A/N: Hi all – Here's one of the chapters all of you have been waiting for – the court hearing! I hope it meets your expectations. I took a different approach to it because I think it probably could have comprised several chapters in and of itself.
To anyone who works in the legal field – I know that I definitely took some creative liberties here, but doesn't every piece of fiction?
Enjoy!
The Settlement Conference had been both a success and a failure. It was a success in the sense that the Conference Judge had sided with them in every respect. It was a failure in the sense that neither Mikael nor Esther were willing to admit defeat and concede the case for custody of Graysn that they had initiated against him and Caroline.
This was even after Damon had come forward to prepare a follow up affidavit to his original affidavit revealing that Mikael had attempted to threaten his employment with tenuous allegations from unknown sources about his inappropriate conduct with women in order to pressure him into swearing the first affidavit.
This was even after the motion Judge had permitted transcripts of Elijah's journal entries to be admitted as evidence.
This was even after the motion Judge urged them to reach a settlement before substance of the motion was to be carried forward.
And so the summary judgment motion was heard.
The Judge had reviewed all of the affidavit evidence beforehand and was clearly knowledgeable about all of the content. He had grilled Stefan and Mikael about the substance of the material.
The Judge had also taken the opportunity to pose additional questions to the affiants in person and through video-conferencing – this was how many were questioned – Kol, Bonnie, Rebekah and Marcel among them.
Damon had also been questioned in this manner, his two affidavits of particular interest to the Judge. Stefan's Associate managed that aspect of the questioning for Stefan to avoid him being involved questioning his brother.
Elijah's journal entries – the validity of their substance – had also been a focus for the Judge, who wanted to determine the evidentiary weight to place upon them.
He, Caroline, and his parents had all also been asked supplementary questions to their extensive affidavit material by the Judge.
It had been a grueling two-day process. He and Caroline felt like zombies at the end of the first day. They avoided discussing the motion entirely - too drained and anxious about the whole process. While the settlement conference had given them the confidence they needed to get through the experience, they were still apprehensive about what the outcome would be given the motion Judge's seemingly stoic and impartial approach to the evidence.
They chose to focus on Grayson over the evening in between, spending time with him, trying to soak in every moment in case these moments would be their last.
He had stayed up late that night before the second day of the motion, staring blankly at the television until he was too tired to keep his eyes open, unable to sleep knowing that it was possible that he and Caroline would discover Grayson's fate going forward if the Judge was prepared to provide an oral judgment tomorrow.
When he climbed the stairs to his makeshift room in Elijah's office, he couldn't help but peer into Grayson's room through the partially open door - the room dimly illuminated by a night light. He entered the room quietly, taken off guard by Grayson's empty crib.
He entered the adjoining jack and jill bathroom to see the door to Caroline's bedroom open slightly. The alarm he felt by Grayson's absence was calmed as he glanced into the room. In the centre of the bed Grayson was nestled against Caroline on his back, his one arm stretched up above his head while the other was tucked down beside him. Caroline, also asleep, had her hand on Grayson's tummy, holding him protectively.
Sleeping with Grayson was not something he or Caroline wanted to make a habit out of, though they had done it on occasion when he had been particularly fussy through the night or sick. He smiled at the sight, though he felt sad, suspecting that it was Caroline who had made an exception to the rule on this particular night - needed to sleep next to Grayson. A part of him yearned to join them, but he refrained, closing the door before the light from the bathroom could wake them.
He had tossed and turned that night until the alarm on his phone woke him in the morning.
Being as today was not a day Grayson was scheduled to be in daycare, April and Camille would attend Court with Grayson and watch him from one of the anterooms, in case the Judge requested to question one of them any further. Anyone they could ask to watch him was involved in their court case and so Caroline had to close the store in order to accommodate Camille and April's attendance at court.
And now here he and Caroline were, running on fumes and coffee from a restless sleep the night before, their semi-formal clothing unable to hide their tired faces.
It was late morning; the Judge had completed his additional inquiries spurred from the day before, and invited Mikael and Stefan to make their closing remarks. Mikael would be first.
He avoided looking in his father's direction as he stood to address the Court. Caroline was looking straight ahead at the Judge, likely trying to decipher any of his expressions which may be favourable to them, though he had been extremely difficult to read throughout the motion.
Mikael cleared his throat, organizing a collection of papers in front of him. He could tell that his father was nervous, which was unusual as he himself was a lawyer, though inexperienced in family law litigation, and clearly unfamiliar with not having the upper hand.
"Your Honour," Mikael began. "My wife and I put forward this Application for custody of our grandson, Grayson, following the tragic deaths of our son Elijah and his wife, Elena. Obviously, no one ever expects to lose their lives so young, certainly no one ever expects that they and their spouse will lose their lives at the same time, leaving behind such a young child. As a result, this often precludes the foresight necessary to make adequate plans for such a scenario. Our son and his wife never expected that they would leave our grandson behind in such a tragic accident, and believing it to never be a foreseeable possibility they failed to make adequate plans for such a scenario. By their Wills, they appointed our younger son, Niklaus Mikaelson, and Elena's good friend, Ms. Forbes, the Respondents, as guardians of Grayson, and as the affidavit evidence and your questioning has shown, Your Honour, these appointments did not adequately plan for Grayson's future. Neither Niklaus, nor Ms. Forbes, are prepared to raise such a young child," Mikael paused.
He grumbled under his breath, trying not to let his father's comments get the better of him. Caroline too scoffed quietly as she listened to him.
"As you heard from the evidence, Niklaus resides in New York City, living as what you may label, a 'starving artist' struggling to provide even for himself. And, as you heard, he intends to divide his time between New York City and Mystic Falls if awarded joint custody of Grayson with Ms. Forbes. This means that he will likely be physically absent from much of Grayson's life, leaving Ms. Forbes to be essentially a single mother. Beyond that, as you heard from the evidence, particularly the affidavits from my wife, Mr. Tyler Lockwood and Mr. Damon Salvatore, he lacks the maturity and temperament to assume the important role of father to a son."
