Terrytown had an annual softball game in the summer at the city park. That was where the local Little League games were played, and that baseball diamond with its backstop and bleachers made it the perfect venue for the traditional game. It was a family affair, kids against parents, and always brought a huge turnout.
Josh and Jack came along with three of their parents but only as spectators. Jack’s dad was entirely too busy to attend softball games. Josh’s father and mother came, but Mr. Anthony wasn’t an athlete. He did participate in the game, however. He was the home-plate umpire.
Because their parents weren’t playing—hadn’t, in fact, since the boys were eight—the boys were just spectators as well. They did have friends on the field, however, and this was a big event, so they were happy to attend and sat in the bleachers to watch the game.
Little League games drew crowds mostly consisting of the parents and friends of the boys playing on the field. For most of those games, the bleachers were quite empty. This game, the bleachers were full. This was the only time in the year that occurred.
The bleachers had been wiped down before the game. Unfortunately, only the top surfaces had been cleaned.
Josh and Jack weren’t sitting with their mothers. Their mothers were sitting together behind home plate, watching Mr. Anthony making a fool of himself, calling balls and strikes like an overly emotional big-league ump, to the enjoyment of the fans. This of course embarrassed Josh. He’d seen it before. Accordingly, he sat with Jack way down at the end of the bleachers where no one ever sat, except today.
They were on the top tier of seats. Directly in front of them was a young boy, about 4 years old. His name was Tyler. The game bored him, but the fans were exciting. He sat next to his mother, kicking his legs back and forth in front of him.
Forward and back, forward and back. Tyler’s legs weren’t long enough to kick the people in front of him. They were long enough, however, that when they swung backwards and they passed under the bleacher bench he was sitting on, they swung against the wasp nest that was just under construction there.
What happened next was a blur. Tyler screamed and then screamed again. People around him started swatting at angry wasps. Luckily, there were only a few as the nest was quite small. Tyler’s mother grabbed him, not knowing he’d been stung, just that he was screaming.
And then she felt him jerking in her arms, and she looked at his face. He was gasping, his eyes were large and terrified, and his color was changing as she watched.
“Help! Help me! He can’t breathe. Somebody help!”
She was frantic and probably would have started running around in panic mode except she was hemmed in by the crowd and standing close to the top of the bleachers.
“Ma’am, I can save him.” The voice came from behind her, and when she turned to look, she saw a small teenage boy standing next to a rather large one. The small one had something pointed in his hand.
“No! Stay away from my baby!” Then she turned away and yelled, “Please! Somebody! Help!”
Josh looked at the baby, now turning blue, now barely struggling to breathe, and then up at Jack. “Grab the mother and hold her still,” he said, and Jack, without having to think about it, did just that.
Josh leaned over and used the EpiPen on Tyler’s thigh, holding it there for a few seconds. Tyler didn’t even react to its sting.
Jack was having trouble holding the woman still, and when she saw what Josh did, she yanked Tyler away and cuddled him in her arms, shrieking, “What did you do to my baby? Stay away! Get away from us! Help! Somebody help my baby!”
People were all staring, some of them shouting advice. Then, Tyler let out another wail, and the woman looked down at him. He was breathing and decidedly unhappy about what had just happened. His color was coming back to normal, however, and there was no more gasping.
“What…?” The woman looked at Tyler, then back up. Jack had dropped his arms, and both he and Josh were just standing there. Josh was looking a little sheepish.
“I’m sorry,” he said. “But there wasn’t time to argue or explain. Your baby had an allergic reaction to the wasp stings. He had at least two—he screamed twice—and timing was critical. I have an EpiPen because I’m allergic to stings, too. Luckily, it’s one of the low-dosage pens. I still only gave him a half dose. You should still get him to the emergency room. Here, take this with you and show it to them.” He handed her the used pen, now back in its protective case. “Tell them what I did. But his color has come back, and he’s breathing again. Without the pen, he probably wouldn’t be.”
The young mother was gaping at Josh. Josh wasn’t sure what to do at that point. The crowd around them had grown because the game had stopped when the woman had screamed. What Josh wanted to do more than anything was escape. Surrounded by people and standing at the top of the bleachers, it just wasn’t possible.
People on the ground were calling out to people up in the stands, asking what was going on. A loud voice rose over the others. “A baby was stung and couldn’t breathe. This kid saved his life.”
