What happened during the Appeal.

The Court schedules time to hear Oral Arguments, and they are open to the public. The session usually starts at 10AM and ends at around 12 noon. On the day I was there they heard about 15 cases! First the attorney for the Appellant speaks, and then the Respondent. The Judges were quite interested, and usually interrupted with questions, i.e. they were familiar with the facts.

When called, I presented my brief argument below, and all the Judges appeared to be quite attentive; however, only the Presiding Judge asked questions (which led me to believe the other Judge’s had not yet really reviewed the briefs -- which was a disappointment!).

When I made my remarks about gender equality—one of the Judge Boehm did remark that, "well, we usually try to maintain stability for the child, the home environment and neighborhood..." (he obviously had not read the brief). I responded a bit later by using the facts in my case, where I stayed in the marital home, nice neighborhood, and big family—and asked why didn’t that happen here

They made no direct remarks about what they thought. Probably the MOST SIGNIFICANT item for me was that the Presiding Judge, Justice Pine, knew my wife’s attorney had lied about the Record of the Case in the briefs she had submitted (a real no-no in appellate law). After I sat down, my wife’s attorney got up and started to talk. The presiding Judge asked her, "Counsel, did you represent items in your Brief which are not supported in the Record"—the response, "Yes, your honor". The Judge, "Yes, that’s what I thought from my review."

Judge told me they would make a careful review of the record before reaching a decision.

OVERALL— I walked out of there fairly confident there would be a change in the status quo. I felt it was a good experience. I had been so used to irrational orders, that it was a surprise to talk to people with "common sense" and an objective attitude about things. When the Order cam in the mail, it was a real shock. I then began to realize that probably only Judge Pine had some understanding of the facts, and had decided it was best to just leave things alone (nevermind all the procedural errors that had occurred).

OUTLINE PREPARED FOR ORAL ARGUMENT

-- there were interruptions during the presentation and a few items were left out, but this should give you the "flavor" of the argument.

I. INTRODUCTION

A. Pleased to be here . I want you to know that I feel both honored and very, very fortunate to have the ability to address this Court.

1. JUSTICES - You know this case has an extensive record, including hard video evidence which has allowed you to have a clear understanding of the issues and the people.

2. But for all this detail, in my brief prepared remarks - I want to focus on some of the broader issues presented here.

B. JUDGES - This case should have settled, Domenic should have been able to enjoy both of his parents and his home... What happened here?

C. In answer to that question, I want to share with you just three images drawn from our strongest traditions.

II. We hold these truths to be self-evident: that all men are created equal; that they are endowed, by their Creator, with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.

A. We know that the words "life & liberty" certainly have found strong protections within our tradition - but what about happiness -

AND what purer and more genuine happiness can be found than in family, and in the relationship between parent and child. What a joy to be able to hold your child and watch them grow - What a joy to hug your parent, and know they are there for you.

B. Should we not give the strongest presumption that both parents should have equal access to their child? Should we not require the highest standard of proof?

A. How easy should it be to separate a parent and child?

As easy as it seemed to the Law Guardian, who in a preliminary report recommended a reduction in time to once a week and every other weekend? Even though personal observations showed nothing wrong?

As easy as it was for Dr. Hoenig, an experience psychologist, to condemn a parent based solely on information presented by their spouse (and who was later given a letter of reprimand by her peers).

As easy as it was for the Plaintiff to appear to meet a burden of proof based on a "preponderance of the evidence" - was this spouse really "cruel & inhuman"?

B. CONVERSELY, How hard should it be to keep a relationship with your parent child.

As hard as it was for Mr Murtari who didn’t have the money for a lawyer to contest custody - who had to struggle with law books, and to finally have recourse to this Court - How many poor parents can be expected to do that ? How hard did he have to labor to show:

a) Extensive record of Community and charitable involvement.

b) A lively faith and participation in his Church.

c) Extended Family

d) A wonderful Neighborhood for Domenic to grow

e) Video Tapes.

f) Two Parent Involvement.

As hard as it was for little Domenic - who was torn from his home and parent (not understanding why) - who has shed many tears AND as the RECORD shows -- to have to cry at daycare when he wanted to go with daddy.

III. The second Image - Lady Justice - holding the scales on which "facts" are balanced, and with eyes blindfolded. Paying respect to no person.

Justices, I submit to you this was a case in which Justice was not "blind", that in the way this system has evolved:

Mr. Murtari was handicapped appearing "pro se". He understood that he wouldn’t be afforded special treatment, but he may not have gotten fair and equal treatment.

I ask you to just reverse the "sex" of the parties, it is difficult to imagine a similar pattern of decisions. We don’t use the "law of averages" when determining If a person of a particular race is guilty of a crime - we should not use averages in family law.

IV. FINAL IMAGE --- An old testament passage - "Make justice your sacrifice and TRUST IN THE LORD." What does that mean - how can "Justice" be a sacrifice.

A. It is when we realize our limits as people, and that our rules of evidence, cross examination allows us to do the best we can. For some reason in family law, we like to believe allegations because proof is hard to get - but unfortunately it just does not work, and it encourages such allegations. It calls upon ALL the participants to be HONEST in their abilities, and in their participation.

B. HONESTY

a) Dr. Black - wanted to hide those test results, didn’t want to be recorded - is this due the respect of "science". Defendant also claims she changed her report under influence of the Law Guardian. But the Plaintiff was able to put her report into evidence - without having to worry about cross examination.

b) Dr. Hoenig - was so happy to testify and give "official" credence to hearsay - but would later accept a letter of reprimand from her peers.

c) Mr. Lupia --. Who represented little Domenic, the innocent. Somehow did not like Mr. Murtari as a parent

but didn’t have any real facts to base it on. The Briefs are clear about his conduct - these were not honest mistakes, but clear distortions of the process and evidence.

a) Plaintiff - does the Respondent’s Brief do Justice to the System - or does it indulge in fabrication.

b) JUSTICES—WHY DID THESE PROFFESSIONAL - WITH MANY YEARS OF EXPERIENCE, DO ALL THIS - because it works! --

AND IT SHOULD NOT WORK.

V. CONCLUSION

A. ACCOUNTABILITY - Essential to any system - how very important is the Jury.

B. Overturn the entire Judgement

1. Restore TWO parents to Domenic with equal physical and legal custody. When there is disagreement in different areas, assign a parent to act as "tie breaker".

2. Plaintiff wants to sell the home, has no interest in returning to the Neighborhood. Allow Mr. Murtari and Dom to return to the Home so Domenic can get ready for school in the fall.

3. Mr. Murtari has been financially destroyed by this action - is it possible after fairly balancing the value of Mrs. Murtari’s Master Degree, the many payments Mr. Murtari made on the homes, and the property Mrs. Murtari removed from the Home - to simply credit Mr. Murtari the equity necessary to own the home and have a basis for financial stability - and to build a future.

4. To be detailed in the resulting order - so that there is no confusion about what the court expects to happen.