A Friend-of-the-Court Argument About Custody Cases

I conceived of this column as a straight-ahead defense of local Judge Nancy Wieben Stock, and that’s still where it will end up, but connecting the dots was more problematic than expected.

Wieben Stock is a former federal prosecutor and now an Orange County Superior Court judge who recently granted O.J. Simpson custody of his two young children. That decision, and the coincidental timing of another recent incident in which a woman killed her two youngsters five years after Wieben Stock granted her custody, has people calling for the judge’s head. They see a pattern of a judge who isn’t looking out for children’s well-being and, as a result, are mounting a recall effort.

My gut reaction was to recall the recallers. Anyone interested in a courageous judiciary ought to feel creepy about people threatening recalls of judges who make isolated unpopular decisions (yes, even two decisions), especially if those decisions have a solid legal foundation. I’m not saying courage had anything to do with Wieben Stock’s decisions, but a number of lawyers and judges have said both decisions were legally sound.

These “revenge recalls” leave me so cold that I instinctively side with the person being targeted. The other local example that springs to mind involved the judge who gave what were considered lenient sentences to teenagers involved in the paint-roller death of young Steve Woods in San Clemente in 1993. The judge would not bow to strong public pressure to throw the book at the defendants, and he was threatened with recall. The effort eventually was dropped.

So, right from the start, I was in Wieben Stock’s camp. Then, while marshaling my mental forces in her behalf, I kept running into troubling questions.

What follows represents my thought process. Unfortunately, it succeeded mainly in giving me a headache:

Determining custody obviously has momentous implications for children. That puts a huge responsibility on the judge deciding the case, and, it seems to me, requires some level of accountability for the judgments that are made.

I’m assuming that any judge can read the law. What I hope for in cases like these are judges who are both legally solid and possessed of enough life’s experience to warrant holding such awesome responsibilities.

In the first case cited by Wieben Stock’s opponents, the mother to whom she awarded joint custody killed the children, albeit five years after the judge’s ruling. I suspect most fair-minded people would say that’s a long enough gap to exempt the judge from responsibility, and on balance I do too, but I concede the point that the children’s deaths still represent a bottom-line argument.

In the Simpson case, most of us are aware of the implications of the custody debate, if not the finer points of the law. Legal minds say the judge followed California law in granting Simpson custody, but I’m wondering about the ratio between interpreting statutes and gauging real-life potentialities.

That is, we have a father whom a civil-trial jury found responsible for killing two people, including the children’s mother. The not-guilty verdict in Simpson’s criminal trial doesn’t mean someone other than him committed the murders, a point that even some of the jurors who acquitted him conceded.

Beyond that, Simpson was by his own admission suicidal as long as five days after the killings, as depicted in the infamous Bronco chase. Either he was bluffing for effect, or he was emotionally unstable at a time when his children needed a stronger presence from him. In either event, what does that suggest about his prospects for solo parenting?

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Given the immense power judges have in awarding custody, how much of all those factors could the judge consider? Even if she interpreted the law with uncommon brilliance, she had another factor to consider--the children’s day-to-day lives with Simpson. And the bottom-line reality of that means the children may well be living with a murderer, a wife-beater and a former suicide candidate.

It’s more complicated than this, I know. If we respect our system, then we must acknowledge that Simpson was found not guilty and that, legally, he didn’t kill anyone. Then, of course, you hop to the civil trial and that complicates his standing even more.

This could go round and round, which is how I got a headache, but custody battles must ultimately be about the children’s lives. The courts have tremendous power to affect those lives, and it seems that judges should call upon everything within their available grasp to protect the children.

Yes, I care about applying the statutes, but I care more about judges blending law and common sense when making such momentous decisions.

I still don’t think Wieben Stock’s rulings justify a recall. I don’t see any hint of a judge who is cavalier about children’s safety. I guess I’d just like to see decisions that are grounded not exclusively in the pages of lawbooks but as much in the heart and mind of good judges using their best instincts.

Dana Parsons’ column appears Wednesday, Friday and Sunday. Readers may reach Parsons by writing to him at The Times Orange County Edition, 1375 Sunflower Ave., Costa Mesa, CA 92626, or calling (714) 966-7821.