affadavit for more time to answer

FAMILY COURT OF THE STATE OF NEW YORK
COUNTY OF ONONDAGA

In the Matter of a Proceeding under Article 6
of the Family Court Act.

ADRIANNE PHILLIPSON,

Petitioner,

- against -

JOHN MURTARI,

Respondent.

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State of New York ) County of Onondaga ) ss:

JOHN MURTARI, being duly sworn, deposes and states:

I am the petitioner in this action, and I make this statement in support of my request for denial of Petitioners request to relocate.
This affidavit also supports my request for changes in the present Custody Order due to changes in circumstance since the Trial.

Relocation Detrimental to Best Interest of Domenic

During approximately the last year, Domenic has been with me every other weekend for 4 days, Thursday-Monday, and 5 weeks in the Summer. Domenic has developed a very strong bond and preference with me during this time.
Even as the "minority time" parent I have watched my relationship with him grow much stronger. During transition times is eager to come to me. When our time together start we hug and kiss. He is very animated and ready to talk about trucks, trains, and sing songs in the car.
When we are together he asks (quite on his own) how long he can stay, and why he can't stay longer, and why does he have to "go back to Mom's." I try to explain to him Mom wants to see him to, but Daddy hopes we will have more time together some day.
When I have brought him back to his Mom, he is usually quiet and sullen. And on two occasions during the last month started to cry when she came to the door on our arrival at her apartment. I would try to take the time to explain I had to go, and his last questions are always, "Daddy, when am I going to see you again?"
Judge, please let me be clear, I do not claim the Petitioner is actively abusing our child, but he is suffering simple neglect as she pursues her own goals and interests. He is left at daycare in the morning, stays at "aftercare" in the afternoon, and then often has a baby sister at night. How can he form a sense of "family"? How can he feel a strong bond with a parent who drops him off at so many places and with so many people? How can he feel secure and begin to master his environment?
Is it any wonder he feels more comfortable and in control when he visits "Daddy", and we go to Grandma's house, and can visit our relatives (I have a large extended family in the area) that have children his age and that he knows. He gets to spend a lot of time outside just being a kid in a good neighborhood.
He gets to go to Church with Daddy on a regular basis. He helps Daddy make sandwiches for a homeless shelter. Domenic finds consistency, stability, and most of all a loving environment and good example.

Petitioner acted in Violation of the Current Custody Order.

While claiming to understand the value of Domenic's relationship with his father, the actions of Petitioner have been otherwise.
The current order states, "… Defendant shall be allowed reasonable telephone contact with Domenic when at the Plaintiff's residence…" Since Petitioner installed a "caller ID" system in her apartment I almost never get an answer and have to leave a message for Domenic on the answering machine. While I did have some luck early on talking to Domenic through baby sitters on some evenings, they also appeared to stop answering the phone when I would call. I normally call once a day, and have tried to find out from Petitioner when would be a good time to reach them - and have gotten no response. Currently Domenic asks me if I call, and I am beginning to fear that his mother plays very few of those messages for him. What type of attitude would prevent a parent from playing phone greetings to their child from another parent he loves?
The current order states, "Defendant shall be permitted to take Domenic to church on all Sundays and is allowed two hours to do so … except … on other special occasions in which Plaintiff is out of town." In the past year the large majority of these times have been canceled by the Petitioner due to numerous "special trips". I often would get notification in a message as late as the Saturday night prior. I have told the Petitioner there are also Saturday afternoon services, and that the time is flexible. I have gotten no response.
The order gives me 5 weeks with Domenic during the summer, and the petitioner 4 weeks. It states, "…the Plaintiff must notify the Defendant by May 1^st of each year as to when the summer Japan trip will occur…" The Petitioner has exerted total control over the summer vacation schedule, and this year disregarded my requests to find out what the schedule would be. I did not find out until May 23^rd.
The order states, "…Defendant shall have visitation on alternate weekends from Thursday at 5:00 pm to Monday at 7:00 pm…" Last fall I was notified by the Petitioner the time was going to change to 7PM on Thursday till 9PM on Monday. I did not like the late times, at bedtime, and especially with winter coming. My schedule is flexible and I looked for an alternative - none were presented. The worst part of it all was the Petitioner was usually not there to receive Domenic at 9PM, it was a sitter, and Domenic would usually cry terribly as I left him - it was an awful experience, and should have been avoidable!
I have attempted to address the above items through letters and conversation with the Petitioner, her Attorney, and the Law Guardian -- but little seemed to happen.

Petitioner is Disingenuous in her Claims and Isolated.