««« »»»
The bailiff made certain all parties were present and the judge entered the courtroom.
He sat in the small family-court chamber, behind his raised desk, and addressed the people in front of him. “My obligation here today is to protect the interests of the child. The adults that have made his life so uncertain at this point can be left to take care of themselves. The child doesn’t have that luxury. He must be protected by the court. With that in mind and a reminder that this is a hearing, not a trial, and that I alone will decide the finding, the attorneys may proceed.”
Mr. Jenning’s counsel, Frank Ascori, looked at him and smiled, then whispered in his client’s ear, “See. This should be a piece of cake. The guy hates homos.”
Mrs. Jenning’s counsel just shuffled some papers.
“I understand,” the judge continued, “that alimony has been agreed. We are hear to talk about custody of the child and child support, if necessary. You may go first, Ms. Simmons.”
Mrs. Jenning’s attorney rose. She called Mrs. Jenning to the stand and received testimony about Jack, how he was doing in school, about friends, about his character. When she was through, Mr. Ascori received permission to approach her and asked, “Mrs. Jenning, are you an alcoholic?”
“No. I hardly drink at all,” Mrs. Jenning answered.
“Your honor, may I present for the record these photographs?” Mr. Ascori asked. “They clearly show the witness in a highly inebriated state. These are recent photographs. If the court would like, we have witnesses available here to testify where and when the pictures were taken and that they fairly represent the witness and the state she was in that night.”
Over Ms. Simmons’s objections of lack of foundation, the judge asked Mrs. Jenning to look at the pictures and asked if they were indeed recent photos of her and if she was drunk at the time they were taken. She looked at them, paled, and said they were. The pictures were then marked as Exhibit A.
Mr. Ascori attacked. “So you were drunk. Do you think you’re a responsible parent?”
“I was upset about the divorce—” Mrs. Jenning began.
Mr. Ascori didn’t let her continue. “I didn’t ask about motives, Mrs. Jenning. I asked if you think being drunk is responsible behavior for a parent. I’ll ask the judge to have you respond to the questions asked if you need guidance.”
Ms. Simmons stood. “Objection, your honor. He’s badgering and lecturing the witness.”
Judge Heartfeld nodded. “Sustained. Mr. Ascori, you know better. Don’t make me warn you again. Mrs. Jenning, please answer the question that is asked. Mr. Ascori, you may proceed.”
“Mrs. Jenning, will you answer the question?” Mr. Ascori asked.
“I think a responsible parent is a sober parent. But—”
Again, Mr. Ascori interrupted: “Thank you. So you agree you’re not a responsible parent. Moving on, do you think it appropriate for your son to spend a large portion of his days and many nights with a homosexual friend?”
Ms. Simmons was on her feet instantly. “Objection! That is outrageous! Your honor—”
Judge Heartfeld cut her off. “Sustained! Mr. Ascori, that is not the way to introduce evidence, and you know it. If you have evidence to support what you just asked and can show how it is material to this custody hearing, it must be introduced properly.”
Mr. Ascori nodded, not looking at all sheepish. “Begging the court’s pardon, I was merely trying to speed up the proceedings. I would like to call another witness but have not finished with Mrs. Jenning. I would like to reserve the right to recall her.”
“Any redirect, Ms. Simmons?” the judge asked.
“Yes, your honor.”
“You may proceed.”
Ms. Simmons rose. “Mrs. Jenning, is drinking a common occurrence for you?”
“No, I’ve not had much of anything to drink in over five years. That may be why that night the liquor hit me as hard as it did.”
“No further questions. Your honor, I have no further witnesses. I do have a number of affidavits as to Mrs. Jennings’ character that I would like to have entered into the record.”
“Mr. Ascori, do you have any objections?”
“No, your honor.” The last thing Mr. Ascori wanted was a parade of witnesses attesting to Mrs. Jenning’s character since he had
found no witnesses who would testify against her.
Judge Heartfeld told Mrs. Jenning she could step down but needed to remain nearby so she could be questioned further if called. Then he turned to the attorney. “Call your first witness, Mr. Ascori.”
“Please call Joshua Anthony to the stand,” Mr. Ascori announced.
