June 2011 - A New Kind of Custody Battle

by Justice William W. Bedsworth

Years ago, my life was changed by a cartoon I clipped out of the Los Angeles Times. It showed a man attempting to open a can of tomato soup by banging it repeatedly against the side of his kitchen counter. The caption read, “The less you appear to be able to do, the less you will be asked to do.”

That maxim has guided both my personal and professional lives. I have, in the forty-plus years of my adulthood so clearly established my limited abilities that I am rarely asked to do anything outside the closely circumscribed domain of my tiny skill set.

It’s worked out brilliantly in my personal life. My wife rarely asks me to tackle household chores. For reasons known only to her and God, she truly loves me and is willing to paint, fix the toilet, and change light bulbs herself, rather than see my life snuffed out by asphyxiation, drowning, or electrocution.

She sometimes goes so far as to keep from me the existence of household repair issues. She’s terrified by the prospect of me putting my hand into the garbage disposal. So I don’t even know it’s on the fritz until the repairman shows up.(1)

And it’s been equally effective professionally.

It’s been my experience that judges break down into two groups. The majority are adventuresome and relish challenge. Those are the ones who fight for spots on the complex litigation panel and say things like, “CEQA?! Jeez, I’ve never seen a CEQA case; I’d LOVE to do that!”

Then there is the smaller group made up of people like me. I used to go to each new presiding judge and say, “Look, I only know how to do three things. You give me an assignment that involves one or more of those three things, we’ll both be happy campers. You give me something new to tackle and you’ll spend half your life responding to complaints from the local bar.”

For that reason, I did only a year of civil work in the trial court. And that was a civil overflow court, in which my role was to try cases, five days a week, when the assigned judge—who had nursed them through years of law and motion, discovery disputes, special masters, ulcers, migraines, and acute colitis—was unavailable. The first medical negligence case I ever saw, I was the judge on.

Again, it worked brilliantly. I learned a little civil(2) and the presiding judge got to tell counsel, “Well, if you’re sure this three month construction defect case actually has to be tried, I have a career prosecutor with nine years experience in the criminal courts available.”

The response was almost always, “Uh . . . Your Honor . . . could we have a few minutes? I think we might be able to settle this.” I was a one-man court backlog incinerator.

Because my skills were so . . . specialized . . . I was never called upon to do much family law. Turns out all you have to do is deny one divorce and they never ask you to do another one.

I always felt bad about that. Family law has somehow picked up a bad rep. Most judges resist that assignment.

I would have loved to do it, but somehow it leaked out that I was completely unable to comprehend the tax codes or deal with financial issues more complex than divvying up the lunch tab. I have no idea how people found out about my weaknesses in that regard. I was just standing there banging the soup can against the counter and somehow they figured it out.

So I was never asked. Pity. I’ve always thought of divorce as the lesser of two evils. Yes, it’s true that 50% of all marriages end in divorce. But the other half end in DEATH. When you think about it that way, it’s pretty clear the divorced ones are the lucky ones.

And they usually get to take home such lovely parting gifts. Houses, cars, lamps, ashtrays . . . children.

Ah yes, children. That would have been the hard part for me. I love children. I barely even like adults.

And the adults you see in divorce court are usually going out of their way to be unlikable. I’m afraid with my background, I would have found myself sentencing most of those people instead of divorcing them.(3)

And then who would I have given the children to? “Well, Mr. Gazorninplat, I was going to award you custody, but now that I’ve ordered you incarcerated, I’m afraid I’ll have to give the poor little beggars to your spectacularly obnoxious spouse. Unless, of course, I can find a family of wolves willing to take them in.”(4)

The whole custody thing seems to come up in an unusual context in Chinese courts. According to the Austrian Times,(5) “A Chinese divorce court is being asked to rule on which selfish parent should get custody of their only child—after BOTH of them refused to take him.”

Yeah, I know. How does the Austrian Times, whose masthead proclaims, “We’ve got Austria covered,” report authoritatively on Chinese divorce courts?

I was skeptical, too—although we’ve all been where those Chinese litigants were. Anyone who’s been a parent has had days when they would have refused custody.

