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The Christmas visitation.


Judge John Patrick O'Brien watched the December sky grow more diffusely yellow and orange, as gray, snow-saturated clouds gathered from the west. The long afternoon was ending. It was John O'Brien's last active day as judge of the Tenth Division Circuit Court, the last day he would watch the daylight disappear through the large double-insulated windows that spanned his office in the new Hall of Justice. That view was the only aspect of the new courthouse he enjoyed.

It had been ten years since Judge O'Brien had made the move over from the old courthouse across the street. He had surrendered an office in which a future justice of the Supreme Court and a former U.S. senator had once grappled with the judicial issues of their day. Moreover, the office had thick oak paneling, a brass chandelier, and most memorably, a green leather couch his father had given him when he took the bench in 1955. The couch had been sacrificed when he was assigned the pristine 9'x12' cubicle in the Hall of Justice. Perhaps with the couch, an era had passed for Judge O'Brien. The ten years after the move had marked a gradual slide in his judicial career, culminating in an election defeat the month before.

And yet this Friday before the Christmas weekend the recollection of his old green couch prompted fonder memories of when O'Brien was the youngest, not the oldest, circuit judge in the Commonwealth of Kentucky. His father had proudly supervised the men from Stewart's Department Store as they maneuvered the unwiedy Chesterfield around the walnut newel posts of the old courthouse stairs. Huffing and puffing, the movers left the two standing alone together on that bright, crisp day in January, unashamedly basking in the unspoken love of father and son.

As O'Brien's mind wandered back to the present, he could feel the temperature dropping inside his office to match the cold front outside. The gray of the sky overtook the last hint of daylight as the judge's banjo clock struck five. O'Brien lifted his legs from his desk and lowered them to the floor. They were swollen more often now and tended to ache or fall asleep after a few moments. O'Brien looked at his calendar and ran his right index finger carefully down the December dates until he arrived at Friday the 23rd. After the election he had determined to rest more often than not, take a full three weeks' vacation during Christmas, and simply not come back before his opponent took office.

The one exception to the above plan had been Dr. Grant's malpractice trial, which was to have begun in late November. Judge O'Brien had intended it to be his judicial swan song. He had ordered pretrial briefs, researched the law more thoroughly than he had in several years, and held pretrial conferences on his own motion. Unwittingly, he had thus forced the litigants to come to their senses before trial. His diligence had compelled them to settle the case. Nothing of any serious merit had arisen since that time.

O'Brien read the caption Little v. Little on his calinder. He was taken aback. That case had concluded six months before. Or had it? He remembered signing the final order. Or had he? He also remembered the subtle charges of his young opponent during the election. She said he was losing his edge. Admittedly, he tired more easily at 65 and dozed a little during the more boring cases, but certainly his mind was still sharp. He wrote few of his own decisions any more, and his temper was somewhat shorter with attorneys who would not take "no" for an answer, but surely his memory was not failing. Little v. Little had concluded. He pushed the buzzer on his phone. There was no answer. Then he remembered that his clerk and his secretary had both left for the br association's Christmas party. He would be there soon, he hoped, or miss his last chance to pat backs and shake hands with his more loyal supporters.

"Clarence," Judge O'Brien called out toward the hallway. There was a gentle rap at the door as Clarence responded. "Come in, Clarence." The sheriff of the tenth division had been with O'Brien for nearly as long as O'Brien had been on the bench.

"Why do I have Little v. Little on my book for this afternoon? Why do I have anything on my calendar for this afternoon? We should both be at the Foundation Building sipping eggnog."

"Well, Your Honor, Peggy scheduled the hearing at Monday motion hour. It's a Christmas-visitation question."

"Good grief," O'Brien muttered in disgust. "She should have known better than that. She knows how I've always hated these family questions . . .no law. . .flip a coin. . .everyone leaves angry."

"Well, Judge, if you please, I was talking to the boy's grandma out in the courtroom. She and the boy got here early. And according to her--"

"Clarence, you know I'm not supposed to listen to ex parte discussions."

"You're right, Judge."

"Well, never mind. You were saying that she told you--"

"She told me the boy's been with her for a couple of weeks now. Seems her son, the boy's daddy, travels a lot and so does the boy's mother, and now they both want the boy for Christmas."

"O.K., I probably shouldn't listen to any more before we go out in the courtroom." O'Brien paused. "Does the boy appear to be abused?" Always inquire, the judge had been taught. A "yes" might allow him to refer the case to child services and get him out of the courthouse before 5:30.

"No. His grandma's been treating him fine, and I suspect his mom and dad love him a lot, so he's O.K."

