A Judge’s Guide

MANAGING THE CHILD CUSTODY CASE
their listening skills to more effectively communicate with those who appear
before them and to ultimately reach the fairest decision.
Mediation teaches us to listen, since that is the fastest way to resolve
conflict. If you don’t know what the issue is, you may solve the
wrong problem. A courtroom complicates the task by providing an
intimidating setting for discussion of very personal issues. Consider
a defendant’s perspective. She is facing what may be a major issue in
her life: a criminal charge, a divorce, or a child custody matter. Her
partner in this conversation is an authority figure clad in a black robe
sitting behind an intimidating bench above her. There are bailiffs,
marshals, and neighbors sitting and standing in the all-too-public
room. The black-robed figure, abruptly banging his desk with a
wooden hammer, is asking her personal questions and asking her to
make life-changing decisions. Is it any wonder she is not
communicating effectively? 12
Judge McNaughton adds that judges should learn to listen in a manner that will
result in better understanding. 13 She offers some suggestions on how to be
“active” listeners:
Resist the impulse to control the pace or content of comments
made in the formal courtroom setting.
Resist the urge to interpret what parties say as a challenge to your
authority.
Ask for clarification of any remarks made that you are not sure you
understand.
Neutrally (nonjudgmentally) rephrase parties’ statements to test and
demonstrate your understanding.
Give the parties an opportunity to talk about their underlying concerns
and to put themselves in the other party’s shoes. 14
Other judges offer recommendations for managing hostile parties. Judge Isabella
Grant, a retired judge experienced in domestic relations cases, emphasizes the
importance of trying to get parties to understand how their hostility hurts their
children and how they are going to have to cooperate to help their children
develop. 15 From her extensive work presiding over child custody cases, Judge
Kathleen O’Ferrall Friedman, a retired judge in Baltimore, also notes how parental
hostility is extremely harmful to children and should not be ignored. She relates
how she heard one boy wish that his parents loved him as much as they hated
7