His father knew nothing of what it meant to assume the role of a father to a son, he thought bitterly. He scowled in response, a little louder this time, causing Caroline to place her hand briefly on his forearm, warning him to restrain himself. In response to Caroline's subtle hint, he cleared his throat to conceal his overt displeasure with his father's comments,
"Certainly my friend here has tried to undermine Damon Salvatore's evidence by pressuring his brother into submitting a further affidavit that calls into question his credibility, but the truth of his first affidavit remains unchanged and is bolstered by that of my wife's affidavit and Mr. Lockwood's affidavit. They reveal that when Niklaus's patience is tested he often reacts with extreme anger and violence - physically attacking myself, Tyler Lockwood, and Damon Salvatore on separate occasions. Beyond that, Damon Salvatore's first affidavit underscores that Niklaus would much rather spend his time womanizing and consuming alcohol as opposed to parenting."
"Bullshit," he whispered, frustrated by his inability to respond to his father directly.
"Klaus," Caroline said under her breath, cautioning him as his quiet remark seemed to catch the attention of one of the Court Clerks present in the courtroom.
"Ms. Forbes, on the other hand, while perhaps possessing a temperament for motherhood, she herself lacks the maturity and the time to raise such a young child. As the evidence shows, Your Honour, since the passing of my son and his wife, Ms. Forbes allowed herself to become distracted by the shallow attentions of both Damon Salvatore as well as Niklaus, as opposed to focusing her attentions solely upon Grayson. Even with both of these men in other cities for the foreseeable future, and their romantic relationships now seemingly at an end, the question remains as to whom she might allow to divert her attention away from her responsibilities next. Certainly it's not fair to put Grayson in the middle of that as we wait to find out? And as Ms. Forbes' own evidence reveals, we know that much of her attention will be devoted to her business, leaving Grayson in the care of his day care providers. Grayson should not be put in the middle of that. Grayson deserves to have people in his life who have the ability to focus their attention upon him."
Beside him, Caroline winced, cursing Mikael with the dismissive shake of her head.
"If we consider the Respondents as parents of Grayson together, we must also ask ourselves whether it is fair to put Grayson in the middle of the two of them. The Respondents have had their history together prior to the untimely deaths of Elijah and Elena; before they became the temporary guardians of Grayson, they were casual lovers. In fact, one of their encounters took place during the weekend of Elijah and Elena's wedding. And, when brought back together as Grayson's temporary guardians, it didn't take long for them to fall back into this irresponsible pattern of behaviour – putting their lust for one another ahead of their responsibility to Grayson. Now that their short-lived romantic relationship has apparently fizzled out, Grayson will forever be a part of that conflict. Certainly, it's not fair to put Grayson in the middle of their unconventional relationship."
It felt painful to hear his father summarize his relationship with Caroline in such a trivial and superficial way. Even if the nature of their relationship had changed, that didn't alter its importance to him. Though he held out hope that Caroline would change her mind about him romantically, he remained committed to co-parenting Grayson with her.
"While Your Honour chose to allow the evidence from Elijah's journals, as hearsay evidence, I urge you to place little weight upon them. Many of these entries were purportedly written when Elijah was young and unaware of the impact that his words might have into the future. They were written in a specific context – not mean to be extrapolated to our circumstances here. As for the other evidence, my friend has presented for your consideration, much of it from my other children, I urge Your Honour to consider their own personal motivations behind its content. Both my son, Kol, and my daughter, Rebekah, are displeased with my wife and I because we had previously withdrawn their financial support and they resent having to now support themselves."
He could only imagine what Kol and Rebekah's reactions would be if they were here in person to listen to what their father was saying.
"As for the remainder of the evidence presented by my friend, respectfully, those individuals have never interacted with me or my wife to truly know who we are as people, and I take the opportunity here to tell them. Over our more than thirty years of marriage, my wife and I have successfully raised six children, and over those decades, we have experienced our fair share of loss – losing both our young son, Henrik to illness, and recently Elijah. Our marriage has not always been perfect, but we have grown from the difficult times and have overcome them. It's this experience that makes us qualified to assume custody of Grayson and raise him into his adulthood."
His fists clenched and he bit his tongue, doing his best to withhold a sarcastic comment and stop himself from rolling his eyes.
"Finally, I urge Your Honour to consider this case appropriate for summary judgment and render a substantive decision. There is ample evidence before you to conclude that my wife and I should be given custody of Grayson without the need for a trial, allowing all parties in this case, and most of all, Grayson, to move forward and to have permanency. Thank you, Your Honour," Mikael finished, quietly retreating.
The room was silent as they waited for the Judge to finish writing several notes from his raised bench in front of them. When he was finished, he glanced up, looking at Stefan expectantly from over his glasses.
"Mr. Salvatore, I invite you to make your closing remarks before I call an afternoon recess," the Judge encouraged him.
Stefan stood from the table beside them, taking his turn to speak.
Both he and Caroline held their breaths, hoping that Stefan's closing remarks would have their desired impact upon the Judge.
Overall, Stefan appeared much more prepared and at ease with the notes he had prepared than Mikael had during his closing comments.
"Your Honour, contrary to the conclusion of my friend, I submit that the evidence clearly demonstrates that Elijah and Elena had the foresight, motivated by the birth of their first child, Grayson, to ensure that he would be adequately taken care of in the event of both of their deaths. While not a pleasant thought, it is one that all responsible parents must think about and prepare for and it is evident that Elijah and Elena turned their minds to this unfortunate possibility by specifically including within their testamentary documents – prepared just months before their passing – a guardianship provision. This provision entrusted the care of their precious son, Grayson, to Elijah's closest brother, Niklaus – Klaus – Mikaelson, and Elena's closest friend, Caroline Forbes, the Respondents. One can only conclude from these appointments, that the new parents, Elijah and Elena, both highly educated individuals, genuinely believed that the Respondents, together, were the most suitable individuals to raise their son, Grayson, in their absence," Stefan explained.
From the corner of his eye, he could see Caroline's eyes watering, and he had to look away so as to not be overcome by her emotion, thinking about Elijah and Elena and what their reactions would be to the circus Mikael and Esther had stirred up since their deaths.
