Former probate court judge reminisces

By Edward M. Ginsburg The Daily Record Newswire Many people who ask what it was like being a probate and family court judge for 25 years wonder how an intelligent person could deal with the minutia of dividing pots and pans between adults who, at times, act like children. Such questions are indicative of an implied, or even expressed, assumption that the Probate Court is an inferior court in that there is little, if any, intellectual challenge. Few people outside the probate court know that, in dividing assets between wealthy parties, a judge is called on to analyze and value a wide variety of businesses in areas including finance, investments, construction, service and high-tech. Assessing sophisticated expert testimony is all part of the judge's job. To me, the challenge and reward was the direct impact that my decisions had on the lives of so many people. The context in which the issues arose reflected the ever changing nature of society and the efforts of the law to keep up with those changes. Issues such as advances in medicine that keep people alive long beyond historic norms, or the potential ramification of how various forms of artificial reproduction technology play out in practice, present new challenges for probate and family court judges as they are asked to develop the law to meet unforeseen circumstances. In taking the bench every morning, particularly in a crowded motion session, I never could be fully prepared for what might come before me or how I might react. For example, a couple appeared before me over temporary visitation in which the father was seeking a traditional schedule of every other weekend and one night during the week. The complication was that, after a 28-year marriage with four children, the father had undergone a sex-change operation. The mother's attorney explained to me what had occurred the weekend before when the father took the 13-year-old son and 8-year-old daughter to a crowded McDonald's for lunch. The boy went to the bathroom, which was on the other side of the restaurant from where the three were sitting. When the boy came out of the bathroom, he waved to his father and said, "Daddy, I'm over here." When the other patrons looked up in bewilderment, the father suggested to the boy that, when in public, he be referred to as "Mommy No. 2." The mother sought to terminate visitation. Having not been forewarned about the case, I recalled the admonition to doctors to "above all, do no harm." I appointed an attorney for the children and ordered the parties to go to the chief of child psychology at a nearby hospital who agreed, as the result of an urgent phone call from my clerk, to serve as a guardian ad litem. Without taking any action, I continued the matter for two weeks, at which time parties, counsel and the GAL were to appear. On the return date, counsel for the children and the GAL presented a joint recommendation: The 13-year-old, going through puberty, was having difficulty coping with the situation and should not be forced to go with his father. The 8-year-old, who enjoyed her time with her father, should have regular visitation. When she approached puberty, the matter would be revisited to address her needs. The matter never came back before me. Several years later, one of the lawyers told me that the father moved to Vermont and established a new career as an engineer. The children went on to have a very good relationship with their dad, even better than the one with their mother. I also recall a Saturday night when I was called to a hospital because a 21-year-old Jehovah's Witness had refused to accept a blood transfusion, lapsed into unconsciousness and, according to the doctors, was about to die. At the hearing held at the hospital that night, the single woman's family and friends stated clearly that if the patient were conscious, she would refuse the transfusion. Faced with the choice of following the law, which indicated that I should not order the transfusion, and the doctor's statements that I would be responsible for her death if I did not, I opted to follow the law. Somehow the patient miraculously recovered and went home, but several days later the doctors came to see me in my lobby to assure me that next time I would not be so "lucky" and she would die. I could only note that we each had to act within the bounds of our professions, which in this case were clearly in conflict. The suffering of ordinary people who appear before a Probate Court judge on a daily basis as they attempt to deal with the vicissitudes of life manifests in conflicts over children and property that are not to be taken lightly. The real issues often run much deeper than arguing over pots and pans, and a good judge can mitigate if not alleviate the suffering. I don't mean to suggest that there are no light moments in the daily operation of the court's business. I remember the 75-year-old couple who, after 50 years of marriage, sought an uncontested divorce. When I inquired who would take care of them if one got sick, the wife replied that she would care for the husband if he were ill, but she could no longer live with him because he made too much noise. After reviewing the agreement, which I accepted as fair and reasonable, I asked the parties if they had anything else to say. The man said nothing. The wife wondered aloud why she did not get a divorce 25 years ago. When I shrugged my shoulders, they began to walk toward the back of the courtroom, hand in hand. I looked up and asked them what they were going to do now. The wife looked into her ex-husband's eyes and told me that he had been a good boy and she was going to take him out for lunch. In conclusion, to those who ask what it was really like sitting on a probate and family court bench for a quarter of a century, I answer that it was challenging, interesting and rewarding. I will always be grateful to have had the opportunity to serve and would encourage a new generation of lawyers to consider applying for a judgeship on the court as the next step in their professional lives. ---------- Retired Massachusetts Probate & Family Court Judge Edward M. Ginsburg heads Senior Partners for Justice, a program that provides the indigent with lawyers. He can be contacted at SeniorLawyers@aol.com. Published: Mon, Jun 6, 2011