CHAPTER 19 - THE STIPULATION
When trial day finally rolled around, half the Homestead Jewish Center congregation was there to make sure that nobody would keep their little Bobby from them any longer.
In Maria’s corner were two strangers. One turned out to be her new husband. The other was Dr. Gray. Schmidt was there (without Branigan) and Rico Gonzales was present, too, (lacking the guts to look directly at me). I was glad we were ready for the kid.
One important witness was not present . . . Bobby. Maria had decided to defy the subpoena. She had left the boy home with a baby-sitter. Also missing were O’Malley’s recommendations. Maria had only let him in for an interview three days before the trial, not enough time for the social worker to get the report done. Nor had Bennett been able to make any progress with the Archdiocese attorneys.
I was so angry about the Church stonewalling that I insisted Bennett file the $6,000,000 suit posthaste. Bennett, however, remained cool to the idea. “There’s plenty of time for that,” he calmly said. “Wait till after we get a ruling here, and the Judge has a chance to sign the order, assuming it favors us.”
When it became obvious that Maria wouldn’t deliver Bobby, Bennett’s associate, Steve Busker, phoned the process server. While Busker was gone, Dixon summoned the principle parties with a warning that he could only devote two and a half hours to the case that day, far less than planned for by my attorneys. I was furious but tried not to show it. There was no way we would be able to get even half our witnesses in. “This is what I had to wait five months for?" I asked Bennett.
We’ll start with Dr. Goldberg as planned. I hope you managed to sway him about the extended trial residency,” the attorney said.
After the preliminaries were over, Lapidus was allowed to address the Court first.
“Your Honor, if I may start by addressing a problem we had in preparing for trial. One of our key witnesses, the mohel, Cantor Lipson, is out of the country in Europe on vacation. I only found out about his intentions to depart on the day of his trip. At that time I phoned Mr. Schmidt’s office to notify him of a deposition that I took the same day. Mr. Schmidt was unavailable, being at sea on his boat. Please note that my opponent has also listed Cantor Lipson as a witness on his pretrial catalog. We have preserved the Cantor’s testimony which is highly critical to our case, and we ask that you admit into evidence said deposition now.”
“Seems to me that Mr. Schmidt is entitled to enjoy his boat from time to time.
Your request to include the deposition is denied, Mr. Lapidus,” the general master said.
“I understand, Your Honor, but I’d like to include the deposition in the court file on an unofficial basis.” Bennett then handed the document over to Royce who accepted it.
“The second item I would like to address concerns a subpoena that I had delivered to Mrs. Estavan. The order called for her to deliver the child here today. Bobby was lawfully served with his mother in the presence of two Key Biscayne police officers who included said serving in a police report that they filed. We haven’t seen the child here today, and we wish to ask Mr. Schmidt if his client is not now in contempt of court.”
“Your Honor, this is a vicious lie. I can state categorically that my client was never served with a subpoena for Bobby.”
Bennett was astounded by Schmidt’s perversion of the truth. Apparently his opponent chose to take advantage of the fact that the trial would probably be too short to have his position successfully challenged. “Your Honor,” Lapidus said, “I’m surprised to see Mr. Schmidt mislead the court about something so easy to prove. My associate is now attempting to reach the process server. He should have him here within a half hour.”
“I have no objections to your attempts to bring in the server, but I must inform you that I won’t promise to put a seven-year-old on the stand to testify against his mother. Call in your first witness,” Dixon said.
Dr. Goldberg was sworn in, stated his credentials, then discussed the tests he administered and finally summed up the history of the dispute.
“ Roffman,” Goldberg said, “is a quite active Conservative Jew. He claims that his ex-wife promised to raise Bobby as a Jew at the boy’s Brith Milah, or ritual circumcision. Mrs. Estavan, on the other hand, has recently become active in the Catholic religion, and she endeavored to convert Bobby to her faith by baptizing him and enrolling him in catechism class, an activity that she has removed him from recently. Both parents are subjecting the child to great pressures to adopt their respective faiths.”
