THE TEXAS TAPE

At the Family Court and Mediation Conference that the Virginia Supreme Court held for lawyers, judges, court clerks and others in Richmond on November 16-17 of last year, one of the most controversial events was the showing of a 28-minute videotape entitled "Don't Forget the Children." A great many of the conferees reacted to the tape with fear and loathing; others thought that this tape, produced by the Dallas Bar Association for showing to potential custody litigants, deserves the widest possible distribution in our own state. One thing which appears certain is that Virginia attorneys doing custody work should know more about it -- particularly as the Virginia Supreme Court (according to Mark Bayer of the of the Dallas group) began negotiating with the Dallas Young Lawyers in February about an arrangement for licensing Virginia dissemination of the tape or excerpts from it.

If you have a client who needs to be talked out of litigating for custody, this videotape is for you. In a series of well-rehearsed speeches by judges, lawyers, mediators, mental health professionals and clients, it shows you how to do just that. Many at the Richmond conference felt that the tape's "scared straight" approach relied too heavily on exaggeration. After viewing it you might or might not think that.

For a talking-heads show, "Don't Forget the Children" is gripping, swiftly paced and smoothly executed. It has certain limitations that are obvious at the outset. All the speakers' presentations are obviously teleprompted or carefully rehearsed from a written text. This may make their presentations ring less true than the disjointed spontaneity that people have come to celebrate as "real television," but most viewers will probably appreciate the complete sentences, the rational thought patterns, and the focused delivery. The speakers exhibit 75% to 85% Texas accents, and this can be as distracting as the tape's occasional references to the practice of trying custody cases to a jury. Among the clients, some of the speakers are actually so inarticulate that the are unable to say what they mean and end up saying what they don't mean. However, these shortcomings seem to detract but little from the tape's very hard-hitting delivery of its central message.

That message is what most judges think: that no parent who loves his child would subject the child to anything so awful as custody litigation. The tape is quite accurate in describing what happens to parents and to children in the course of a litigated custody battle. The tape describes horrendous expense, the life-crippling effect of the law's bizarre and arbitrary delay, the processes of humiliation and dehumanization of the adults involved, and a few of the various effects this can have on kids. The tape makes some effort at the end to sell both mediation and joint custody as alternatives, although it is careful to warn that neither one is for everyone.

Its primary objective being to get this stuff out of the courts so judges can do other things, this movie is full of brutally straight talk about the hostility a parent will encounter in the courtroom from opposing party, opposing counsel, witnesses and judge. Texas judges take as much delight as judges everywhere in telling adults "We are not here to be fair to you" every time they explain that the criterion is best interest of the children. One judge concludes the interviews by sternly intoning that children are going to be worse off with the better parent ("most capable parent") if it takes a custody trial to get them there.

There are of course fallacies that the critical viewer can pick up. Glorying in one's unfairness is only valid on one level of analysis, and no one comes on the screen to explain that. One appellate judge who says that you can't love children and put them through this gives as her reason that "There are so many alternatives." But of course no one says what happens when none of the alternatives will work. The obvious problem with encouraging the best parent to give up custody because it is not as bad as a custody trial is that at least 80% of the time that argument convinces only the best parent. An interview with a child which is supposed to be touching serves to drain the tape of some credibility because it unintentionally shows how right the jury was to avoid placing him with the parent he wanted.

Nevertheless, the Dallas tape appears to be one which could, with careful use, serve some useful purposes here in Virginia. The court system's idea of mandatory showing to all custody litigants shortly after filing might accomplish a great deal. It is apparently no longer done in Dallas. The tape might possibly meet an even wider range of needs if shown privately through lawyers' offices. If an attorney turns out not to like the tape, the financial risk will not have been that great: it is available from the Dallas Association of Young Lawyers for $30.00 post-paid. The quickest way to obtain it is to write to Mark Bayer, Esquire, at 3000 Thanksgiving Tower, Dallas, Texas 75201.