I must question whether the desire to move is generated by financial/educational concerns, or a simple desire to escape the area and an environment in which she appears to be "annoyed" by the growth in Domenic's relationship with me.
Regarding the "support arrears". I have been paying support at the original level that was specified of $60/week (and which was based on my actual income). Those payments have been made and are current. As part of the Divorce Judgment that amount was increased to $120/week, retroactively, based on imputed income if I were to abandon my business (which has given me the flexibility to be with Domenic). While the entire matter is still pending Appeal at the Court of Appeals, there is also a hearing scheduled in front of a Hearing Examiner (this same appearance date), to address this issue.
Petitioner is a Japanese Citizen and her family in Japan is quite wealthy. She is able to travel back and forth to Japan at will, and is driving a car that is only a couple of years old. Her lifestyle has not been "limited."
The Petitioner earned a Bachelor's Degree from S.U. in Photo-Journalism prior to our marriage. During the marriage she earned a Master's Degree in Piano Performance. Now there is a jump to translation? Respondent has not had time to verify the Degree program, or to determine the availability of a similar program from one of the many institutions in the Central/Western NY area.
It is Respondent's belief Petitioner has isolated herself from many common friends we had during the 8 years of marriage prior to filing for Divorce. Her conduct, as exposed during the prior Trial, showed her emotional and financial involvement with another man just prior to the "divorce." Her steadfast refusal to allow a normal relationship to develop between Domenic and I is without warrant, and few people support the "scorched earth" approach she has taken.

Eviction from Home/ Holy War?

The Petitioner forced my eviction from the marital residence (she had moved out and I had stayed there during the Divorce and Appeal preparation). I do not understand their motivation to drive me from the home, where I was making a mortgage payment of $713/month, and instead leave it empty pending sale. It gave Domenic continuity in the same home environment he had always had. The house has been empty since then.
Petitioner enforced the eviction on the 17th of December, just 8 days before Christmas. Domenic and I had already decorated and put up a tree. When the Sheriff's deputies arrived there was NO anger, NO violence (Domenic was not present). I just told them I could not in good faith walk out of that home and they would have to arrest me. I did not make bail and waited a week in Jail before being released on my own recognizance, the charges were later dismissed.
Judge, the most difficult part of it was not seeing Domenic that weekend. I think what the Petitioner was trying to say is when she told Domenic he would not see Daddy that weekend he was very upset and broke into tears.
This is not a "Holy War". I feel I am a loving father, a man of integrity, and one who cares about his community. I have shown my caring through involvement in local politics and also through a long history of community service to the elderly and homeless. I try to practice what I preach. I seek an equal relationship with my Son, as being in his best interest, and in pursuit of that goal am willing to expend a great deal of effort (for what else do we have but family?). The record during this entire proceeding has been clear. I have treated all concerned with respect and courtesy. There has never been an outburst of anger. With humility I recognize I may be entirely at fault here, although I do not believe that to be so. I do not seek a reversal in Custody roles, and deny the Petitioner access to Domenic, but just a fair and equal relationship with him.

Emotional Stability of Petitioner

In the past year evidence has continued to mount which forces me to question the Emotional Stability of the Petitioner. Her cold hearted pursuit of destroying me as the reason for whatever current pain she has in her life is not healthy. She not only evicted me from the home, but also Domenic, why? The many tears Domenic has shed during transition time back to her could have been avoided with just a bit more cooperation on her part, but no. Even now, she speaks to him primarily in Japanese for the brief moments we are together.
She denies me more time with our child, while being so "busy" she prefers to leave Domenic with others.
I note mounting resentment on her part towards Domenic's reluctance to return to her. On two recent occasions she closed the apartment door while I was holding him crying, and told us to "call her when we were done."
Most recently my 82 year old mother's bank account, with her life savings of $5,500 is under thread of seizure because my name was also on the account. The account had been disclosed during Trial. The Petitioner is certainly aware of my mother's very limited finances. I spoke with both her and her Counsel after hearing of this, and was told it was a "consequence of my actions."
The summation of these actions has mutual friends scratching their heads in disbelief. Alienating the Petitioner from support as she tries to rationalize this behavior, while refusing to acknowledge any personal responsibility for potential adultery during the marriage.
The move to California is an "escape". And I have strong fears about the effect on Domenic. I have accepted what has happened, and can still see the good in Domenic's mother and share that heritage with him as he grows.

