Is there anything that can surprise a judge during a contested divorce proceeding?
We’ve all read about cases where all of the circumstantial evidence indicated the defendant is guilty, only to be surprised in the eleventh hour some piece of evidence that conclusively proves he couldn’t be guilty, but that someone else is the perpetrator.
We know, sadly, of people mistakenly or wrongfully convicted, which often comes as a surprise (because we hate the idea that the justice system can be and in such cases is corrupt at one or more levels):
And we’ve all, unfortunately, learned of cases where the defendant was falsely accused, which surprises some. See:
Of course. I will describe one common way a judge can be surprised (especially in divorce and family law cases): like all of us, judges have their own worldviews based upon their individual personal experiences, what they were taught as they grew up, their own beliefs and biases. A good judge tries to be as aware as possible of these things, so that he/she will not take a subject approach to the case but will follow where the evidence leads according to what the law dictates.
One of the things that many subjective-minded judges tend to do in divorce and child custody disputes is believe the woman/mother to be:
- the better parent of the two
- financially dependent on her husband
- under the husband’s explicit or implicit control (whether that be financially, emotionally/psychologically, physically, or both)
- victimized in some way (whether great or small) by the husband, if the wife claims to have been. Extremely common examples: “He controlled all the money, wouldn’t tell me how much/how little we had, and wouldn’t give me any to spend,” and/or “He forbade me from having a job,” and/or “He physically/sexually/emotionally abused me and/or the children,” and/or “He forced me to engage in sexual acts that I found objectionable/humiliating,” and/or “He never shared in the household chores and childrearing.”
Don’t get me wrong; many wives/mothers are all of these things, but not always. But 25 years as a divorce and family lawyer I can tell you that in my experiences some judges presume the women to be some of these things simply by virtue of them being women, and if the wife/mother makes claims to being any of these things, the judge will often treat such claims as “prima facie” established until the husband/father refutes/rebuts them.
Consequently, it often surprises some such judges when a husband/father proves* that, while he is not perfect:
- he is honest and/or the wife/mother has been lying about him or on the subject of other issues in the divorce and/or child custody case.
- he is either just as good a parent as his wife or the better parent of the two
- and if he proves he’s the better parent, that often comes as so big of a shock to some courts that the court cannot/will not bring itself to accept such a concept, let alone such a fact
- that if the wife/mother is in fact financially dependent on him (as many wives often are, though decreasingly so in modern society), he has been forthright and transparent about financial matters with his wife
- that he does not exercise any kind of force or control over his wife and/or children but is decent, loving, and treats all of his family members fairly and well
*Getting over that bar is often extremely difficult, sometimes impossible for some husbands/fathers with some judges.
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