"Unfortunately, one of a parent's worst nightmares befell Elijah and Elena one wintery evening while they were on their way to celebrate their first wedding anniversary – predeceasing a young child. As a result, the lives of Elijah and Elena's closest family, particularly those of their son, Grayson, and the Respondents, were forever changed in the blink of an eye. Surely, neither of the Respondents ever anticipated that they would find themselves here today before you, Your Honour, seeking custody of Grayson, nor did they ever want to be. But, when Elijah and Elena needed them the most, the Respondents came forward together, putting their own lives, and the plans they had each made for themselves, to the side to be there for them and to care for Grayson as Elijah and Elena wished that they would. The Respondents have faced their fair share of challenges over the last several months in assuming the role of parents to Grayson, not to be unexpected in the circumstances, however, Your Honour, the evidence before you clearly demonstrates, despite those challenges, why Elijah and Elena entrusted the care of their son to the Respondents, and not to the Applicants."
Though still anxious, he found reassurance in Stefan's words.
"Klaus sacrificed his career and his life in New York City overnight to move to Mystic Falls on a full-time basis temporarily upon the death of his brother and his sister-in-law. Klaus readily assumed the role of caregiver for Grayson alongside Caroline, and he independently carried out those duties during the days when Grayson was not in daycare, allowing Caroline the ability to maintain the operation of her business in Mystic Falls. During this time, he continued his work remotely and his career has thrived over the last few months. Far from being a 'starving artist' as my friend has suggested, Klaus's recent successes have afforded him the ability to plan for Grayson financially, and divide his time between New York City and Mystic Falls to ensure that he is fully present in Grayson's life.
Klaus has never purported to be perfect. He has not denied his past in this proceeding, as my friend here has tried to do with his own past and that of his wife. Klaus regrets those encounters with his father, Tyler Lockwood and Damon Salvatore, and I urge Your Honour to consider the circumstances of each of those occasions, wherein Klaus was intentionally provoked by each of those men with offensive comments about Grayson and Caroline. This is not an excuse, Your Honour, but context is key. Klaus has learned from his mistakes and that is an important lesson that he intends to pass on to Grayson, if given the responsibility to do so.
Your Honour, as the evidence overwhelmingly shows, Klaus , has grown alongside Grayson over the last six months and has proven that he has the maturity and capability to take on the responsibility that comes with having legal custody over a child. Contrary to my friend, I submit that Klaus is more than equipped to assume the role of father to a son."
Caroline looked at him with a smile, reaffirming what Stefan was conveying to the Judge.
"With respect to Caroline, I find my friend's final comments about her to be antiquated at best and sexist at worst, Your Honour. Caroline should not be expected to assume the role of mother to the exclusion of her work and future romantic relationships.
The evidence shows that Caroline is a successful businesswoman in Mystic Falls and has been a significant contributor to her community since she was a teenager – an ideal role model for any young child. Like all working parents, she has risen to the challenge of balancing her time between her work and her role as a parent to Grayson, relying upon daycare to assist her in this regard as needed. And, it would appear from the evidence submitted by Grayson's teachers, that daycare has been a positive experience for him and he has thrived from the early education and socialization that day care can provide to children. Caroline should not be shamed for this – Elijah and Elena relied upon the same daycare facility.
Finally, my friend has relied on tired stereotypes to incorrectly suggest that Caroline's past involvement with Mr. Salvatore and Klaus have impaired her ability to parent. I won't dignify that suggestion with a response, except to point out that, notwithstanding my friend's suggestion that Caroline lacks maturity, Caroline is here today alongside Klaus as the intended co-parents of Grayson, despite the end of any romantic relationship between them," Stefan said sternly.
"Thank you," Caroline murmured under her breath as they continued to listen, appreciative of Stefan's efforts to call out Mikael's inappropriate comments about her.
"I submit to you Your Honour that one of the reasons my friend has had to resort to inappropriate character attacks, stereotypes and sexist comments about my clients is to distract from the weakness of the evidence supporting his position. Again, if Elijah and Elena truly thought that the Applicants were suited to be Grayson's guardians, why did they choose to appoint the Respondents in their Wills instead?
The answer is repeatedly laid out in the affidavit material and Elijah's journal entries. As the evidence of Klaus, Rebekah, and Kol Mikaelson reveals, when not an absentee parent, frequently away for business and the pleasure of women who were not his wife, Mikael was a cold and abusive father. As the product of his own wife's affair, Klaus often bore the brunt of Mikael's temper. Esther, perhaps out of guilt over her infidelity, stood idly by, self-medicating with alcohol, often confining herself to her bedroom for days in Mikael's absence, leaving Klaus and his siblings to their own devices or the care of nannies. This material was not motivated by the Applicants' withdrawal of financial support, but by the toxic impact this experience had on them as individuals and their childhood. And, by all accounts, the Applicants have not changed. By the affidavits of Caroline and Mr. Salvatore it's obvious that the Applicants feel it is appropriate to use bribes and threats to obtain his desired results…"
"Your Honour!" Mikael interrupted as he shot up from his chair. "This is irrelevant," he said, clearly agitated by Stefan's comments.
The Judge's eyes widened at Mikael, as if to inadvertently suggest to him that it would be a good idea for him to sit down quietly.
"Mr. Mikaelson, I believe it's my job as the trier of fact and law to decide what is relevant and what is not," the Judge pointed out with a raised eyebrow.
"These accusations are all lies!" Mikael continued defensively, growing angrier as the Judge pushed back.
The Judge appeared stunned by Mikael's defiance and lack of respect, as did everyone else in the courtroom.
"Again, the weighing of the evidence and witness credibility is my job, Mr. Mikaelson, and I don't need to be told how to do it. Mr. Salvatore and his clients listened to your closing statement and I suggest that you sit down and do the same," the Judge instructed.
Mikael's expression contorted angrily.
"Yes, Your Honour," Mikael grumbled through his clenched jaw as he sat down submissively.
He struggled to hold back his look of amusement at his father being chastised by the judge.
"Continue, Mr. Salvatore," the Judge offered.
"Thank you, Your Honour," Stefan said with a nod. "If the affidavit material does not satisfy you that the Applicants are ill-suited to be given a seventh opportunity to have a child in their care, then Elijah's journal entries should. Having been recorded as Elijah's own private thoughts about his experiences and having no other motivation, the entries can ultimately be relied upon. Elijah's journal entries, documenting his father's abuse, his father's particular targeting of Klaus, his father's infidelity, his mother's addiction issues, and his own concerns about becoming a parent as a result, remain consistent and frequent over time. These journal entries are corroborated by the ample affidavit evidence before you, Your Honour. The answer as to why Elijah and Elena did not appoint the Applicants to be the guardian of their son, Grayson, is obvious when examining this evidence – While the Applicants may have the financial means to provide for another child, several times over, the evidence shows that they lack essential qualities to raising a child. Is it really fair to put Grayson in the middle of that – to sacrifice another innocent child in addition to his uncles and aunt who have come before him?"
