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CA 97-3119 & CA 97-3120 John Murtari, Oral Argument, 30 minutes requested. State of New York Supreme Court Appellate Division - Fourth Judicial Department ADRIANNE MURTARI, Plaintiff-Respondent -vs- JOHN MURTARI, Defendant-Appellant BRIEF for DEFENDANT-APPELLANT John Murtari [NOTE: THIS BRIEF HAS BEEN EDITED TO JUST INCLUDED THE FINAL LEGAL
ARGUMENT] John Murtari RIGHT TO TRIAL BY JURY AND PROOF BEYOND A REASONABLE DOUBT ON
GROUNDS & CUSTODY Mr. Murtari did not have fair access to our legal system. The Judge, opposing counsel,
and the Law Guardian all knew how the system worked, how things were done. Perhaps an
outstanding Judge, or Law Guardian, would have had the insight to step forward and deplore
the lack of clear evidence of wrong doing by the Defendant - but these were average
people, doing their job the way they were used to doing it. They had developed a
"system" for handling these types of cases. Unfortunately, personal bias
develops when any two people meet, and unfortunately these biases often substitute for
fact. Judge Major somehow "knew" that Mr. Murtari had done something wrong, but
just couldn't put his finger on it. The Jury Protects the Citizen from Intrusion by the "State" in their lives Certainly, the right to a Jury is one of our most important right's in the Bill of Rights. The founders of our nation knew that a "jury of your peers" was necessary to protect the freedom of its citizenry from unwarranted intrusion by the "State" - even if this is under the mask of "benign" intrusion, or "good public policy". The extensive argument which follows highlights United States Supreme Court decisions which have upheld the special nature of the parent/child bond. It is but a natural extension that this bond also be afforded the protection of a Jury, and of a standard of proof "beyond a reasonable doubt" - that which we afford our most valued liberties. The beauty of the American Jury is that of a "reality check." What this case
of Murtari v. Murtari so clearly illustrates, is the need for a "reality check".
You have to bring in six-twelve people, supplied with just common sense, and no prior
prejudice or bias against the parties, and convince them of the merits of your case. SUMMATION OF THE ENTIRE ARGUMENT IN JUST ONE LINE A punk kid stealing a 6 pack of beer from a convenience store has a right to a Jury, and a standard of proof "beyond a reasonable doubt.", does not any child/parent relationship deserve that same standard of care by our society? I know of no more exquisite torture that what a loving child and parent can
experience when they are forcibly separated! I can think of no more important right than
the sanctity and respect due that bond. I know of no more careful deliberation than what
must be taken before recommending that bond be broken and I can think of few matters which
would require a higher standard of proof. The excerpt which follows has been edited for size and content, the substance of the brief was from a similar case in Wisconsin, permission was given by the attorney to use portions of the argument. Just wanted to make it clear that the Defendant did not do all the voluminous research referenced in the following argument. It has TWO major sections, first including "social" research, next "legal" research. Dated: May 5, 1994 Copy permission granted by Travis Ballard, JD, Adrian MI The Best Interests of the Child Requires Joint CustodyIn recent years whenever the marital status of two parents changed from married to divorced the child loses one parent in most instances. In nine out ten cases, the child lives with the mother and "visits" with the father every other weekend. Dr. Richard Warshak, The Custody Revolution (1992). Indeed, this is so common that it is called "standard" visitation, In short, it is the arrangement that is meted out to children in the absence of compelling proof that some other arrangement would better serve the needs of the child. While the child is continually told that the divorce is "not your fault" the child is routinely punished by the change in marital status of his parents by the loss of one of those parents as a major factor in the child's life. This brief takes the position that this current state of affairs is a destructive holdover of the prevailing cultural paradigms in existence at the time that divorce rates began to rise. The scientific evidence concerning the results of these policies points clearly to the damage suffered by children and society when the relationship with either parent is significantly weakened. It further indicates that, contrary to the cultural assumptions in existence in the decade which spawned the high divorce rate, men and women are equally good at parenting and equally important to the well being of the child. Finally, it is argued that any schema which impairs the parent/child relationship without clear and convincing evidence of a compelling state interest for doing so violate the Equal Protection and Due Process rights of both the parent and the child. Dr. Richard Warshak, America's leading expert on father custody, described the history of routine custody arrangements as follows: "In earlier times it was assumed that men, by nature, are better suited to protect and provide for children. Since 1920, it has been assumed that women, by nature, are better suited to love and care for children. "These assumptions, which so powerfully affect so many children's lives, are based on nothing more than folklore and sexual stereotypes .... As guidelines for custody dispositions, folklore, sentiment, and stereotypes are poor substitutes for factual