For me, most of those days involved high school, but my son did come down with an earache the night before my first felony trial. I think I might have been willing to default on a custody dispute that night. By 4 a.m., I probably would have been willing to give custody to anyone who happened to drive by.

But it’s still hard for me to imagine cases where both parents fight to avoid custody. And my research has turned up enough reports to convince me that not only does this happen in China, but the Austrian Times report about the Chinese courts’ remedy is apparently also true: They hold reverse auctions.

Honest. I’ve found several reports(6) of Chinese courts holding auctions in which recalcitrant parents bid how much it would be worth to them to stick the other parent with little Bundle of Joy Doe.

What an amazing day in court that must be:

“I’ll pay 10,000 yuan if she takes the kid.”

“I’ll go 12,000.”

“Twelve thousand, and I’ll give back the tv.”

“Twelve thousand and the car.”

“Fifteen thousand, the car, and the timeshare.”

“Me and the garbage disposal repairman bid eighteen thousand yuan and . . . oops, did I say that out loud?”

Are you kidding me? They auction off non-custody? Ouch!

I dunno. Maybe this sort of thing goes on in our own country more than I know. I can certainly imagine some custody negotiations that go beyond the stereotypical Wednesdays-and-alternate-weekends discussions.

“Okay, you get custody. Here’s the iguana food.”

“Yecch! I don’t want that slimy lizard!”

“Hey, he’s Bobby’s pet; you take Bobby, you take the iguana. And he’s not slimy. Reptiles aren’t slimy. If he gets slimy it’ll be good news for you; it’ll mean he’s dying.

And don’t forget, Suzy has softball practice Tuesdays and Thursdays and the tournament next weekend.”

“What, another tournament? I hate those. It’s like marching through the Gobi with warm bottled water and a folding chair. Is there some rule that tournaments have to be held in the hottest, dustiest, windiest venue available?”

“Hey, I don’t do the scheduling. Welcome to El Centro, Babe. Sure hope the team plays well all three days.”

“Okay, I’ve changed my mind; you can have custody. Let me get Suzy’s clarinet for you.”

“Oh for crying out loud, isn’t she ready to give that up yet? She’s broken every eardrum within three hundred yards. Besides, the screeching scares the iguana, and the cost of replacement reeds will bankrupt me before your lawyer gets his chance.”

“Hey, it was your mother who insisted she have music lessons. It was your father who loved Benny Goodman and thought . . . Omigod, I just realized: I don’t have to spend Fourth of July with your family this year. Hallelujiah! God bless America!”

“Okay, the clarinet’s a deal-breaker. Also a mental health hazard. You take the kids and the clarinet; I’ll take the iguana.”

“What about Fourth of July?”

I imagine something like this—though usually inchoate and largely unexpressed—goes on in a lot of divorces. That’s probably as true here as it is in China—except of course that the Chinese are spared El Centro.

But bidding on who gets stuck with Junior? An actual court-sanctioned auction? Loser takes all?

That’s a little cold for me. I know cultural differences have to be taken into account, but I’ve never known a kid I’d wish that on.(7)

I don’t think people who participate in a reverse custody auction should be allowed to have pets, much less children. I wouldn’t let them have the iguana.(8) If I’d been hearing their divorce, I would have sentenced them both to mid-term state prison.

Pity I never got that family law assignment. I could have done for the divorce rate what I did for our civil backlog.


(1) At least she tells me that’s who he is. Maybe I should check with the pool boy about this.
(2) You need not quote Alexander Pope to me. I am well aware of his adjuration that, “A little learning is a dangerous thing; drink deep” or not at all.
(3) Can you imagine having to explain to your cell mate that you were in for excessive OSC’s? Or refusing to hand over the photograph album?
(4) Which would probably not be a bad result, considering the fact that most family law litigants act like they were raised by wolves.
(5) It really is getting harder and harder to fill this space. If it weren’t for my wife and the garbage disposal repair guy tracking down sources like this, I have no idea how I’d do it.
(6) Well, actually my wife found the reports. Apparently the electrician brought them over.
(7) Okay, maybe Bobby Buelna the second time he beat me up, but he’s the only one.
(8) Madame Clerk, please call Social Services and tell them we have an iguana to be picked up.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.