“Does the child have any particular religious preference of his own?” Bennett asked.
“Bobby is just seven, and while I question the depth of his theological understanding, I must say that he does identify very strongly with the Jewish faith,” Goldberg said.
“What is the evidence for the strength of his identification with Judaism?” the attorney asked.
“He refuses to eat non-kosher food in his mother’s home. It was apparent both through his testimony and his mother’s that he’d rather be beaten than forced into violating kosher dietary laws. From what I’ve been able to determine in speaking with his catechism teacher, Bobby was highly verbal in class there about both his Jewish beliefs and his rejection of Jesus. The instructor informed me that she and her church advised Mrs. Estavan it was in the child’s best interests that he be withdrawn from her class. Mrs. Estavan complied with that advice.”
“Do you think that it’s healthy for Bobby to be exposed to both religions?” Lapidus asked.
“Under normal or average circumstances, I’d see no problem with such a solution. But this child is so strongly identified with Jewish beliefs as to render a Catholic exposure harmful to his well being,” the doctor said.
Bennett then pointed out that, in accordance with Maria’s answers to his interrogatories, it was the mother’s intention to send her son to a full-time Catholic parochial school if she won the case. Goldberg saw her plan as disastrous, pointing out that a boy so vocal about his beliefs would constantly invite personal physical assault in such a situation.
There was some discussion about Bobby’s high I.Q., but Bennett couldn’t quite succeed in leading the doctor to conclude that Bobby really understood all the theology he pretended to know.
The pictures of Maria drawn by our son were more powerful than any direct quotations that were read to the Court. The psychologist testified that Bobby saw his mother in a very negative way. Goldberg seemed to place more emphasis on the pictures than on the other projective testing methods that had given him such concern in his earlier report. He now realized Bobby did have the intelligence to know that while he had a problem with his own mother, not all women were like her. It was less than fair to judge his attitude toward Maria on the basis of the boy’s refusal to generalize about all women.
“Based on your observations,” Bennett asked, “Were you able to reach any conclusion about placing Bobby with one of his parents?”
“I was. I believe that on a temporary basis, primary residency should be with the father for a trial period of six months, and that all parties concerned should be required to undergo family counseling for the duration of the recommended order.”
Bennett then turned the witness over to Schmidt.
“Dr. Goldberg, the lawyer bellowed, “In your original report you said that you would recommend a custody or residency switch of just a summer. Have you changed your mind, and if so, why?”
“I have altered my opinion. Mr. Roffman convinced me that a summer trial period was too short, being equal to what he was accustomed to having over the past few years. Too short a trial exchange would not encourage the mother to participate in therapy or counseling in any kind of a meaningful way.”
“I noticed,” Schmidt said, “that you have a copy of Dr. Elenewski’s first evaluation in your file. How did you come to possess it?”
“Mr. Roffman gave it to me,” the doctor admitted. He then went on to state that he had been Elenewski’s former associate.
“How much did Dr. Elenewski’s old report influence your decision?” Schmidt asked.
“Very little. I formed my opinion largely on the basis of my own research; however, it should be stated that I asked both parties to produce any data that they thought might be relevant. Mr. Roffman also supplied me with the social worker’s report from the past custody battle.”
Schmidt wanted to know what both reports recommended. The doctor stated that the two were in agreement about placement of the child with his father.
“Let the record indicate,” Schmidt argued, “that Dr. Goldberg did not form his opinion until he had first reviewed these prejudicial reports. Tell me, Doctor, who took Bobby to your office?”
“On both occasions it was the father who brought him in,” Goldberg answered.
“Don’t you think that Mr. Roffman could have filled the boy’s head with all sorts of thoughts against his mother just before you saw him?” the lawyer asked.
“It’s possible, though I saw no evidence of any prep work being done.”
“Could Mr. Roffman hear or see his son while you were interviewing him?” Schmidt asked.
