CHAPTER 21 - SETBACKS
Nothing worthwhile in life is ever easy. My joy lasted all the way until the next morning when I received a call from my attorney. Bennett told me that Schmidt had called for an emergency hearing before Judge Hickey to protest the heavy-handed way I had removed my child from his mother’s home. More, he was claiming that I had no right to take the boy before the Exceptions were filed. In fact, Bennett pointed out, the order said (in small print) “subject to timely exceptions.” The lawyer still hadn’t explained the meaning of the phrase to me, and the police hadn’t understood its significance either in aiding me to take my son. By this time, Schmidt had indeed filed exceptions to the order, thirty-five in all. He had raised constitutional questions of the separation of Church and State, and it was now possible that, short of Divine intervention, this case might head for the Supreme Court.
All the key parties had to appear before the judge the next day. I was still on summer active duty with the Coast Guard and was serving at the Federal Building across the street from the County Courthouse. I took Bobby to work with me that morning and prayed that I wouldn’t have to hand my son back after two short days of possession. Bobby and I were highly distraught over the prospect of another forced separation. During the hearing, I left my boy (dressed in a miniature Coast Guard uniform) with my boss, Rosa Lee Boatright, an understanding woman who had once herself been through the courts in a fight for custody of a child.
Outside the judge’s chambers the opposing parties were confined to a small hallway. I felt like punching out everybody on the other side, especially Ricardo who was financing the drive to steal my son again. I couldn’t understand why any man would want to fight so hard to get custody of a kid that hated his guts. Still, I had to keep my cool, and I did.
We were all called in as Hickey sneered, “What’s this case about? Oh yea, I read about it in the paper. I think it’s disgraceful the way the two of you’ve been acting.”
“What’s disgraceful, Your Honor,” Schmidt replied, “Is the religious war that Mr. Roffman has subjected my client to. Now that man has managed to humiliate Mrs. Estavan by bringing half the police department down on her house as if she were some type of common criminal. They have illegally removed the minor child in question from her home. Your order, signed last Friday, states that it’s subject to timely exceptions. As Your Honor is well aware, I had ten days to file exceptions, and I did so yesterday, well within the prescribed time limit. In fact, I filed 35 exceptions to the general master’s report, which violates a number of times the concept of separation between Church and State.”
“Let me assure you, Your Honor,” Bennett interrupted, “that had I known of my client’s intention, I would have warned him against it.”
“Your Honor,” I broke in, “May I make a statement?” The judge nodded yes, and I continued, “That woman had, for the past several weeks, denied me of all visitation with my son. Not only that but . . .” I wanted to tell the judge about Maria’s previous contempt of court, of her pledge to disobey the judge’s order, but I never got the chance.
“But nothing!” Hickey bellowed. “Young man, you will hand over the boy to his mother forthright! And both of you will live in accordance with my original custody and visitation order dated January, 1981, until all appeals have been heard. When all is said and done, you may well gain primary residency, Mr. Roffman. But you must wait for the legal process to run its course!”
I asked my lawyer to do something about the visitation. General Master Dixon had extended my rights to include a Monday return of the boy after weekend stays, and Hickey’s old order would cut it again to Sunday night.
“The judge is in no mood to listen to us. Grin and bear it, we’ll get ‘em on the appeals hearing,” Bennett advised.
“How soon can you give Mr. Schmidt a hearing on his exceptions?” Bennett asked.
“In three weeks I have a number of openings. Here’s one: August 9th. I’ll give you an hour. In the interim I expect both parties to live fully by my original order. I don’t know how you got the police department to assist you in this insanity, but I warn you . . . don’t try something like that again.”
Schmidt tried to make an allegation about my falling behind in child-support payments ever since the general master’s report had been released, but Hickey would listen to none of it during the five-minute hearing.
As we left the judge’s chambers, Schmidt murmured to Bennett, “Christ, I wish they’d just put the kid on the stand already and let him say what he wants.” Any lawyer who’s put in the position of fighting for a cause he doesn’t believe in must eventually have second thoughts about his job. Schmidt was aware of how Bobby felt from all he had heard, and he was smart enough to know the impact that the judge’s new order would have on the lad, who was beginning to feel like a yo-yo. The remark caught me by surprise though, for I had viewed the attorney as a heartless neo-Nazi until that moment. If the man thinks that way, then how could he morally justify covering up for his client’s contempt of court? I thought.
