me this way and he has adopted the word as his own; he pronounces it perfectly though I doubt he knows what it means. I pull a glass from the cupboard and pour myself a glass of milk, all I will allow myself until after the hearing.
Adam is in shorts and a tee shirt, since he has no classes to teach today, but the two boys are spiffed. I admire them all with my eyes, a comfortable trio of guys chowing down together. I wish the boys a good day in school.
Traffic is worse than usual, but I have allowed extra time. I keep the radio off as my way of keeping my thoughts clear and focused. The air is unusually dense, and in a short while I see the source of the backup as a brush fire along the highway, fire trucks blocking the right lane. I get only a glance but note the fire is spreading away from the highway across a desiccated field of grass. I silently curse the careless smoker who likely caused this damage.
As I pull into a space in the courthouse parking lot, I sit for a moment and try to retrieve a clear head. I conjure Adam at the front of a law class, my epitome of a calm and clear authority on the law. It works. I know how he thinks and reasons, though how he keeps his calm under pressure still defies my comprehension.
Outside the courtroom, which is still locked, Stephen stands with an imperious-looking Patty. Though she wears loose curls in her pale brown hair and a feminine, appropriate dress, there is something rigid in her posture that implies to me someone accustomed to being in charge. I have won my private bet that Patty is here. Stephen catches my eye but nods slightly as though to warn me against approaching him now. He is explaining something to his client, who has her arms crossed in front of her.
I look at the calendar and see that we are set last. Of course, the judge sets the longest hearings for last on the calendar. In theory, that affords her more time for them, but in practice the toughest cases are sometimes accorded the least time, and we cannot keep the court into the lunch hour. I sit in the back of the courtroom where I can watch everyone else. The calendar call reveals a shorter calendar than first appears, two stipulations for continuances and one no-show.
Judge Bremmer is in good humor this morning, always a good sign. The first matter entails a child support calculation for two parents who dispute the level of the father’s income, and the judge jokes about how the designers of the statewide child support calculations thought the process would be simpler with their formula. The judge resolves it expeditiously and moves onto the second and then the third matter, after which I zone out of her calendar and into my own arguments.
At the morning break, I approach Stephen to ask if he will consent that my matter be heard before his since mine is pivotal to the future of the lawsuit, but he shakes his head solemnly and says only, “I cannot agree to your going out of order.” I wonder if he would have taken the same stance if Patty were not standing at his side.
I renew my request when our case is called, but our judge comes to the same conclusion, though assuring me that she will not rule on visitation until she rules on my pivotal request, thus signaling that she quite well understands that if she grants my request, there is no power to grant visitation. Stephen is eloquent as always, describing the close connection Patty has had to Dawn and how, with only one exception, contact has been severed between them, which is not in ‘little Dawn’s’ best interest. I explain that with the termination of the guardianship and no visitation orders in that matter – none requested, none granted – the decision to allow visitation rests with my client, and that she permitted a mediated visit but that Patty had terminated mediation. Judge Bremmer states she will take that request under submission pending decision on my request. As I stand to make my argument, she asks me how I believe the guardianship disposes of the parentage question. I explain that if Patty believed at the outset she was a second parent, she could have brought a parentage action rather than a guardianship action, which determines only the -- usually temporary -- rights to care for a child. Likewise, she could have but did not request visitation at the hearing to terminate the guardianship. That hearing resolved my client’s capacity as a parent, and this new action – to interject a second parent into a nearly-five-year-old’s life – is not only an impermissible ‘second bite at the apple’ but is also ill-conceived and inherently confusing to the child, who knows Karen is her mother and never thought she had two mothers.
“But aren’t those factual determinations for the trial court to make?” the judge interjects.
“Exactly!” Stephen interjects as I pause, recognizing I have already lost. Stephen proceeds to inform the court that it would have been cruel and abusive for Patty to have sought parentage when Karen was “incompetent” in the hospital and that the grounds for establishing parentage arose partly in the nearly two years that Dawn lived with Patty and her family ‘as another daughter’.
I return to the finality of the guardianship termination but recognize the probable futility of this effort. Even though the judge announces she will take the matter under submission because she wants to read the cases cited and consider the legal issues, I can predict her decision. I am now relieved that Karen was not present to have to hear herself termed incompetent.