[WHEREUPON THE CASE RESUMED AT 10:27 AM]
THE CLERK
All rise. Judge Elmer Duran presiding.
JUDGE DURAN
You may be seated. Case continues. You may call your next witness, Barrister.
MR LINDSAY
Thank you, Your Honor. At this time we would like to call Jonathan Sims to the stand.
JUDGE DURAN
Can we get a stool in here, please? Or a box?
[A BOX IS BROUGHT IN AND PLACED BEHIND THE WITNESS STAND]
[J. SIMS TAKES THE STAND]
THE CLERK
Place your hand on the Bible.
Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
J. SIMS
Yes.
MR LINDSAY
Say your full name for the court reporter, please.
J. SIMS
Jonathan Andrew Sims.
MR LINDSAY
How old are you, Jonathan?
J. SIMS
I’m…five.
MR LINDSAY
Do you know why we’re here today?
J. SIMS
Yes.
[SHORT PAUSE]
MR LINDSAY
All right.
You live with Mr and Mrs King, isn’t that right?
J. SIMS
Yes.
MR LINDSAY
Do you like living there?
J. SIMS
Yes.
MR LINDSAY
Do you want to keep living there?
J. SIMS
Yes.
MR LINDSAY
Okay, we’re going to ask a few more questions to help with that.
How many bedrooms are in the house you live in?
J. SIMS
Three.
MR LINDSAY
Is it clean?
J. SIMS
Yes.
MR LINDSAY
Who helps keep it clean?
J. SIMS
All of us.
MR LINDSAY
Do you go to school?
J. SIMS
No.
MR LINDSAY
Do you want to go to school?
J. SIMS
Yes.
MR LINDSAY
Do you get supper every night?
J. SIMS
Yes.
MR LINDSAY
Do you ever get in trouble?
J. SIMS
Yes.
MR LINDSAY
What happens when you get in trouble?
J. SIMS
I say I’m sorry and I do what I can to fix it.
MR LINDSAY
Do you ever get spanked?
J. SIMS
No.
MR LINDSAYMR
Do you ever get sent to bed without supper?
J. SIMS
No.
MR LINDSAY
How often do you get new clothes, Jonathan?
J. SIMS
Two or three times a year.
MR LINDSAY
Do you get to pick them out yourself?
J. SIMS
Yes.
MR LINDSAY
Do you feel safe at home?
J. SIMS
Yes.
MR LINDSAY
Thank you, Your Honor. No further questions.
JUDGE DURAN
Mr Banford?
MR BANFORD
Now, Jonathan, you know you need to be completely truthful, don’t you?
J. SIMS
Yes.
MR BANFORD
That means that if you don’t know the answer, you have to say so.
J. SIMS
I understand.
MR BANFORD
Good. Now then. When did Mr King start telling you to call him Daddy?
J. SIMS
I don’t remember.
MR BANFORD
Was it before your mummy died?
J. SIMS
Mummy isn’t dead.
A. KING
Your honor—
MR BANFORD
Barrister, please silence your client. I’m speaking to Jonathan.
JUDGE DURAN
Order in the court.
MR BANFORD
Now, Jonathan, I know this is very confusing for you, but I’m not talking about the people sitting at this table.
Let me put it another way. What did you call the person married to your mummy?
J. SIMS
Daddy.
MR BANFORD
Very good. Is he still your daddy?
J. SIMS
Yes.
MR BANFORD
Excellent! So who is this man?
J. SIMS
Daddy!
MR BANFORD
Your Honor, this is completely unproductive. My client was fully against her grandson being allowed to speak in the first place. He’s only four years old. He isn’t capable of giving a reasoned, intelligent opinion, and he’s obviously been coached by Mr and Mrs King.
MR LINDSAY
Your honor—
JUDGE DURAN
One moment, Jonathan, I see you have your hand raised. Do you have a question?
J. SIMS
Am I allowed to say when someone isn’t telling the truth?
JUDGE DURAN
Who isn’t telling the truth?
J. SIMS
Mr Banford.
MR BANFORD
Your honor, it’s not a lie to point out—
JUDGE DURAN
It’s not your turn to speak, Barrister. What did he lie about, Jonathan?
J. SIMS
He said I’m four years old. I’m five.
JUDGE DURAN
He is correct, Barrister, he did say that he was five at the start of the questioning.
MR BANFORD
But he didn’t say I lied about his being coached by Mr and Mrs King.
JUDGE DURAN
Jonathan, did Mr and Mrs King say anything to you about what you should say when you were here?
J. SIMS
Yes. At least, Daddy did.