Josh was in the courtroom. He was wearing a sports coat, slacks and a tie. He’d been subpoenaed to attend the hearing by Mr. Ascori. Ms. Simmons had prepared him for questioning but had no idea what he’d be asked. She told him to be honest, which was about the only advice she could give him.
Josh, nervous as he’d ever been, was sworn in. Mr. Ascori checked his notes, deliberately taking his time. He thought the longer he delayed the more nervous the boy would become.
Judge Heartfeld saw what was happening. “Mr. Ascori, didn’t you just tell us you were trying to speed up the hearing? Any more of this and I’ll excuse the witness.”
Mr. Ascori frowned, acting innocent. “My apologies, your honor. May I approach the witness?”
“Proceed.”
Mr. Ascori moved quickly toward Josh, a scowl on his face, and Josh pulled back into his chair as far as he could. Mr. Ascori stopped as close to him as he could get. “Mr. Anthony,” he began.
Josh sat up a little straighter. “My name is Josh. Calling me mister is silly. I won’t call you by your first name if you won’t call me by my last one. Deal?”
Mr. Ascori took a half-step back, completely taken off his guard. He’d expected fear and intimidation. Instead, he had a witness who, though obviously nervous, was not going to be bulldozed.
Judge Heartfeld almost smiled. “Mr. Ascori, please move on. Do you have questions for this witness or not?”
“Yes, your honor.” He turned to face Josh. “Mr. An—Josh, are you a friend of Jacoby Jenning?”
Josh nodded. “Yes.”
“Is he your best friend?”
“Yes.”
Mr. Ascori wrinkled his forehead in distaste. “Boyfriend?”
Ms. Simmons rose to her feet again. “Your honor! I strongly object. There’s been no foundation for that question, no relevancy established, and it’s an invasion of privacy. Besides, the witness is fifteen years old!”
Judge Heartfeld scowled. “Sustained. Mr. Ascori, my patience with you is getting short.”
Mr. Ascori wasn’t to be intimidated. He shot back, “Your honor, this goes to the heart of the matter before us. Mr. Jenning is fighting for custody of Jacoby because he doesn’t want him influenced by friends into becoming homosexual. To that end, it is necessary to establish the sexuality of his best friend.”
Judge Heartfeld wasn’t about to budge. “Mr. Ascori, are you contending that being a friend of a homosexual is somehow grounds for removal from his home?”
“Mr. Jenning feels undue influence is being brought on Jacoby to choose that lifestyle,” he asserted, “and it will benefit the boy, physically and mentally, to be taken from the ambit that now constitutes his existence.”
Ms. Simmons was still on her feet. “Your honor, that supposition by Mr. Jenning and counsel has no support in the law.”
Judge Heartfeld looked thoughtful. “Yet he is the parent, sharing equal rights with the mother and has cause to see the atmosphere in which his son is raised meets with his approval. I think I’ll allow this line of questioning to continue, but, Mr. Ascori, you’ll have to show how such an atmosphere is detrimental to the child. It is the child we’re protecting here, not the sentiments of the father.”
Mr. Ascori smiled. “Thank you, your honor. Mister, uh, Josh, are your and Jacoby boyfriends?”
Josh thought for a moment, then said, “Uh, no, I guess.”
Mr. Ascori scoffed. “You’re not sure?”
Josh shook his head. “We’re best friends. We’ve never spoken about being boyfriends.”
“Well, Josh,” Mr. Ascori asked, “are you gay?”
Ms. Simmons again rose. “Objection. Previously stated reasons.”
Judge Heartfeld shook his head. “I’ll withhold final judgment on the objection and the testimony it evokes till I see where this is going. Proceed, Mr. Ascori.”
Mr. Ascori looked triumphant. “Are you gay?”
Josh, his voice firm, said. “Yes, sir. I’m gay.”
Mr. Ascori, smiling, appearing victorious, rushed on. “And is Jacoby gay?”
Ms. Simmons hadn’t sat down. “Objection! Hearsay and totally irrelevant to this testimony.”
Judge Heartfeld didn’t look at her. “I’ll defer judgment on that. You may continue, Mr. Ascori.”
Mr. Ascori was giving Josh as hard a look as he could manage. “Is Jacoby gay?”
Josh shrugged. “He’s never told me so. You’d have to ask him.”
Mr. Ascori was undaunted. “Have you done sexual things with him?”