Stefan paused, taking a moment to review his notes.
"What has also been made clear in the last several months, and as conveyed in the evidence, is why Elijah and Elena specifically appointed the Respondents, together as guardians of Grayson, over anyone else. Overnight their lives changed. Klaus lost his closest brother, Caroline lost her long-time best friend, and Grayson lost his parents. The Respondents immediately stepped up to support and care for Grayson as Elijah and Elena asked of them, and Grayson has flourished with them and their network of support – he's happy and healthy. As you specifically heard from the evidence, Grayson's learning new words every day, and just recently he's started taking his first steps. Despite the tragic circumstances, the challenges, and their unfamiliarity with one another, the Respondents have overcome these difficulties to successfully and cooperatively co-parent Grayson – something that is a bit of a rarity to see amongst even biological parents in this building. In the darkness, the three of them have found one another and they've become a family – perhaps an unconventional one, but what family is conventional? The Respondents love Grayson as though he is one of their own – to them, he's become theirs. Surely, after all the loss they have experienced and successfully overcome together, they deserve to stay together?
I submit, Your Honour, that the only principle that should govern your decision today is the best interests of the child, and that the evidence overwhelmingly demonstrates that remaining in the care of the Respondents is what is in Grayson's best interests, and in that regard, it is in Grayson's best interests for Your Honour to grant summary judgment in this case and provide the Respondents with joint custody to Grayson to the exclusion of the Applicants in order for them to move forward. Judgment in favour of the Respondents is a Judgment in favour of Grayson.
Thank you, Your Honour," Stefan finished, a sigh of relief escaping his lips as he tipped his head towards the Judge respectfully before sitting back down beside Caroline.
"That was great," Caroline whispered to Stefan, encouraged by what Stefan had communicated to the Judge.
Again, they sat quietly, waiting for the Judge to finish the notes he had begun to write at the conclusion of Stefan's statement.
"I thank both Mr. Mikaelson and Mr. Salvatore for their closing remarks. At this time, I excuse the court for a recess and we will resume not later than two o'clock this afternoon, at which point I plan to provide my decision and my oral reasons for that decision," the Judge informed the courtroom.
They all stood as the Judge rose from his bench to return to his Chambers. As he stood, his stomach dropped, knowing that in just a few short hours, they would know what their fate, and Grayson's fate, would be.
He was pacing anxiously in the expansive foyer outside of the courtroom, bouncing Grayson on his forearm to distract himself, as they waited for their names to be called over the PA system by the Court Clerk.
April and Camille had joined them over the lunch break with Grayson, deciding to wait out the decision as it would follow in the afternoon.
Camille had picked them up some lunch from a café down the street, but none of them had much of an appetite. His craving for a cigarette, however, was at an all time high and if he had one he would have gladly indulged himself.
Despite the boring and sterile atmosphere of the Court, Grayson appeared to be content, oblivious as to the fact that his fate would be decided today.
He and Caroline were there alone with Grayson waiting. Camille and April had left for the bathroom and Stefan was using the break time to make a few other work-related phone calls.
Caroline was staring out one of the expansive framed windows, absently, overlooking the entranceway to the Court down below and the busy street that enclosed it. She'd been quiet ever since they adjourned for the lunch recess. He knew that she was just as nervous as he was and afraid of what the judge's decision might be.
While Stefan was convinced the Judge's decision would be his refusal to grant summary judgment and order the matter be tried, he and Caroline were less certain. At best, the Judge would decide in their favour, at worst, he would decide in favour of his parents. Going to trial was not ideal as it would only prolong the process and double the cost, but at least that would give them more time to prepare and keep Grayson a little longer.
"At least it will be over soon and we'll know the next step," he pointed out, breaking the silence between them, trying to say something positive to reassure her.
It was true – anything was better than being stuck waiting for a decision one way or the other.
Caroline scoffed with her back still to him.
"We could lose him," she said, her voice shaky as she turned to face him slightly, her eyes trying to avoid looking at Grayson.
He could see tears streaming down her cheeks.
"We aren't going to lose him," he disagreed, trying to remain optimistic, despite knowing that Caroline's fear was entirely possible.
She wiped her eyes with her index fingers as she struggled to hold back her tears, which were still falling freely. Her cool demeanor from earlier was cracking under the stress.
"What if we do?" she wondered, the continued thought causing her to sob more intensely as she hid her face with her hands.
He debated over how to respond, not wanting to cross any boundaries.
"Come here," he relented, urging her closer towards him by extending his free arm.
She nearly collapsed against him, burying her face in his chest, using him as a shield to conceal her tears from passersby waiting for their own matters to be called in other Courtrooms.
As she continued to weep quietly, he allowed his free hand to rest across her back somewhat awkwardly in an effort to comfort her.
Grayson, still perched on his other arm and growing heavier by the second, reached for Caroline's hair that had been pulled back into a ponytail.
"Would all parties to the Mikaelson and Forbes matter, please return to courtroom #604, please? All parties to the Mikaelson and Forbes matter please return to courtroom #604," a woman's voice announced over the PA system.
She pulled back from Klaus, avoiding eye contact with him, their names being called over the PA system snapping her out of her moment of weakness.
Wiping her eyes, she kissed Grayson on the cheek, mustering a small smile at him as Camille and April approached from the washrooms to collect him from Klaus.
Stefan was heading for the courtroom doors from the opposite direction.
Reluctantly, Klaus handed Grayson to Camille.
"We'll be here waiting for the good news," April said encouragingly, trying to remain positive, seeing the worry etched across her face.
"It will be good news," Camille affirmed confidently.
She nodded passively, though she was not as sure as April and Camille were – or at least were trying to be.
Klaus stepped aside, allowing her to move towards the courtroom entrance first. He held the door open for her and she opened the second set of heavy wooden doors slowly, afraid to know what would be awaiting them on the other side, feeling like they were set to face their executioner.