JUDGE DURAN
What did he tell you?
J. SIMS
He said I should tell the truth when I was asked a question, but that the rules of the court are that I was supposed to answer just the questions I was asked and not the questions I wanted to answer, or the questions I thought the barristers really meant to ask me, and not to say more things than I was asked, especially if it was a yes or no question.
JUDGE DURAN
Did Mr Lindsay ask you any questions like that?
J. SIMS
Yes.
JUDGE DURAN
What did he ask you?
J. SIMS
He asked if I went to school, and if I wanted to go to school.
JUDGE DURAN
And what did he not ask you?
J. SIMS
He didn’t ask me why I don’t go to school.
JUDGE DURAN
Why don’t you go to school, Jonathan?
J. SIMS
Because the law says that in order to start in primary school, students must be five years old at the start of the term, so I can’t start school until September.
JUDGE DURAN
When is your birthday, Jonathan?
J. SIMS
It’s today.
JUDGE DURAN
Well, happy birthday.
J. SIMS
Thank you.
JUDGE DURAN
Did Mr Banford ask you any questions that you think he didn’t finish, or that he meant differently than he asked them?
J. SIMS
Yes.
JUDGE DURAN
What did he ask you?
J. SIMS
He asked me what I called the person married to my mummy.
JUDGE DURAN
And what do you think he meant to ask you?
J. SIMS
I think he meant to ask me what I called the man named Paul Sims.
JUDGE DURAN
Is that what you meant to ask, Barrister?
MR BANFORD
Your Honor, it’s clearly the same question—
JUDGE DURAN
It’s a yes or no question, Barrister.
MR BANFORD
Yes.
JUDGE DURAN
All right, Jonathan. What did you call the man named Paul Sims?
J. SIMS
Papa.
JUDGE DURAN
And the person he was married to? What did you call her?
J. SIMS
Mama.
JUDGE DURAN
So your mama and your papa are dead, and your mummy and your daddy are at that table there. Is that what you’re saying?
J. SIMS
Yes.
JUDGE DURAN
Barrister, please have a seat. I will ask the questions here.
[MR BANFORD TAKES HIS SEAT]
JUDGE DURAN
You’re a very smart young man, Jonathan, so I’m going to ask you to do me a favor. Can you tell me if you think I’m asking the wrong questions?
J. SIMS
Yes.
JUDGE DURAN
Good. Now then. How many times since you were born have you seen the woman sitting at the table over there before you came to court, that you remember?
J. SIMS
I only remember one time.
JUDGE DURAN
And when was that?
J. SIMS
When Papa died.
JUDGE DURAN
How many times has your grandmother called on the phone to ask to talk to you?
J. SIMS
I don’t know, but I think you’re asking the wrong question.
JUDGE DURAN
Very good! That was a test, and you’ve passed. How many times have you talked to her on the phone?
J. SIMS
Once.
JUDGE DURAN
And when was that?
J. SIMS
After Papa died, but before we moved to Woodley.
JUDGE DURAN
Did you call her, or did she call you?
J. SIMS
She called us.
JUDGE DURAN
Did you ever try to call her?
J. SIMS
No.
JUDGE DURAN
Did you remember her?
J. SIMS
Yes.
JUDGE DURAN
If she had called to ask to talk to you, do you think your mummy and daddy would have let her talk to you?
J. SIMS
No. But I think you’re asking the wrong question again.
JUDGE DURAN
What should I ask you, Jonathan?
J. SIMS
If I wanted to talk to her.
JUDGE DURAN
Did you want to talk to your grandmother?
J. SIMS
No.
JUDGE DURAN
Why not?
J. SIMS
I was scared she would try and take me away.
JUDGE DURAN
What made you think she would try and take you away?
J. SIMS
She said she was going to.
MR BANFORD
Your Honor—
JUDGE DURAN
Be quiet, Barrister.
When did she say she was going to take you away?
J. SIMS
The last time I talked to her on the phone.
JUDGE DURAN
How old were you, Jonathan?
J. SIMS
Two years, eleven months, and nine days.
JUDGE DURAN
How do you remember that so precisely?
J. SIMS
Because it was the Tuesday after Easter, and we moved to Woodley on our birthday. And that was a Sunday, because the train doesn’t run all the way to Woodley on Sundays.
JUDGE DURAN
That’s very impressive, you remembering that.
J. SIMS
Thank you.
JUDGE DURAN
Now, before I ask you this next question, I want to make one thing very clear. I do not want you to try and repeat the exact words of the conversation. I only want you to give me the general ideas. Do you understand why I’m asking you that?