"Oh," O'Brien said, sighing, rising slowly from his chair, and straightening his back. "Let's get on with it, then." O'Brien walked stiffly to the peg behind his office door and reached for the black robe he had worn for the past 30 years. By second nature Clarence helped him with the robe, neither man realizing at that point it was a ritual not to be repeated.

O'Brien moved out into the hallway, now dark and deserted, and raised his robe slightly. He leaned over the water fountain and took three quick swallows to remove the cottony feeling from his mouth. "O.K., Clarence, let's go." Both men paused for a moment, now cognizant of an era's ending.

Clarence smiled, then swung open the door and strode into the courtroom. "All rise. Hear ye, hear ye. Silence is commanded. Judge John Patrick O'Brien of the Jefferson Circuit Court, Tenth Division, is now presiding. All ye who have motions to be heard shall be heard. Be seated and remain silent."

Judge O'Brien walked forcefully into the courtroom and stepped up to the bench. A file sat unopened in front of him. He looked up and briefly greeted the parties and their counsel. There was no need to delve very deeply into the contents of the file, present more for security than for any real purpose. Judge O'Brien vaguely remembered Mr. and Mrs. Little and their attorneys, Mr. stall and Mr. Noll. In the back of the courtroom sat a little boy, maybe nine or ten--it was the first time he had actually seen the Little's child, now huddled closely to an older woman. He supposed she was his grandmother, and he was surprised that she looked older than O'Brien felt. His eyes reverted to the file in front of him, and he skimmed the motion of the mother's attorney.

"Mr. Stall," O'Brien began. "Your motion to change Christmas visitation is before the court. Could you please familiarize the court briefly with the facts and basis for your motion." O'Brien surprised himself with the apparent solemnity of his demeanor.

Stall stood up and cleared his throat. He glanced nervously at the sheriff, then the opposing counsel, and at last the judge. He and Mr. Noll both realized they were before the wrong judge on the wrong day at the wrong hour of the afternoon.

"If the court please, Your Honor. We will try to be brief, knowing that we all want to get home on this Friday before Christmas." Stall paused. He was never brief and often irrelevant. "As you may recall, my client, Mrs. Little, was granted custody of her ten-year-old son, Patrick, in the decree you entered earlier this year." O'Brien's eyes softened. He had never known the boy's name was Patrick. "The visitation agreement reached between the parties and the court provided that the boy spend Thanksgiving from Wednesday through Sunday with his mother and that he spend Christmas from December 21 through December 26 with his father. Well, it seems that his father. Well, it seems that his mother. . .uh, Mrs Little. . . had a business engagement in California. . ." Stall cleared his throat a second time. "O'Brien was amazed at the manner in which Stall always cleared his throat just before making a slight misstatement of fact. ". . .over Thanksgiving weekend. So she obtained a trade-off with Mr. Little for Christmas."

"She went skiing and dumped him on me," Mr. Little mumbled loudly.

O'Brien cracked his gavel. "Mr. Noll, you will please advise your client to remain silent until the court asks him a question and to otherwise address the court through counsel."

"Yes, of course, Your Honor. We're sorry," Noll explained, with a withering glance at Mr. Little.

Stall continued. "The boy--Patrick--has been with his father's mother for the past two weeks, and in the interests of the child, it would seem advisable for him to spend Christmas with his mother, the custodial parent."

O'Brien looked around him as Stall sat down. In the old courtroom the ceilings had been 20 feet high with 14-inch crown moldings, and the plaster walls were adorned with portraits of the commonwealth's past circuit judges. The new courtroom had 8-foot ceilings, with recessed fluorescent lighting had concrete walls, much like a prison's.

Judge John Patrick O'Brien gazed at the back of the courtroom. He rubbed his chin and struck a pose that made him appear to be deep in thought and contemplating the question before him. It was an acquired skill. Then something--the boy's squirming or the pained expression on the old woman's face--caught his decision would make a difference, and it made him all the more uncomfortable.

After clearing his throat and adjusting his horn-rimmed glasses, Judge O'Brien looked to the tables of both counsel. Fully aware of the answer to his question, O'Brien asked, "Who are the visitors at the back of the courtroom?"

Noll stood up. "Your Honor, that's the boy and his grandmother, Mr. Little's mother. If you would like, we can have them leave the room."

"Mr. stall, would you prefer that they leave the courtroom?"

"Well, no, Your Honor, but perhaps it would be better if--"

"Very good. Well, if there are no objections, then the court will ask them to stay."