The Judge was seated at the bench, so she bowed respectfully both at the door and then as she approached the counsel table as she had observed Stefan do previously.
Mikael and Esther were already seated expectantly, while Stefan was removing a pad of paper and pen from his oversized briefcase on wheels that contained the hardcopy contents of their file.
She took her seat beside Stefan and Klaus followed suit, seating himself to her left at the end of the table.
Appearing to tower over them, the Judge took a drink of water from the glass hiding behind his bench, clearing his throat afterwards as he sorted through what seemed to be extensive notes that he'd prepared.
"I would like to start by thanking the parties and counsel present for their submissions in the context of this Motion. I will be providing oral reasons this afternoon which will be supplemented later by the provision of written reasons with more detailed reference to the parties' material and relevant legislation and case law," the Judge began.
Every second that went by while the Judge collected his thoughts felt like an eternity as they sat there in silence, waiting for him to continue.
"As the parties and counsel may be aware, particularly in family law, the Court is increasingly making efforts to move away from lengthy and contentious trials that only serve to take resources away from the children they are focused upon, exacerbate conflict in the child's life, and prolong their exposure to instability. In this regard, the expanded use of summary judgment motions, where appropriate, have become a useful tool in minimizing, as much as possible, the often negative impact of the court process upon a child's life, by expediting the conclusion of litigation cases. While not always appropriate, summary judgment motions are generally effective when the issues raised in the motion will resolve the case and where there is enough documentary evidence to determine those issues. At issue in this case, is whether the infant child, Grayson Mikaelson, is better suited in the care of the Applicants, his paternal grandparents, Mikael and Esther Mikaelson, or, in the care of the Respondents, his paternal uncle, Niklaus Mikaelson and close family friend, Caroline Forbes. Both the Applicants and Respondents filed an abundance of valuable documentary and affidavit evidence. The evidence came from a variety of individuals: the parties themselves, immediate family members, family friends, co-workers, acquaintances, and third-parties who have observed Grayson first hand, including his CPS caseworkers, daycare teachers, and his swimming lesson instructor. Some compelling evidence also came directly from Grayson's deceased father, Elijah Mikaelson, through journal entries, which I previously allowed be admitted. Similarly, I have reviewed the original Wills of both Elijah and Elena Mikaelson, already having been probated by this Court and in the Court's possession. All of this evidence has been quite useful. Furthermore, being able to exercise my fact-finding powers under the expanded scope of summary judgment motions has enabled me the opportunity to question further some key affiants and weigh their credibility. As result, I find that this case is more than appropriate for summary judgment such that I am able to render a substantive decision this afternoon later to be accompanied by written reasons," the Judge explained.
Her breath got caught in her throat as she realized what would happen in a few short moments – Grayson's future would be determined by the Judge this afternoon. It was bittersweet. The uncertainty would finally be resolved today, but that uncertainty may not be clarified in her and Klaus's favour.
"Another procedural note I wish to make before I delve into my substantive reasons is to address the hearsay evidence I allowed to be admitted through the journal entries of Elijah Mikaelson, Grayson Mikaelson's father. The Applicants are correct to emphasize that this evidence is hearsay evidence – statements made outside of court and admitted to prove the truth of their contents. I won't belabour the law on hearsay evidence – as that has already been addressed. I have given this evidence equal weight to the other evidence produced. Having regard to Elijah Mikaelson's passing it is impossible to question him on his statements – if he were alive, we would not be here in the first place. Given the numerous journal entries made by him over a span of nearly thirty years, it appears apparent that the statements contained within the journals occurred contemporaneously with the events the entries document. While some of the entries contain multiple hearsay, many of those involved in those historical events have participated in this case through affidavits and questioning. I have no reason to believe that Elijah Mikaelson intended these entries to be used to misrepresent matters – journals, by their very nature, are intended to document the private, and often brutally honest thoughts of their authors. Mr. Salvatore provided the Court with a complete transcribed account of these entries so that there could be no insinuation that they have been edited for any malicious purpose. Finally, other evidence corroborates Elijah Mikaelson's keeping of these journals and much of their contents. In this regard, I do not believe the journal entries should be given any less weight than the other evidence presented to me," the Judge reasoned.
Glancing at Stefan, she watched his fist clenched victoriously and a wide smile formed on his lips. His reaction told her that he was quite pleased with what the Judge had just said, appearing as though they had already won the case before the Judge had given his reasons.
Stefan leaned towards her and Klaus. "That went as good as it could have," Stefan whispered to them. "It's powerful evidence in your favour that the Judge has equally considered with everything else."
Her heart was pounding through her chest and her body was tense with anticipation. She felt sick to her stomach. Stefan's words were very reassuring, but she didn't want to get ahead of herself – the Judge had not yet made his decision.
"With respect to my substantive decision, I'll turn now to summarizing the compelling evidence presented," the Judge began.
Swallowing hard, she tried to steady her breathing, doing her best to ignore the flips her stomach was doing in rapid succession, smoothing her anxious hands over her knees, which she had tried to stop from shaking out of nervousness.
She was momentarily distracted when she felt the warm palm of Klaus's hand fall over the top of her left hand. His gesture took her off guard and while she might have misinterpreted his motivations had they not been in the current situation they both found themselves in, she allowed herself to take comfort in his touch. Despite everything, they had been in this together from day one and no matter what happened after today, they would always be connected by this day and everything they had been through leading up to it. Klaus was the only one in this room who could understand the trepidation she felt in this moment. She could only imagine that he was going through much of the same emotions as she was, though he seemed much better at hiding it. Perhaps his reaching out was just as much about easing his own dread as it was about easing hers. Giving him an empathetic look, she turned her hand over, their palms together and she threaded her fingers through his, holding his hand tightly in hers as they both returned their focus to the Judge, awaiting his decision together.
"I don't think this courtroom is a place either the Applicant's or the Respondents ever wanted to be. In a perfect world, Elijah and Elena Mikaelson would still be here today to raise their little boy, Grayson Mikaelson, and I would not have to be here to make such a difficult decision for such a young child," the Judge sighed regretfully.
The Judge's sombre tone made her even more nervous than she already was.