The psychologist assured the Court that the testing occurred in an isolated setting and that my presence in the waiting room was not a factor. He pointed out that Dr. Elenewski had obtained similar results four years before and that it was the mother who had then brought the boy in.
Goldberg’s testimony went on for nearly two hours. By the time he had finished, Busker had been successful in summoning the process server. Lapidus informed the general master, but Dixon was more interested in emptying his bladder than in hearing about Maria’s contempt of court. He declared a five-minute recess and promised to rule on the next witness when he got back.
Bennett was pleased by the psychologist’s testimony, but was almost as disturbed as I was about the time left, now a mere thirty minutes.
After the break, Dixon announced that he couldn’t afford to waste time by seeing the process server. Instead, he wanted to hear from Schmidt’s prime witness, who turned out to be Dr. Gray.
The hired gun was so highly effeminate that Busker soon found himself unable to control his laughter. “Is his name Dr. Gray or Dr. Gay?” I also mused just loud enough to be heard by all.
Gray puckered up his lips and gave me a dirty look. He then began to recite his credentials. They included experience testifying (for a fee) in over 500 custody cases throughout his career. The doctor had spent four hours testing Bobby and several hours listening to Maria’s side of the story.
“Why did Mrs. Estavan approach you?” Schmidt asked.
“The Mrs. related to me a great concern over how it was that Mr. Roffman was poisoning the boy’s mind against her. She said that the father was teaching him to hate her, her family and Jesus.”
“Did you discuss religion or question Bobby about it at all?” the attorney asked.
“Why should I? The boy’s too young to be burdened with such matters,” the doctor stated while noticeably batting his eyelashes. By now Bennett was starting to giggle, and it was easy to see that his opponent was plainly embarrassed by the demeanor of the witness. There was a smile coming over Dixon’s face as well. As Schmidt pushed on, Bennett and I began to pay as much attention to the general master’s reaction as to the psychologist’s responses.
“Dr. Goldberg claims that Bobby saw his mother as the embodiment of evil while seeing his father as the essence of good. Do your findings agree with his?”
Gray licked the top of his lip with his tongue in a nearly obscene fashion, and Lapidus nearly fell onto the floor. Busker was in stitches, too, and the general master had to caution him to control himself lest he be thrown out of the hearing.
“No,” the doctor proclaimed, “Not at all. I found that Bobby loves both parents equally, though he does identify with Daddy a bit more than with Mommy at this age, something totally within the norm for a six-year-old male.” The man seemed to stress the last word with a certain sexual relish.
“Do you have any pictures that Bobby drew of his father or mother?” Schmidt inquired.
“Not with me, but they were all very nice drawings. As I said, he loves both parents.”
“Roffman and Dr. Goldberg are both opposed to exposing Bobby to Catholicism as well as Judaism. Do you anticipate any problems from such a dual exposure?” Schmidt asked.
“I think both parents should downplay the religion. Let the boy choose. But I don’t see anything wrong or harmful about exposing the boy to our Lord. I think that Mr. Roffman has been behaving totally unreasonably. The child has a Catholic mother. Why shouldn’t she have as much right as he does to teach about how to worship God?” Gray answered.
Based on your evaluations, were you able to reach a recommendation concerning custody?” Schmidt wanted to know.
Gray was angry because of my apparent derision of him. The doctor’s report initially blasted me, but made no final recommendation. Now that he had seen me, he felt compelled to do me in.
“I see no strong reasons to switch custody at this time. I do think that the parents should participate in family therapy of some kind,” Gray said.
“Thank you. Your witness, Mr. Lapidus,” Schmidt said with relief.
“I notice,” Bennett began, “that you have a copy of the Miami Herald clipping about this fight in your file. Who gave it to you?”
“My secretary,” Gray responded.
“You said that you interviewed the child and his mother. What about the father?” Bennett asked.
“I didn’t speak to him. Why should I?”
“Did Mr. Roffman ever call your office to try to reach you?” Bennett inquired.