Noll stood up and began to speak. "Just a minute, counselor," O'Brien interrupted. "Please introduce our visitors to the court. Better still--Mrs. Little, would you and your grandson please come down a few rows?"

"I understand Patrick's been with you for a few weeks, Mrs. Little?" O'Brien continued after the two had chosen closer seats.

The older woman stood up. "Yes, Your Honor. I live close to his school and I'm retired now, so Patrick and I can play when school's over." She stopped, embarrassed she had begun to talk so much.

"What have you been doing to get ready for Christmas, Patrick?"

"Oh, buying presents, and fixing the tree, and making bread and stuff with grandma."

"Uh-huh. . .that's nice, Patrick," Judge O'Brien said, smiling. "You-all please sit down now. Mr. Stall, where will your client and her son be going for the Christmas holiday?"

Stall beamed, certain now of a quick victory. "Perhaps Mrs. Little might best inform the court--"

"Yes, that would be fine. Mrs. Little?"

"Well, Your Honor, I have a friend in New York. Patrick and I were going there."

"And he lives in Manhattan?" the judge posed.

"Yes, well, he has a very nice town house that overlooks Central Park."

"I see. . .Mr. Little. . .you are. . . uh--"

Noll stood up for his client. "Your Honor."

"Mr. Noll, please, if you don't mind. We can speak informally. Mr Little should feel free to tell me his plans."

Little stood up. "Well, Your Honor. . .I have an apartment here in town. I'll probably be staying here. Have some friends over."

The courtroom was silent. O'Brien smiled. Now he remembered the Littles. Mr. Little was a stockbroker. Mrs. Little's family had some money. Their divorce had been full of spite and bickering. They had both contributed to the judge's campaigns through the years.

"Mrs. Little. . . ." The petitioner stood up. "No, I'm sorry. I mean Mr. Little's mother." The old woman stood up slowly. "And where do you live?"

"German Hill, Your Honor. State Street."

O'Brien knew the neighborhood well. It was old, rough, and working class.

"And where does the boy. . .Patrick. . .go to school?"

Stall rose. "He's been attending classes at Country Day Elementary."


"Well, Mrs. Little is contemplating a move out of town after the first of the year."

"Yes. . . ." O'Brien said quietly.

He glanced at the clock on the wall. It was past 5:30. The party was almost over. In an hour O'Brien's daughter and family would be getting into town from Atlanta. Their visits were the only time the old house ever seemed full any more. O'Brien needed to reach a decision. A finding for either litigant would quickly resolve things--the anger would simply carry over to another judge, another day, another dispute.

"Well, Mr. Stall, I have to recognize that your client is the custodial parent. She is the boy's mother. Certainly, visitation is merely a privilege Mr. Little enjoys."

"Thank you, Your Honor," Stall said with a smile.

The judge ran his hand back through his hair and pressed his glasses off his nose and against his temple.

"On the other hand, Mr. Little has certain parental rights. . .Christmas was scheduled as his time."

O'Brien paused for a moment. Suddenly and for no particular reason he realized this would be his last decision on the bench. It would not be the type of legal analysis that had once been his pride. Training at the state university and Harvard Law School had not prepared him for a decision so arbitrary. A flip of a coin could be made by anyone.

"Mr. Little," O'Brien again addressed the litigant directly. "Have you a Christmas tree in your apartment?"

Little turned and looked at his lawyer. Noll looked back at him helplessly.

"Mr. Little?" O'Brien repeated.

"Well, no. Frankly, his mother and I both believe that Patrick's getting a little too old. . .well, he's sufficiently mature. . .that it doesn't . . .or isn't necessary--"

Judge O'Brien interrupted. "Please, Mr. Little, I was just curious. The court is instructed by statute to be aware of and consider foremost the interests of the child. This alone certainly doesn't determine whether you or your former wife would best provide for the child's well-being at Christmas.

"Mrs. Little," O'Brien continued, "have you social plans for Christmas Eve, and if so, will you be able to make adequate sitter arrangements?"

"Yes, Your Honor. Patrick's sitter will be a very bright girl--my friend's oldest daughter."

"Thank you, Mrs. Little. I'm sure the arrangements will be adequate." Judge O'Brien stood up abruptly. "The court will take a very brief recess. Please remain in the courtroom."

The judge raised his robes and walked with uncommon speed out of the courtroom. He stepped into the back hall, felt the sweat on his upper lip, leaned over the drinking fountain, and took the water in gulps.

"What are you going to do, Judge?"

O'Brien started. It was Clarence, standing with folded hands by his side. The two of them were undoubtedly the only representatives of the state remaining in the Hall of Justice.