"By all accounts, up until Elena Mikaelson's passing, she and Ms. Forbes had been like sisters, though not biological. Elena and Ms. Forbes grew up together and Ms. Forbes served as Elena Mikaelson's maid of honour at her wedding to Elijah Mikaelson. When Grayson Mikaelson was born nine months later, Ms. Forbes became like family to him. In fact, she was the one babysitting Grayson on the evening of Elijah and Elena Mikaelson's tragic accident while on their way to celebrate their one year wedding anniversary. Ever since that moment, Ms. Forbes has been by Grayson's side. She sacrificed for him, began to plan her life and business around him to provide for him in every way, the way a natural mother might do," the Judge recalled.
Her face felt numb, but she could tell tears were falling from her eyes once more as she listened to the Judge recounted the past.
"The evidence suggests that Mr. Mikaelson, who I will refer to as Niklaus to avoid any confusion, was not much different. He and his brother Elijah were very close. Despite the constraints of distance and his financial commitments in New York, he made the trip back to Mystic Falls shortly after Grayson's birth to be by his brother's side to celebrate the occasion. Elena and Elijah had already purchased plane tickets to visit Niklaus in New York with Grayson in the Spring – a trip that, unfortunately, never came to be. When Ms. Forbes called Niklaus with the awful news of the accident, he was on the first flight to Virginia. And, ever since that moment, he has also been by Grayson's side, putting his career on hold in New York to support his nephew, caring for him in the interim alongside Ms. Forbes, and has now chosen to divide his time between Virginia and New York to ensure he is able to provide for his nephew financially. He's sacrificed for Grayson and planned his life around him, much like a natural father might do," the Judge described.
She clenched Klaus's hand a little tighter.
"The Applicants have raised legitimate concerns about the ability of the Respondents to care for Grayson sufficiently. Both Respondents are self-employed which occupies a large amount of their time – and in Niklaus's case, his will require him to be in New York for a significant amount of time, an absence that will impact Grayson, as the Respondents have indicated that he will remain primarily resident in Mystic Falls with Ms. Forbes. However, this arrangement does offer Grayson stability. And while I will comment later upon the Applicants' underhanded means of procuring certain evidence, there is evidence from various sources to suggest that Niklaus lacks the temperament and maturity to be a suitable parent to a child. Furthermore, there is some concern about the impact the Respondents' complicated romantic history may have upon Grayson," the Judge listed.
Biting her lip as the Judge listed the weaknesses of their case; she had to look away, cringing as she anticipated the worst from the Judge.
"In today's society, most parents are required to obtain some form of paid employment to support their families – they do not have the luxury of staying at home to raise their children. The Respondents should be measured against that norm – not the ideal.
Based on all of the evidence, I find that over the last several months, Ms. Forbes has successfully balanced her duties as business-owner and her duties as a parent. She has done this even when Niklaus has been absent to attend to his responsibilities in New York. This not an easy feat, particularly for a woman who is often burdened more heavily by traditional stereotypes of what a 'good' mother should be. Yes, this balance has necessitated reliance upon daycare, but the use of daycare does not make one a bad parent, and if it did, many of the younger Judges and lawyers who work in this building every day would find themselves on trial by this court.
For his part, Niklaus has been able to successfully maintain his business from a distance over the last several months while often adopting the role of primary parent for Grayson when Ms. Forbes has needed to attend to her own work. Recognizing that this is not sustainable for his work in the long term, The Respondents have cooperatively agreed upon a parenting arrangement for Grayson that will see Niklaus dividing his time between New York and Mystic Falls. This is not an ideal arrangement from a conventional perspective, but that perspective also fails to acknowledge the ways in which parents, even in 'traditional' families provide financially for their children. Many are required to travel frequently for work, military families must contend with the prolonged absence of a parent, and some parents have multiple jobs which can result in significant absences even though they may work close by. These parents are not seen as 'less than' for providing for their children in this way and their children are accustomed to it.
What is important to me is that the Respondents have demonstrated that they will be able to provide for Grayson – beyond what may be available to him through his inheritance from his parents. In particular, I note that in taking on the role of non-residential parent, Niklaus has voluntarily committed to providing monthly child support for Grayson based upon the Child Support Guidelines and his estimated income, in addition to the extra costs he will have to incur to exercise his parenting time with Grayson.
What is important to me is that the Respondents have demonstrated that Grayson will be well-cared for notwithstanding those responsibilities and the absences necessitated by them. In particular, Niklaus has committed himself to frequent trips between Mystic Falls and New York. When Grayson reaches school age, the parties' have devised a parenting schedule with the advice of a parenting coordinator that will also see Grayson travelling to New York to spend time with Niklaus over his school breaks – particularly in the summer. Advances in communication technology will also help to ameliorate any negative effects that might result from any prolonged separation between Grayson and Niklaus. These arrangements are not unusual for separated parents who reside in different locations.
In regards to their relationship dynamics and its potential prejudicial impact upon Grayson, both of the Respondents have been quite forthcoming with respect to the romantic aspects of their relationship. A brief portion of this relationship unfolded prior to the birth of Grayson and the tragic events that have necessitated this case, and therefore, I will not focus upon that. At that time, both Respondents were consenting adults who did not have the commitment of a child to consider. The portion of this relationship that unfolded after Elijah and Elena's passing deserves more attention. Almost like a plot from a bittersweet movie, it appears that the Respondents found light in one another during this dark time and reconnected romantically with the intention of pursuing a long term relationship. Unfortunately, a happy ending was not in cards for the Respondents, and, as sometimes happens with romantic relationships their relationship was short-lived, perhaps due, in part, to how the practical realities of their circumstances unfolded. Despite this, I do believe that the Respondents resumed their romantic relationship with honest intentions for both themselves and for Grayson and did not foresee how it would end. While the Respondents may have hid the true nature of their relationship at its outset and while they should have turned their mind to the practical realities of their situation prior to reconnecting romantically, people are entitled to make mistakes. My concern is how the Respondents have learned from those mistakes and moved forward. In that regard, I am pleased to find that the Respondents have been able to act maturely in these circumstances, putting their love for Grayson before any negative feelings they may have towards one another, in order to come up with a practical co-parenting plan for Grayson – one I note, they have been successfully carrying out over the last few months."
As the Judge recounted their romantic history, it was hard not to focus upon Klaus's hand in hers and the bittersweet feeling it gave her. From the corner of her left eye, she could see Klaus's eyes looking down at their hands as well.