The next few moments were the toughest of my life. I had to walk across the street and tell my son that he must go back to his mother and suffer reduced visitation until the ordeal was over. When Bobby heard about it, he broke down and started to cry. At that moment I had more hatred for his mother than I’d ever felt before. I tried to explain the reason for the quick return, but couldn’t. “Look, Bobby,” I said, “I don’t like it anymore than you do. But in this country, we live by laws and for today, not forever, the law says that you go back to your mother. Believe me, it doesn’t end here. There’s another hearing in just a few weeks. We’ll know more then. The burden of proof will be on your mother to show that the general master was wrong.”
Bobby stepped into his mother’s car as it started to rain. He told her how he felt about her. All she could say in return was, “Some day you’ll know how much I love you and you’ll thank me for what I’m doing.” At that moment a lightning bolt struck a tree next to their parked car. It was pouring by now and it seemed that even the heavens wept for the agony of Yacov Ben Itamar HaLevi.
“I’ll never thank you and I’ll never love you,” Bobby replied and added, “Look at the lightning. God is watching you and He knows you’re wrong.”
Wrong or not, she had him again that Wednesday. My next visitation period started five hours later, but it was a much different reunion than it had been two days before.
I spent the following days trying to raise more money to keep up with my escalating legal expenses. I had still been writing most of the pleadings myself, but was now paying three attorneys for advice that was getting expensive. To be sure, the Jewish attorneys didn’t charge me for all the work they were doing. They all wanted to see the kid freed, and Busker in particular had done a lot of work at no cost in the early stages of the battle. But it was worthwhile to retain the man who quickly discovered a highly pertinent case to refute some of Schmidt’s exceptions. In Vazquez vs. Vazquez, a 1983 Florida case, the two parents agreed to raise a child Catholic. They had him baptized into that faith, but when the mother moved out she started taking her son to a Baptist church. The father objected, saying that the kid was baptized Catholic in accordance with the original agreement. Although Mrs. Vazquez claimed that she had a right to expose him to her new faith, the judge said that the original agreement had priority over her recent interest, and ruled in favor of the father. If that original agreement was enforced by the Court, then precedence had been set to honor the value of the brith milah agreement, too.
A week before the next court date, the H.R.S. social worker filed his report with the court. It wasn’t the sort of news that I had been hoping for, for while its overall recommendations were ambiguous, its general tone was violently hostile towards me. Still, as Schmidt had stipulated to a decision by the general master based solely upon testimony of psychologists Goldberg and Gray, there was hope that the affect of the new report could be overcome.
On August 9th, we all filed back into the courtroom again so Schmidt could argue his 35 exceptions to the general master’s report. As the court reporter set up, Hickey looked out at me and sarcastically said, “You again! I remember trying this case years ago. You’re the fellow who ran off to Israel for a year and left his wife and child without any support! What are you shaking your head about?”
“Your Honor,” I answered, “Your memory is in error. I took a six-week vacation in Israel, not a year’s leave, some five months after my ex left me, taking the child and essentially denying me almost all visitation.”
“I knew it was something like that,” Hickey angrily replied. “I want everybody present to know that I have no intention of making any decision here based on religious matters. I didn’t consider religion when I made my original ruling, and I don’t care about it now. I think this whole thing is a disgrace, especially you, young man, putting a child Bobby’s age up on the pulpit to preach. I want both sides to understand that I will not receive any new testimony today. We are here to discuss law, and I want all sides to focus on that alone. Now, Mr. Schmidt, I believe that these exceptions are yours. You may begin.”