"I don't know, Clarence. Decisions like this shouldn't be made by judges. The law tells me I have two choices--father or mother--and neither will help that boy very much. Not that they're bad parents, really. They're just a little selfish and still very angry at each other." He paused. "I hate this part of it."

"The boy's happy with his grandma, Judge," Clarence said. "I saw them outside together before the hearing. They were playing and cutting up and hugging and kissing each other."

"Clarence, I'm sure you're right. I can see that too. But I have no legal right to do anything except choose between the parents. Besides, she's Mr. Little's mother. Like it or not, he'd have the boy in minutes."

They stood in helpless silence together. The judge had no ready solution. Without pretension of form or legal precedent, he simply wanted a just result. Reversal by the court of appeals would no longer mean anything--he would be out of office. Simply following "the book" was neither possible--since the decision between mother and father lay simply within his judicial discretion--nor desirable. This was how his career would end: on a Friday before Christmas and trapped within a decision that could offer no legal swan song or newspaper headline.

The judge suddenly pictured his final trip from the courthouse. He could imagine the snow that must now be falling outside his window and gradually making the downtown streets more treacherous and desolate. And he could see the lonely, winding way up to the rambling Victorian house he had inherited from his father. An image--brief, yet piercing--of his father at Christmas, posed before the tree where it always stood and holding out his arms, said, "Patrick O'Brien, you rascal, come here."

The old judge twisted his head away from Clarence, overcome for a moment with his memory.

He felt a nudge on his sleeve. "Come on, Judge. You'll do the right thing. You always have." Clarence started to move away.

"Do you mean that?" O'Brien asked.

"Why, sure I do, Your Honor. Everybody knows that."

Judge O'Brien was stunned. Clarence was sincere. A feeling that had left the judge long before the last election now began to edge its way back into his consciousness. O'Brien had once felt he made the "right" decisions. Perhaps, even after his own confidence had waned, his decisions had remained sound.

"Come on, Clarence, let's get on with this and get home," O'Brien said as he stood up straight. He reached for the door and grasped the brass bar tightly. "Let's see if we can bring home justice to light."

Judge O'Brien quickly took the bench and brought the gavel down. "Court is in session." Clarence grinned. Old memories flashed.

"Would Mr. Little's mother please step forward?"

The old woman looked at the little boy, who moved over suddenly to her and hugged her tightly.

"I'll be all right," O'Brien heard her whisper. She came to the front of the courtroom.

"Mrs. Little, are you married?"

"Widowed, Your Honor."

"How often have you seen Patrick in the past three years?"

"Oh, Your Honor, Patrick's been with me quite a bit--several times a week."

"And steadily for the past two weeks?"

"Yes, Your Honor."

"Please take a seat, Mrs. Little."

O'Brien folded his hands and looked squarely at the parties and their lawyers. "The court has heard the evidence and considered the file. Under ordinary circumstances the court must find for the boy's mother." Stall grinned as the judge paused. His grin eroded as O'Brien continued. "But these are not ordinary circumstances." Noll began to twitch his fingers in nervous anticipation.

"The cour declines to grant custody to either Mr. or Mrs. Little. Recognizing that the court has no right to grant custody to Patrick's grandmother, the court will hereby turn Patrick over to the county youth authorities until the court can decide this question after Christmas recess." O'Brien looked solemnly to Clarence, then smiled knowingly. "However, since the county youth advocate has gone home--or to party--the court will turn Patrick over to the sheriff--who will in turn see that the boy is retained in the custody of the court. The court is spending Christmas at home, with Patrick and his grandmother--if she will be my family's guest--and the court's phone is open for calls and the court's living room is open for visits from either Mr. or Mrs. Little--if time permits. It is so ordered."

The gavel came down and in unison the lawyers bounced up with objections. The litigants glared angrily, and Judge O'Brien calmly gathered his robes and left to bench. Clarence, barely able to contain himself, beaming from ear to ear, adjourned court.

In two little bands the parties left the courthouse with their lawyers, muttering of injustice and the insanity of the judge. Patrick and Mrs. Little waited patiently on the front steps where Clarence had asked them to meet the judge. Judge O'Brien quietly shed his robes for the last time and, as he looked out his window at the snowflaked swirling and dancing in the street below, smiled as he turned off his office light for the last time.
COPYRIGHT 1986 Saturday Evening Post Society
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Copyright 1986 Gale, Cengage Learning. All rights reserved.

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Title Annotation:short story
Author:Toner, Gerald R.
Publication:Saturday Evening Post
Date:Dec 1, 1986
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