Caution Regarding Conduct of Professionals

The entire Supreme Court Judgment is still pending Appeal to the Court of Appeals. I expect within a few weeks they will decide whether to hear the appeal. This proceeding has made me cautious about the conduct of "professional".
One of the Petitioners Psychologist's was given a letter of reprimand by the Psychological Association for unprofessional conduct in this matter. I watched the Law Guardian distort direct oral and videotape evidence presented during Trial in his report.
During the recent Appeal to the Appellate Division, Opposing Counsel, Ms. Walsh, made misleading statements that were not supported by the Record in her Brief. The Law Guardian, Mr. Lupia, in his brief written statement to the Court stated his support for the Brief submitted by Ms. Walsh.
In my Reply Brief, I noted those misleading statements and brought them to the attention of the Appellate Court.
During Oral Argument, the presiding Judge (Justice Pine), asked Ms. Walsh if she had made statements that were not supported by the Record. Ms. Walsh responded, yes. Justice Pine then remarked, in what appeared to be annoyance, that she too felt the statements were not supported by the Record (and she appeared annoyed).
I had always thought that type of thing was a definite "no-no" in Appellate practice. I was absolutely surprised by the unanimous affirmation of the Judgment - and also surprised the Memorandum of the decision contained no reference to her conduct.
I have included the Briefs to allow the Court to form its own opinion regarding this conduct. They also contain a legal history of the case.

Toilet Training/Sleeping Habits

While Petitioner is accurate in describing some of these items, she fails to disclose that much of this behavior may be attributed to her own actions.
The issue of "toilet training" came up last Spring when in a brief communication prior to dropping Domenic off at my house, I was told "he was potty trained and didn't need diapers any more." I assume this "training" took some period of time, but I was not aware of it.
When he arrived that weekend I took a congratulatory approach with him with the assumption he would use the "potty". He appeared reluctant and just "held it" till finally he wet his trousers. He certainly did not appear to be ready, and I did not want to force the issue with him, so he returned to diapers.
I spoke with Adrianne about this, and suggested perhaps we both go in to talk to his pediatrician about what was going on. She consistently refused any type of joint meeting to discuss it. I asked her if she had any suggestions and was told it was "my problem, that he was fine with her."
I finally did talk via the phone with Dr. Farachione, and explained what had happened, and agreed on a common approach of positive motivation. She said she would talk to Adrianne, that maybe she was pushing the training a little too hard.
It is also my belief during this time he would "hold it" at daycare also, and with others. It also seemed Adrianne was continuing to press Domenic that he had to use the potty at Daddy's House (which I did not know).
Later, he told me he would use the potty when he was 5 years old. I told him okay. And after his 5^th Birthday when he came over, he started using the potty and has been fine since.
His normal pattern at the House was to go to sleep in his room after I would read him a story and sing him a lullaby. During last summer, in response to what I assume was a change in his environment with Mom, he would wake up more often at night and call for me.
I would quite him down and put him back to sleep, he wanted to be with me, and eventually I put him down in my room. It is still the same routine, and I say some night prayers with him. But occasionally he will either grab my hand, or ask me to wrap my arm around him as he goes to sleep.

Preparation for School/Summer Vacation

Domenic should be starting Kindergarten this fall. I am concerned regarding the Petitioners plans for school and her location in the City School District.
I presently am living in the Village of Baldwinsville, the school is in my backyard. I have a Cousin who lives only a few minutes away and her kids (both around Domenic's age), are going to the same school.
One bedroom of the Apartment (upper half of a house), has my home office. But that could be relocated nearby if necessary to make room for Domenic so he could have his own room, and be in a better neighborhood than where he is now.

Request for Relief

Assigned Counsel - I am presently in active search of Counsel to represent me for the appearance. My inability to pay a "retainer" and limited financial means is making this difficult. I ask the Court to assign Counsel due to my limited resources. The Appellate Division did grant "poor person" status for prosecution of the Appeal. I have no desire to represent myself in this matter.
Joint Legal & Physical Custody of Domenic - I have been willing, and am still willing, to meet the Petitioner half-way on this most contentious issue. She is his mother, and I truly recognize the role she plays in his life. I have seen Joint Legal Custody work where the Parents must both be informed of decisions regarding the child, but depending on the area at issues (academics, extracurricular, medical…), one of the other is given tie-breaking authority. Domenic's best interest would be served by this.
Appointment of a New Law Guardian - This matter needs a "fresh set of eyes" to make a fair recommendation to the Court. The Respondent hopes that a fair evaluation and recommendation may result in all this being settled without trial.
Modification to the Present Order - That it specify "live" phone contact with Domenic or conversation through an adult answering if he doesn't come to the phone (he appears to have an aversion to talking to anyone on the phone). That it specify that if a Sunday Church visit is canceled, it MUST occur on the next Sunday visit, and the time lost will be added to that visit, i.e. 4 hours. I hope this item can be specified as soon as possible in a temporary order.

____________________

JOHN MURTARI

Sworn to before me this

11^th day of June 1998.

______________________________

Notary Public