J. SIMS
I think so.
MR BANFORD
Your Honor, I would like Jonathan to state for the record—
JUDGE DURAN
Yes, thank you, Mr Banford, I was getting to that.
Jonathan, why do you think I’m asking you not to repeat the exact conversation?
J. SIMS
Because I might remember the words wrong. I might think that she used words that she didn’t because they make me feel more upset than the words she did use. And I said I would tell the whole truth and nothing but the truth, so if I say words that she didn’t say, I’m…lying under oath. And if I say she said something she didn’t on the record, that’s…libel. No, slander. It’s libel when you write it down. Right?
JUDGE DURAN
Very good, Jonathan. Where did you learn what slander and libel were?
J. SIMS
Mama taught me.
JUDGE DURAN
Well, you’re right. That’s exactly why I just want to hear what you remember, but I don’t want you to try and tell me like a conversation. Just a summary. Can you do that for me?
J. SIMS
Yes.
JUDGE DURAN
Okay. When your grandmother called you on—let me see—
THE CLERK
Tuesday, second April, 1991.
JUDGE DURAN
Tuesday, the second of April, 1991—thank you. What did you talk about on the phone?
J. SIMS
I didn’t talk. Grandmother did all of the talking.
She said she was glad I had picked up the phone, because she wanted to talk to me and she didn’t want—
[SHORT PAUSE]
JUDGE DURAN
Jonathan?
J. SIMS
I—I know you said not to say her exact words, but…but it’s important to say these.
JUDGE DURAN
Go ahead.
J. SIMS
She said, “Your mother mustn’t know until it’s time, or it won’t be safe.”
JUDGE DURAN
Time for what?
J. SIMS
After she said that part, she said I didn’t need to be sad or afraid anymore because she was going to send someone to get me and bring me to live with her forever.
JUDGE DURAN
What did she say after that?
J. SIMS
I don’t know. I got upset and started crying and Mummy took the phone away.
JUDGE DURAN
Did you tell her what your grandmother said?
J. SIMS
No.
JUDGE DURAN
Did you tell anybody?
J. SIMS
Yes.
JUDGE DURAN
Who did you tell?
J. SIMS
I told Melanie.
JUDGE DURAN
Did you tell an adult?
[SHORT PAUSE]
J. SIMS
No.
JUDGE DURAN
Why not?
J. SIMS
I—I didn’t know what Grandmother meant. When she said it wouldn’t be safe if—
I knew Melanie wouldn’t tell Mama. Or Mummy.
JUDGE DURAN
I see.
I see.
Thank you, Jonathan. You may go sit down.
[J. SIMS STEPS DOWN]
[MS ESTEP TAKES J. SIMS OUT OF THE COURT]
MR LINDSAY
I have no one further to call, Your Honor.
MR BANFORD
We are also finished, Your Honor.
JUDGE DURAN
The court will now take a ten minute recess.
THE CLERK
All rise.
[COURT RECESSES AT 11:03 AM]
[AT 11:14 AM, CLERK ADDRESSES THE COURTROOM]
THE CLERK
Attention. Judge Duran has requested additional time to consider his evidence. We will therefore extend the recess to allow for all involved to go to lunch. Court will resume at one o’clock this afternoon. Thank you for your accommodation.
[ALL LEAVE THE COURTROOM]
[WHEREUPON THE COURT RESUMES AT 1:00 PM]
THE CLERK
All rise. Judge Elmer Duran presiding.
JUDGE DURAN
You may be seated. My apologies for the extension of the recess beyond the previously stipulated ten minutes, but there were a few things I needed to confirm. However, as a result of those inquiries, I am now ready to give my opinion in this case.
In deciding on the guardianship of a minor child, there are a number of factors that need to be taken into consideration. In situations like this one where both biological parents named on the birth certificate are deceased, it becomes even more complicated. Of course the court broadly prefers to keep children with their biological family, but there are other considerations as well.
The first is the age of the potential guardians. Mrs Sims is, obviously, older than Mr and Mrs King, but she has produced evidence from her doctors that she is in good health for her age and can be expected to live another twenty years, plenty of time to raise a child of Jonathan’s age to adulthood. Thus her age would not be a factor in this case.
The next is financial status. Here again, there is little to distinguish between potential households. Both households have comparable incomes when scaled for the number of people in them, and with Jonathan’s trust fund, there is no difficulty there. I have heard Mr Banford’s arguments that Mr and Mrs King are only attempting to take custody of Jonathan in order to take control of his money, but I also have the evidence of Mr Lindsay that they were unaware of said trust until it was brought up in court. The balance of probability is on his side, and so I am not considering financial gain as a motive on either side.