Ms. Simmons: “Judge Heartfeld! You can’t let this continue! Nothing has been said to show that how an answer to that has any bearing on who should have custody of Jacoby. He’s trying to besmirch this witness and pretend this has relevance to Jacoby. This witness is fifteen. Are you going to allow this to continue? Really?”
Judge Heartfeld grimaced. “You do raise a germane issue. I’ve allowed you to proceed without you showing any relevance to your questions, but I think you’ve gone far enough without that. Are you prepared at this time, Mr. Ascori, to show that whether Josh is gay or not or has been involved with mature activities with Jacoby Jenning has any relevance to his custody?”
Mr. Ascori became calmer and urbane, his tone persuasive. “Your honor, everyone knows that the homosexual lifestyle is a sinful, opprobrious, repugnant one, and that children need to be steered away from it, protected from it, if you will. Showing that Jacoby has already been beguiled by this boy makes it abundantly clear that putting him in Mr. Jenning’s care would be best for him. Jacoby must be completely separated from the perverse influence of boys like the witness.”
Judge Heartfeld looked straight at the attorney, and his voice hardened. “That, I’m afraid, is blather. It’s opinion, Mr. Ascori, and not very current or enlightened opinion. When you start an argument with ‘Everyone knows’, you’re asking for trouble in my courtroom. I was hoping for some statistics showing relevancy for the judgment you are seeking. I was hoping for some evidence or testimony by expert witnesses that the early teen years of development, if influenced by peers of alternate sexuality or an environment where sexual unconventionality existed, could be in any way harmful to someone. The lack of that implies that you were unable to secure such evidence or testimony. In lieu of such, I find your case far from compelling and more a witch hunt than persuasion.”
Mr. Ascori, looking uncertain now, rebutted with, “Your honor, surely you can see that the witness is and will continue to be a negative influence on Jacoby if the relationship is allowed to continue. I will be happy to find such statistics, such evidence, if given a continuance.”
Judge Heartfeld frowned. “But sir, you’ve said nothing to convince me that such material exists, and you’ve had months already to research it. Why don’t you sit down? I will ask Mr. An—” he stopped and smiled “—Josh a few questions myself, after a ten-minute recess. I would like to determine for myself how terrible an influence he may be.”
««« »»»
After the recess, Judge Heartfeld had his bailiff invite Josh into his chambers. He invited Ms. Simmons and Mr. Ascori in, too, provided neither of them said a word or did anything that might influence or intimidate Josh.
Then he turned to look at Josh, who was sitting in front of him. The two lawyers were in chairs in the back of the room.
“Josh, as I told the attorneys, my interest in this case is to do my best for Jacoby.”
Josh interrupted at this point. “Uh, what should I call you, sir? ‘Judge’ seems a little informal, almost like I’m being disrespectful, and ‘your honor’ seems better in the courtroom than in here. How would you like me to address you?”
The judge smiled. “I like it that you ask. That does show respect. I guess ‘Judge Heartfeld’ would work best, even if it is a mouthful.”
“OK, then, Judge Heartfeld, could you call my friend Jack? He hates the name Jacoby, and even his mother calls him Jack.”
The judge took a quick glance at Mr. Ascori and said, “Does his father call him that?”
“He has little contact with his father, and when he does, the man is usually telling him what he’s done wrong and how disappointed in Jack he is. They are very one-sided conversations with Jack doing much more listening than speaking. During these talks, which are more like diatribes, Mr. Jenning usually uses the name Jacoby. Just one more thing for Jack not to like about the man.”
“Jack doesn’t like his father?”
“No. As I say, they see very little of each other, but when they are together, it’s just one criticism after another. Over the years, Jack’s learned to stay away from him as much as he can.”
Josh shifted in his chair. “Look at what Mr. Jenning is doing now. He wants custody so he can send him to military school. He doesn’t want to live with Jack or be a father to Jack. He wants to take him away from his mother, and he wants to protect him from gay influences. Jack overheard him tell his mother that having a gay son would be bad for his image in the business community and that he’d get scorned at his golf club.”
Judge Heartfeld sat back in his seat. He avoided Mr. Ascori’s eyes, sure he’d read in them that this was all hearsay and inadmissible. He remained focused on Josh. In a softer voice, he asked, “Do you think you’re a bad influence on Jack?”