"And that's where I would like to focus my attention next – how the Respondents have carried out their unexpected roles as parents over the last several months. I am aided in that regard by evidence from the CPS workers who conducted two home visits with the Respondents and Grayson in the context of the separate custody application the Respondents brought pursuant to Elijah and Elena's Will, which has since been abandoned with the commencement of this proceeding. I am also assisted by affidavit material from Grayson's teachers and swim instructors.
During the first visit by CPS workers, the workers reported having interrupted the Respondents engaging Grayson with edible paints for children made with fruits and vegetables. While they reported that the house was somewhat unkempt, they noted that the mess consisted primarily of toys and baby supplies – nothing overt that would pose a safety hazard to a young child. They also emphasized that both the Respondents remained committed to ensuring that Grayson would grow up fully aware of his biological parents. The second visit did not go as smoothly, having regard to the Respondents' initial efforts to deceive the caseworkers as to the nature of their romantic relationship – before ultimately admitting to it. However, the notes leading up to that point are telling in that they reveal the Respondents settling into a routine with Grayson, balancing their responsibilities, and Grayson's development – At that time, he'd begun to crawl, sprout new teeth, attempt to talk, and most importantly, he'd begun to show signs of attachment to the Respondents.
Affidavits from Grayson's daycare teachers reiterate this. Grayson has grown over the last several months as expected of a child his age and daycare as afforded him the opportunity to socialize with children his age and other adults. His daycare teachers have also affirmed both Caroline and Niklaus's concern for Grayson, frequently checking in with them in this regard to ensure that he was on track with the other children his age.
Their concern for his wellbeing is also echoed by Grayson's swimming instructor – the Respondents followed through with the lessons paid for by Elijah and Elena, attending faithfully with Grayson – often together – and participating enthusiastically – so much so that Grayson has graduated and continued to the next level.
Evidence from Niklaus's siblings and Ms. Forbes' friends all seem to affirm the Respondent's commitment to Grayson's well-being.
In particular, nothing in the evidence produced by these individuals suggests that Niklaus does not have the temperament to care for a young child. In fact, this evidence indicates that Grayson has had a positive effect on Niklaus and that he and Grayson have formed a very strong bond. Despite his own childhood, Niklaus has demonstrated that he is quite capable of effectively parenting Grayson. This is in contrast to the evidence led by the Applicants that suggest that Niklaus has a violent disposition. Ignoring for a moment the questionable way this evidence was obtained – Damon Salvatore's affidavit, for example – I find that even if these incidents recounted in the affidavits are legitimate, none of the individuals involved in the interactions behaved appropriately, and most importantly, I find that these incidents are defined, in part, by provocation on the part of those who interacted with Niklaus. And while that's no excuse for Niklaus's role in the incidents, it does suggest that these are isolated events.
In any case, these incidents are not enough for me to conclude that it would be inappropriate for Niklaus to assume custody of Grayson together with Ms. Forbes. Neither Respondent has purported to be perfect, and from all of the evidence taken together, the Respondents should be commended for stepping up to care for Grayson in the unexpected circumstances," the Judge finished.
She smiled happily, the knots in her stomach beginning to unravel somewhat as the Judge's reasons unfolded in a direction that appeared favourable for them.
It was then that the Judge looked towards Mikael and Esther.
"Turning to an analysis of the evidence concerning the Applicants, I find that while the Applicants are financially secure and can provide an affluent lifestyle for Grayson, there is much to be desired. From a practical standpoint, the Applicants reside primarily in the United Kingdom and should they choose to remain there, this may require Grayson to undergo an uncertain immigration process, being as he is an American citizen. I must also consider the fact that both Applicants are advanced in age, such that upon Grayson attaining the age of eighteen, they will be well into their seventies. Though the Applicants have confirmed that they will have a team of hired support staff to assist them, I am inclined to believe that this support staff will become primary caregivers for Grayson as appears to have been the case with the Applicants' own children. While daycare for children may be relied upon by parents for work-related purposes, one cannot pass off the entirety of their important role and responsibility as a parent onto hired help," the Judge said critically.
Mikael looked particularly annoyed by the Judge's comments, seemingly ready to leap up from his seat in protest.
"On the record, I must also address the alleged underhanded means that the Applicants took to procure evidence against their son, Niklaus. While the credibility of Mr. Salvatore's evidence is weak, he indicates that the Applicants threatened him to produce his first affidavit. Similarly, Ms. Forbes indicates that the Applicants tried to bribe her to turn against Niklaus. Given the totality of the evidence regarding the characters of the Applicants, it's impossible for me not to conclude that the Applicants acted inappropriately in the context of this proceeding. Though as a lawyer himself, Mikael, should be well aware of this, I would remind the Applicants that impeding the administration of justice is a criminal offence and not behaviour becoming of two people seeking to become primary parental figures to a young child," the Judge chastised sternly.
Hearing the Judge, someone with more authority than either Mikael or Esther, call them out for their inappropriate behaviour was satisfying.
Mikael cleared his throat and stood in protest, demanding the opportunity to speak so that he could defend himself.
The Judge raised his hand. "Mr. Mikaelson, you had your opportunity to speak when I questioned you about this matter. Sit down," the Judge instructed.
Turning her head slightly to glance in Mikael and Esther's direction, she could see the bitterness etched on Mikael's red face as he seemingly bit his lip and sat down obediently.
"Finally, based upon the evidence from numerous sources involved in this case, including all of the Applicants' children, except for Finn Mikaelson, I find that both Applicants subjected their own children to psychological, emotional, and physical abuse throughout their childhoods, that was never properly addressed by authorities, buried behind their upper class appearance and the power of their wealth. The Mikaelsons are a clear and fitting example of the reality that even the most 'traditional' families are not always the most appropriate for children. The incidents recounted by the Mikaelson children, including by Elijah Mikaelson through his journal entries are awful and upsetting. None of the Mikaelson children deserved to experience what they did, regardless if they are biological children of the Applicants or not," the Judge emphasized, glancing directly at Klaus from his bench.
Klaus nodded in response, and she could see that he was visibly affected by the Judge's words of acknowledgement and validation, his eyes watering as he fought to hold back his tears.