“I’ve cited a number of important cases in my brief, Your Honor,” Schmidt began, “and as you have undoubtedly read by now, there are a number of cases to show that the wishes of a child Bobby’s age do not have to be considered when awarding custody. The boy is barely beyond what is normally termed tender years, and he’s certainly not close to being twelve, the age when a child has the right, within reason, to specify to a court where he wishes to reside. More, the findings of the general master are a clear violation of the separation of Church and State. This order is insane! How would Your Honor like someone to come into your house and demand that you keep a kosher home? This order will produce the further alienation of the boy from his mom by demanding that he eat food that is different from what she would eat! On top of all this, when you originally awarded primary residency to the mother, you gave the father liberal visitation; but with this order, the mother goes from having primary residency down to having the child with her only 25 hours per week. Why should the mother be so restricted now? What’s more, there’s no provision here for holidays or summer visitation beyond one day per week. What you are doing with this order is to reward the father for alienating the boy from his mother. If the father has been so successful in turning the child against his mother with his current visitation, imagine how much more he will destroy the mother-son relationship when her time with the boy is reduced to one day per week! Then there’s the issue of what religion the boy should be. The attempt to admit testimony from the mohel in the form of a deposition was denied by General Master Dixon. There’s not one shred of evidence in admission with this Court to show that the mother ever promised to raise this boy in the Jewish faith. In fact, in Jewish law it’s the mother who determines the religion of the child, not the father. Indeed, that’s what Mr. Roffman told my client when they met.
“Your Honor, we’ve just received the report of the H.R.S. social worker on this case, and it fully reveals what type of man Mr. Roffman is. I quote: “This reporter has spent some 25 years interviewing children for the Dade County courts. In all that time, I cannot ever remember meeting a child so brainwashed as this one. The father must spend every waking moment with the child indoctrinating him as to his ideas about religion, women and marriage. The father has stated to this writer that this child is the only child there at the synagogue and consequently he is thrown in with adults. The child uses the Torah for his own benefit. He says Torah tells him that he cannot eat bacon and ham, but when asked by me if Torah says anything about honoring thy father and thy mother, the conversation was instantly changed to another subject. The sadness in this case is that the child’s viewpoint has been so distorted about what is right and what is wrong, what is a child’s responsibility and what is an adult’s responsibility, that if he does not get some therapy as quickly as possible there may be some long-range damage done to him. At this point whatever the father does is perfectly all right with Bobby, but anything the mother does is going to be wrong.
“These, Your Honor, are my strongest exceptions to the Order and Report of the General Master. The others are listed in my brief along with numerous relevant cases to show the error of the report from a legal viewpoint.” Schmidt then rested.
“Lapidus, how say you?” the judge asked.
“Well, as you have seen, Your Honor, we’ve found our own relevant cases, especially Vazquez vs. Vazquez, a 1983 Florida case that bears a great deal of similarity to this one. There the court found that the original agreement between parents that could be documented could not be overturned with the conversion of one of the parents to a new faith. Bobby Roffman was circumcised with a brith milah, and the court file from 1981 includes a copy of the circumcision certificate.”
“I don’t see what’s the big deal about the boy being circumcised. Lots of people are circumcised and it doesn’t prove anything,” the judge asserted.
“You don’t understand, Your Honor,” Bennett replied. “It is true that many Christian baby boys are now circumcised, but a brith milah is a religious ceremony, not a mere medical procedure. Bobby was circumcised by a member of the Jewish clergy, not by a doctor. And as for the social worker’s report, the bottom line states: The recommendation of the psychologist should be heeded! Well, the court-appointed psychologist plainly recommended that primary residency should be, on a trial basis, vested with the father!”
“I have your briefs, and I don’t think I need to hear anymore today. Mr. Schmidt, have you brought a transcript of the hearing before General Master Dixon for me to review?” Hickey asked.
“I have, Your Honor. Here it is.”
“I’m going on vacation tomorrow so I won’t get to this for some time. Mr. Roffman, I don’t want you calling my secretary and pestering her about my decision as you have in the past. I’ll give you my answer sometime in the future. Good day.”
At that, the hearing broke up and I just sat there with a very empty feeling. So much of what the judge had said seemed so unfair, downright bigoted in fact. Bennett saw it the same way, especially the judge’s opening remarks. Still, the attorney was optimistic that Schmidt wouldn’t be able to show clearly erroneous which was necessary to overturn Dixon’s recommendations.
The conversation shifted to the Archdiocese of Miami. I wanted to know if my attorney had heard anything from the Church. He hadn’t, so I asked him to prepare the suit against them. “Are you crazy?” Bennett asked, “You can’t beat the Vatican! Besides, Hickey is still on the case!”