A third factor to consider is relationships. Who has the better relationship with the child? In this matter, the evidence is clear. Mrs Sims was able to name each time she had seen her grandson, evidence corroborated by Mr and Mrs King and by Jonathan himself, who stated that he only remembered meeting her once. While Mr Banford has argued that it was Mr and Mrs King who prevented that relationship from happening, aided and abetted by the late Susan Norris Sims, I am compelled to point out that even before the death of Jonathan’s father, her son, by her own admission, Mrs Sims had only seen Jonathan twice, at his christening and at the funeral for her own husband two months later. This does not speak to an attempt or desire to maintain a relationship on either side. By contrast, Mr and Mrs King have produced significant evidence that they have been in Jonathan’s life since before his birth. Mrs King has been his caretaker while his mother—and, prior to his death, his father—worked, and Jonathan and his mother went to live with them after Paul Sims’ death. Thus, in this case, it has been firmly established that the better relationship is with the Kings.
Fourth is the welfare of the child as a whole. Mrs Sims has argued that the air in Bournemouth is healthier for a growing boy, that the climate is more suitable, that the schools are excellent. She has, in fact, offered several compelling arguments about Jonathan’s physical wellbeing, and a few more about his spiritual wellbeing. However, she has spoken little about his mental wellbeing. Jonathan has, as I said, spent his entire life with Mr and Mrs King and their daughter. During the recess, I took another look at the papers provided to me by both sides, and I noted that Jonathan and Melanie King have the same birthday and were born in the same hospital, so it has truly been his entire life. Furthermore, having spoken with him, it is clear that he himself prefers to stay with the Kings. A child of five years is not generally considered mature enough to express an intelligent preference and have much say in their placement, but I do intend to take it into consideration.
While a deceased parent’s will is of course merely a preference when it comes to guardianship of a minor child, it is at least a factor to consider. And while Susan Norris Sims did in fact predecease her husband, and therefore his provisions are moot, I did send for a copy of his will during the recess just to confirm that their wishes were the same. Paul Sims’ will, dated six months before his death, did indeed state that, should his wife predecease him, guardianship of any minor children born to their marriage should be given to Mr and Mrs King. However, there was another clause that drew my attention. It was a clause specifically disinheriting his mother, Mabel Sims, and stating that if she should survive him, and I quote, “it shall be as though she had preceded me in death” and that she was not entitled to anything from his estate.
Obviously one cannot sever a blood connection through a legal will, but it does put some of the other facts of the case into a new light. Why does Mrs Sims not have a closer relationship with her grandson? Quite simply, it appears, because her own son did not wish for her to have one. There could be many reasons for this, and it is not in the purview of this court to speculate or pass judgment on that, but it is an interesting facet of the case.
Now we come to Jonathan’s own testimony. He is, by all evidence, quite an intelligent young man with strong preferences. That much was clear from his own words. And he certainly appreciates the complexities of the case. While he may have made a terrifying memory out of an innocuous conversation—in other words, Mrs Sims may not have meant her words during the phone conversation to which he alludes to have been as threatening as he clearly perceives them as—it is equally obvious that he does not wish to live with her, and that, were he to be sent to live full time with Mrs Sims, it may have a detrimental effect on his mental health.
Clerk, would you please have Ms Estep bring Jonathan back into the courtroom.
[A SHORT PAUSE WHILE THE CLERK GOES TO THE DOOR]
[THE CLERK RETURNS MOMENTARILY WITH MS ESTEP, J. SIMS, AND M. KING HOLDING HIS HAND]
Will the litigants in the case please rise.
[A. KING, G. KING, AND M. SIMS RISE]
In the matter of the minor child, Jonathan Andrew Sims, it is the opinion of this court that it is in the best interests of his welfare that his parents’ wishes be respected. However, I am also not unsympathetic to the desire of his grandmother to have her biological grandchild in her life. Therefore, I am recommending that Jonathan spend no less than three weeks of each year, to begin no later than one week after the final day of the summer term once he has begun his schooling, with Mabel Sims. However, I am otherwise awarding full physical and legal guardianship of Jonathan Andrew Sims to Antony and Gillian King. You may stop by the clerk of courts to sign the paperwork before you leave.
Jonathan, I hope you have a wonderful life ahead of you. You deserve it.
J. SIMS
Thank you, Your Honor!
[COURT ADJOURNED AT 1:19 PM]