"For this reason, I am not surprised in the slightest that Elijah and Elena – without any immediate family on Elena's side to select – by their Will, chose the Respondents to be the guardians of their son, Grayson, over the Applicants in the event of their deaths. Elijah did not want to risk his son experiencing the same abuse that he and his siblings were subjected to by the Applicants," the Judge acknowledged.
The Judge gazed downwards, considering the notes and documents in front of him before lifting his head and focusing his attention upon her and Klaus.
I, too, cannot risk, in good conscience, another child being exposed to such abuse. Based upon all of the evidence, and the clear and understandable wishes of Elijah and Elena Mikaelson, I find that it is in Grayson's best interests to honour those wishes and give the Respondents, both the privilege and responsibility, to continue what Elijah and Elena started – breaking what can oftentimes be a cycle of abuse and raising a happy and healthy baby boy. Therefore, I Endorse, on a final basis, that summary should be granted in favour of the Respondents with costs, such that Niklaus Mikaelson and Caroline Forbes are to share joint legal custody of the child, Grayson James Mikaelson, with the particulars of parenting and child support to go in accordance with the Final Minutes of Settlement previously entered into between the Respondents and filed with the Court. Any access between the child and the Applicants is to be at the sole discretion of the Respondents," the Judge declared fervently.
Unable to contain her emotion, she let out a delighted shriek and both she and Klaus leapt from their seats excitedly. Tears flowed freely down her cheeks out of happiness and relief as she wrapped her arms around Klaus and embraced him in celebration of their success.
Through their elated expressions, she could hear the Judge instructing Stefan and Mikael with respect to the issue of cost submissions, foregoing any attempt to try and settle them, obviously recognizing how important this moment was to them.
She took comfort in the feeling of his body against hers, tempering how badly her body was shaking from her anxiety and excitement. When she lingered a little too long, she pulled back, their cheeks brushing past one another, their lips nearly doing the same, though quickly enough for it to go unnoticed by the Judge and others in the courtroom.
Touching her lips discreetly, she concentrated on adjusting her clothing from her sudden burst of activity in an effort to regain her composure.
On the other side of Stefan, she could see Mikael stewing bitterly while Esther remained seated beside him, completely stone-faced.
She and Klaus settled in time to notice the Judge's attention fixed upon them once more.
"I caution you both not to take this responsibility lightly," the Judge cautioned, "Raising a child is the most important role either of you will have in this life, and while it will also be the most rewarding, it will also require immense sacrifice."
The nodded eagerly and understandingly.
"Thank you, Your Honour," they both replied to the Judge in turn.
After the Judge filed out of the back door of the Courtroom to his chambers, she felt better able to relax and soak in the moment, though a few lingering Court Staff remained.
Both she and Klaus hugged Stefan thankfully, knowing that none of this would have been possible without his advocacy, knowledge, and support.
"We owe you so much!" she exclaimed as they began to collect their things so they could leave and share the good news with Camille, April, and Grayson.
Stefan shrugged modestly. "I'm just relieved we were successful," he sighed. "You don't owe me anything. I did this for you and Grayson – and Elijah and Elena."
They were interrupted by the sound of Mikael's slow clapping from behind Stefan.
Stefan stepped aside, allowing Mikael to approach, though from a safe distance.
"You made a mistake, Mr. Salvatore," Mikael said to Stefan threateningly before turning to Klaus. "And it looks like you got exactly what you wanted, boy," Mikael sneered at Klaus angrily. "Well, at least until an appeal of this ludicrous decision is heard."
Her body tensed at the prospect of Mikael appealing the Judge's decision, when all she wanted was certainty and finality.
"How could you do this to our family?" Esther questioned all three of them, visibly upset, though she had no right to be.
She rolled her eyes as both Stefan and Klaus scoffed at their audacity.
Klaus stepped towards his parents despite Stefan's warning for him not to take their bait – in the courtroom no less.
"You both did this to our family," Klaus corrected his mother bitterly. "Stefan made no mistake. It was your mistakes that brought us here," he said to both of them.
Mikael growled under his breath.
"The only mistake I ever made was being unfaithful to my husband," Esther said scathingly, sounding completely brainwashed by Mikael.
An amused grin appeared on Mikael's lips in response to Esther's words.
"And the only mistake I made, was not slapping you and your siblings a little harder when you were younger to teach you some more respect," Mikael spat.
She winced, her heart aching for Klaus at his parents' hurtful words.
Before Klaus could react, one of the Court Clerks who was still in the courtroom organizing material from the Court file stood up from her seat and cleared her throat loudly.
"Sir! We are still on the record!" she announced seriously, informing them that the Court's recording system had not yet been stopped.
Mikael and Esther's expressions went blank.
She and Klaus scoffed at his parents, using that moment to make their way to the exit.
"Good luck with that appeal," she heard Stefan say to Klaus's parents with amused sarcasm, referencing the statements they had just made on the record.
She burst out of the courtroom doors excitedly, searching eagerly for April and Camille in the Courthouse foyer.
Spotting Camille and April sitting in a set of chairs in the corner with a wide-awake Grayson in Camille's lap, she rushed towards them.
Camille and April stood apprehensively as she approached. Their expressions relaxed once they noticed her smiling.
"We did it!" she announced to them happily. "We did it Monkey!" she affirmed to Grayson as she took him into her arms from Camille and kissed his temple.
"Yes!" Camille and April cheered gleefully.
"I knew you guys could do it!" April said proudly.
"This is amazing!" Camille affirmed. "I'm so happy for you!"
She hugged Grayson to her chest, her tears of joy quickly resuming, overwhelmed by the emotion of holding him. Turning back towards the courtroom doors, both Klaus and Stefan were approaching.
Though she didn't want to let Grayson go just yet, she wanted Klaus to share in the moment with him like she had. With that in mind, she handed Grayson to Klaus and he readily took him, bouncing him up and down in his arms gratefully, much to Grayson's delight.
"So, it's official then," Camille stated to them thoughtfully, "Grayson is yours."
She grinned at Klaus and Grayson affectionately.
"He's ours," she and Klaus acknowledged in unison.
A/N: So, what did you think? Are you relieved now? Please review!
Next Chapter: Stefan and Meredith follow up their marriage with a reception in Mystic Falls.
On a side note, I'd like to dedicate this chapter to a loved one I lost recently who was Grayson's age. It definitely made editing this chapter very bittersweet.