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Two Rights Make Decision Tougher
by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

Who gets custody when both parents are good?

People who come to my court with disputes or disagreements almost always have the notion that one of them is right and the other is wrong.

The judge's job is to figure out which is which, and to reward the one who's right and punish the one who's wrong. Right and wrong are what courts are all about.

In December 1987, a case was in my court that showed me how inappropriate right/wrong analyses are in divorce cases. The case went as follows.

Each person was 19. They had not been married, but they were the parents of a 2-month-old-child.

Neither had any post-high-school education or training. Their earning capacities were at minimum wage--then $3.35 an hour.

Their take-home pay was about $475 a month each. Day care cost $200 a month. Obviously, neither could survive alone.

The case was in court because the young mother wanted to return to Wyoming to live with her parents and she wanted to take the baby. The young father, who was also living with his parents, in Albuquerque, dearly loved the child, and he was a wonderful parent, as was the mother.

He did not want the child to leave New Mexico for obvious reasons.

As you can see, it was a very difficult case to decide, but I found myself agonizing about it much more than usual.

I wondered why this case seemed so much harder than any other I had seen. Then I realized why, and it was this:

Both of the young parents had been so wonderful. They had been nice to each other. They had been polite to their respective parents, their child's grandparents. They had been courteous to the court. And they were both so absolutely right about what they wanted.

It dawned on me that in most cases I see, the disputing individuals tend to misbehave to some degree. They tend to adopt the eye-for-an-eye approach, forgetting how true the old proverb that two wrongs never make a right is.

I realized also that my legal education and training had been to analyze cases from a right-or-wrong frame of reference.

Because most disagreeing parties behave badly, in most cases a decision can be based, or justified (perhaps rationalized), on a right/wrong foundation.

In this case, however, there wasn't a smidgen of wrong to be found.

The child went with its mother, because the grandparents at that home could take care of the child during the day, when the mother was at work.

The lesson I learned from that case is that in divorce cases, most disputes are right/right problems. There is usually enough misbehavior or "wrong" to go around, but when one peels away the layers of misbehavior and looks at what each party wants, one finds that each party is basically right.

It is right for both parents to want custody of a child or to want to spend as much time as possible with a child. And when one party says she or he can't afford to pay more money, she or he is generally right.

I find this right/right lesson to have been one of the most valuable and useful lessons I've yet learned as a judge.