Josh shook his head. “I’m a good friend, just as he is to me. I help him at school and he gets mostly B’s and a few C’s. I get all A’s. I do my homework with him every day, see that he does his, and explain the things he has difficulty with. He helped me when I was younger and needed it. I’ve always been small. When you’re small bigger kids see you as an easy target. I was never a target because of Jack.”
Josh moved forward in his chair. “We’ve helped each other all our lives. If you asked him what kind of influence I was on him, he’d say… Well, you should ask him that, Judge Heartfeld. For myself, I hope you don’t decide he should be sent away. I’d hate that and would miss him. It would be even worse for him. I think it would be disastrous for him.”
Judge Heartfeld sat back in his chair. He thought for a few moments, then spoke to Josh again. “You don’t seem fazed by any of this. You stood up to Mr. Ascori in court, and you’re very calm now. Yet you’re fifteen. I’ve met a lot of boys your age. Not one of them has been as calm or in control of themselves as you are. Why is that?”
Josh paused before answering, then said, “I don’t know. I’m nervous. But I’ve always had pretty good self-confidence. That’s because of Jack. I relied on him, and now he relies on me, and we’re a pretty good team. I don’t get intimidated easily. My mother says I’m headstrong and too full of myself for my own good. She might be right. But I do think I make good decisions. I don’t shirk from doing what I think is the right thing. I think that’s important.”
“Like at the town softball game this year?”
Josh’s eyes opened wider. “You know about that?”
Judge Heartfeld laughed. “When Mr. Ascori listed you as a witness, I had my clerk see what he could learn about you. I don’t like surprises. So I discovered you saved the life of a toddler and did it against the wishes of his mother, who afterward, when the EMTs told her you’d saved the boy’s life, couldn’t thank you enough. I read about how the mayor gave you a good citizen’s medal. Now you’re a witness in a custody battle. You seem to have had quite a summer.”
Josh lowered his head. “I don’t really care about all that. I just want to stay friends with Jack and have him continue living with his mother and being my friend.”
Judge Heartfeld regarded him silently. Josh had lowered his head, but now raised it and met the judge’s glance. He did it without challenge, but without bashfulness, either. Eventually, the judge looked at the attorneys, then back at Josh, and said, “Unless you have something you want to say, you can go, and would you please send Jack in?”
“OK,” said Josh. “Oh, and would you try to remember to call him that. He gets ticked off when people call him Jacoby.” Then he grinned, a grin that lit up the room and underlined the fact that he was indeed only fifteen, and walked out.
««« »»»
Both sides in the hearing were told to return to court the following day when Judge Heartfeld would announce his decision. So it was that both boys, still dressed uncomfortably for them, especially so because it was summer, marched up the steps of the courthouse the next afternoon and entered the courtroom. Everyone who had been present the day before was there, and shortly thereafter, the judge entered.
“I have reached a decision. The plaintiff’s case for custody rested on the assumption that Jack would be better off under the care of his father to prevent him from associating with a gay friend. No evidence was given to support the presumption that that association was harmful, and the assumption rested on the supposition that this court would find for the plaintiff because of the prima facie facts.
“I have interviewed both Jack, the child at the center of the custody dispute, and the one witness, Josh, who was presented to the court as an example of the undermining influence Jack was experiencing and would continue to experience.
“I have found both boys credible, mature for their ages, and see no reason to change both their lives based on the opinions given as the reasons for doing so. I therefore give full custody to the mother, Mrs. Jenning. No visitation rights are granted, though this decision can be appealed to the court if they are wanted. Also, child support will be decided after an investigation determining need, and both parties will be informed of the finding.
“I want to say, in closing, that these are two remarkable and well-adjusted young men, and it would be both cruel and irresponsible to separate them.”
««« »»»
Jack and Josh were jubilant when they left the courthouse. The first thing Jack did was hug his mother, and whisper in her ear, “I’m gay.”
“Of course you are,” she laughed.
“And I love Josh.”
“Of course you do.” She was still laughing.
Then he hugged her again and walked back over to Josh, who was waiting, a huge smile on his face. Then Jack did something he’d wanted to do for years. There was no longer any reason not to. He hugged him on the court steps, in the middle of town in the middle of the day, for the world to see, then took hold of Josh’s hand and, holding it, walked back down the steps and down the sidewalk to where their car was parked, not letting go.