“I told you before . . . there’s more to this case than Bobby alone. Rome has defecated on me, my family and my people, and now they probably think they’ve gotten away with it because they haven’t heard from us in weeks. I want my pound of flesh,” I said.
“You want to sue the Church," Bennett said, “Sue them! You know how to write pleadings and lawsuits by now. If I file the thing, I’ll lose all my Catholic clients.”
“When I hired you, I told you that I wanted you to handle both the custody issue and the Church problem,” I argued.
“I’m sorry. I can’t recommend that you sue the Church at this time, and I don’t care about any contingency fee that may or may not be ten years off by the time this thing hits the Supreme Court.”
“All right,” I said, “I’ll wait a few more weeks. But come September if I don’t get any satisfaction, I’m gonna file. It’ll take me a few weeks to put the suit together anyway. Can I count on you to at least answer my questions while I write the thing?”
Bennett told me that I could, within limits. “Are you gonna use that Holocaust stuff?” the attorney wanted to know. The answer, of course, was “yes.”
“Don’t you realize,” Bennett then asked, “that the majority of any jury is likely to be Christian?”
I knew that, but figured that Christian didn’t necessarily mean Catholic. There were many Protestants who were just as opposed to the Vatican as I was. With a little luck and creative jury selection, I hoped to land that type Christian along with a few Jews on the jury. My attack would be against the papacy, not Catholics or Christianity itself.
“But why include the Nazi connection?” Bennett asked.
“To win the way I want to win I have to go for punitive damages. One priest throwing water on a kid’s head is, by itself, not worth much, let alone six million dollars. To go for a symbolic figure like that I’ve got to demonstrate that what was done was part of a continuing war that the Vatican has conducted against the Jews. From the First Crusade in 1096 through Torquemada’s Spanish Inquisition of 1492 to the 1569 order to expel Jews from Papal States to the Papal Concordat with Hitler, Jewish persecution has been a favorite Papal pastime. This pope even invited Arafat, archenemy of the Jews, to Rome. He won’t recognize Israel as a sovereign nation, but the P.L.O., with a charter that calls for the destruction of Israel . . . the P.L.O., supreme terrorist organization of the world, he will! Vatican persecution of the Jews is not ancient history. It is, on the part of Rome, an ongoing process, and it is for this reason that I think the courts will be open to giving Rome a symbolic kick in the gluteus maximus. By the way, speaking of a kick in the posterior, in the 1800’s that’s what the pope did to the chief rabbi of Rome in public every Easter because we haven’t accepted Christ.”
Bennett remained unconvinced, but Steve Busker was not. He wanted to help, but advised me to get an expert in Constitutional law to give me a hand. Both attorneys warned me again not to do anything rash.
A few weeks passed. I continued to boil over the remarks that Hickey had made. I called the B’nai Brith Anti-defamation League and the A.C.L.U. about the comments to find out if there wasn’t some way to get the judge off the bench. B’nai Brith was no help at all, but the A.C.L.U. promised to take the case if the judge ruled against me, for they too saw the remarks as bigoted. Still, I wasn’t content to just sit and wait.
Bob Finnerty, my old friend, was an expert in his own right when it came to filing legal pleadings. He flew into town on the way to a gambling paraphernalia convention at the Breakers Hotel in Palm Beach. After hearing my story he suggested that I file an Affidavit of Prejudice with the Court.
“Your lawyer won’t tell you this,” Bob said, “because the Motion to Disqualify Trial Judge is an insult to any judge. Attorneys don’t like to tick off men they must plead cases before over and over again, but most judges will honor the Motion and get off the case right away. Do it. Hickey’ll fold. I can almost guarantee it.
I took the idea to my attorneys. They thought it made good sense, but as Finnerty had suggested, they wanted no part in the Motion themselves. It would have to be drawn up by me, though Bennett promised to accompany me to court to deliver it.
There was a problem about witnesses to the remarks that had to be overcome before the thing might fly. Still, Bennett promised to do his best to get the judge to accept the Motion based on “the equities of the situation." He felt that Hickey would probably go along with it because, as a politician, he was uncomfortable with a case this controversial.