“Yes,” Gray admitted. “But I didn’t have time to talk to him. I’m a busy man.”
“When did Mrs. Estavan bring Bobby in to see you?” Bennett asked.
“Around the end of March or the beginning of April. I can’t remember when,” Gray said.
At this point Dixon declared that Dr. Gray had more than enough time to speak with me. It was obvious from his tone of voice that the general master lent no credence to anything the psychologist had to say from then on.
“Did Bobby tell you about his mother hitting him?” Bennett asked.
“Gray admitted a number of beating incidents related by the boy, all of which he chose to leave out of his report. “His mother hits him,” the doctor said, “because he’s a very naughty boy. He won’t eat the food in her house.”
“Do you know what the word Kosher means?" Bennett inquired.
“No,” Gray said, “I have no idea.”
“Do you know anything about the Jewish religion?” Bennett asked again.
“I don’t know what Jews believe in and I don’t care either,” Gray admitted.
By now Dixon was becoming angry. “I don’t believe you didn’t know the boy was being hit for religious reasons. If you knew he wasn’t happy with the food in his mother’s home, you had a responsibility to point that out in your report. Why didn’t you?” the general master asked.
“I didn’t think it was important. Lots of kids don’t like the food they’re offered. Look at how many youngsters don’t like spinach or liver!”
I asked Bennett to get rid of Gray then, but my lawyer was certain that the longer the psychologist testified, the more he would harm Schmidt’s case.
Bennett managed to get Gray to concede that he had formed his sole opinion of me through the Miami Herald article in which Bobby had called Jesus a false prophet. As Bennett’s questions grew more and more hostile, Gray’s support of Maria became ever stronger.
“Religious differences are no reason to switch custody,” the doctor asserted.
“Even when a child is religiously opposed to eating the food that his mother is forcing on him in contradiction to the child’s faith?” Dixon asked.
“That’s right. Ham or bacon won’t hurt the boy. If he wants to be a Jew when he grows up, he can always be one then. In the meantime, he needs to learn respect for his mother. I don’t think religion is ever worth fighting about,” Gray contended.
“You know,” Dixon stated, “Saint Paul said No food is unclean unless the one who eats it thinks it is, and then it is unclean for that person. As for religion not being worth fighting about, unfortunately when we look around the world, that doesn’t seem to be the general consensus of humanity. Men have always gone to war over religious differences, and these pa consensus of humanity. Men have always gone to war over religious differences, and these parents are at it again here with this little boy serving as the battlefield for the latest clash in a 2000 year feud. I don’t believe religious differences can be anymore overlooked here today than they can be in the Middle East or Ireland. You’re dismissed, Mr. Gray. I believe I’ve heard enough and read enough to get the picture. Gentlemen, if your clients are willing to stipulate to a decision based upon the testimony of the two psychologists who have appeared today, I’ll give you a judgment in about ten days. We’ll take another five-minute break now. If you want to continue the trial, it won’t be until September at the earliest that I can hear more testimony.”
In the waiting room I broke the news to my supporters. It looked promising, but I didn’t like the idea of waiting ten days.
“Be patient,” Bennett advised. “These guys don’t like to look a mother in the face when they rip a child from her. Besides, he’s probably got to decide on what visitation to order. We’ve given him a mountain of paperwork to digest, too. The man needs time. Have faith. From everything I saw in there, we’ve got him in our pocket.”
“We’re waiving a lot more witnesses than they are. All they have left is the Sabbatai Sevi thing, and that’s an idiotic waste of time that we’re ready for. You’re the lawyer, Bennett. If you think we’ve won, I’ll gamble you’re right,” I said as we returned to the hearing.
Maria and I agreed to the master’s stipulation. Dixon wanted to know what visitation each would agree to give the other. Both of us tried to seem generous. It was a futile exercise, however, for the master knew what he would have to order anyway.
I went on summer active duty with the Coast Guard Reserve the next day. I tried to concentrate on my new job, but it wasn’t easy as each day seemed like an eternity until the verdict was in.