information. In the last two decades, social scientists have examined different custody arrangements and their effects on children's development. If this information is ignored, and we continue to allow myth and sentiment to rule custody decisions, we short change our children and we short change ourselves." Extensive evidence will be presented in this brief which indicates that it is imperative that the child/parent relationship with both parents be maintained as much as possible. Unfortunately, current arrangement do not routinely maintain both relationships. Indeed, the current policy results in a situation in which 42% of fathers fail to see their children at all after divorce. Frank F. Furstenberg, Jr. and Christine Winquist Nord, "Parenting Apart: Patterns of Childbearing after Marital Disruption," Journal of Marriage and the Family 47, no. 4 (November 1985): 874, cited in Sylvia Ann Hewlett, When the Bough Breaks (1991) at 286Ä87. As the rate of divorce triples between 1960 and 1982 before leveling off at the 50 percent mark, a generation of children raised in fatherless families has been extensively studied. Despite the overwhelming evidence that children need both parents-even after the dissolution of a marriage- America has been slow to change the paradigm it holds which presumes that the post-divorce family will have only a single parent. "The main obstacle to progress is not ignorance, but the illusion of knowledge." A. Overwhelming Research Favors Joint Custody as the Preferred AlternativeIn all actions involving child custody of visitation the issue is. "What are the best interests of the child'?" or, in other words, "What disposition serves the best interests of the child?" See, e.g. Burich v. Burich, 314 N.W. 2d 82, 85 (1981). The most recent scientific evidence clearly demonstrates that paradigms of family law which do not give a preference to joint custody must be viewed as a threat to the best interests of children who find themselves with divorcing parents. Research of the past decade has revealed new insights into how children of divorce are affected by the custody and visitation arrangements imposed on them by the family law courts of our nation. Numerous shibboleths about so-called impracticalities of joint custody or expansive parental contact arrangements have been disproved. The evidence is simply overwhelming that joint custody or expansive parental contact is the optimal way to promote the best interests of the child. The Children's Rights Council conducted a "comprehensive survey of more than 50 studies showing the greater risks (on a variety of indicators) for children raised in single- parent homes...whether the single parent is a father or a mother." D. Levy, Ed., The Best Parent is Both Parents, A Guide to Shared Parenting in the 21st Century, Children's Rights Council (1993) at p. 118, fn. 38. The majority view of the psychiatric and pediatric profession is that mothers and fathers are equals as parents. See J. Atkinson, "Criteria for Deciding Child Custody in the Trial and Appellate Courts, " Family Law Quarterly, Vol. XVIII, No 1 (Spring 1984). A close relationship with both parents is necessary to maximize the child's chances for a healthy and productive life. Dr. Richard Warshak described the results of the most recent research as follows: "Much of the earlier work in infant development concerned the 'bonding' between
the mother and child. Under the influence of the motherhood mystique, we had always
assumed that these bonds were the exclusive providence of mothers and children. "We were wrong. Numerous studies have established beyond a doubt that infants form close attachment bonds with their fathers and that this occurs at about the same time that they form attachments to their mothers. Although father and mother usually play different roles in their child's life, 'different' does not mean more or less important. *** Psychologists Ross Parke, of the University of Illinois, and Douglas Sawin, of the University of Texas...carefully observed fathers and mothers bottle-feeding their newborns. They found that fathers were as sensitive as mothers to their baby's signals. Fathers, like mothers, responded to their infant's clues by stopping the feeding for a moment, talking to the baby. and looking more closely to see what was wrong. Moreover, the amount of milk consumed by the infants with their mothers and fathers was nearly identical. "Another series of studies has found that men-even bachelor college students-are as sensitive as women in discriminating among different crying patterns of infants. Whether or now we want to attribute these findings to a 'paternal instinct,' these, and many similar studies conducted at universities throughout the world, have established beyond a doubt that women have no monopoly on child-care skills." Dr. Frank Williams, a leading authority on the effects of divorce on children compared joint custody to traditional visitation arrangements in his October 20, 1990, address in Washington, D.C. (2) "It is the continued parental bonding, not the number of homes or vehicular travel, that will be the crucial determinant of children;s forward psychological development following divorce. In these days, when both parents frequently work, and rely on sharing the child-rearing with each other, with other family members, and with housekeepers and day care personnel, the concept of one 'primary psychological caretaker' is outdated. Frequently there are two psychological caretakers, or a network of caretakers, supervised by two parents." The emotional stability of children of divorced parents is directly related to the quality of their continuing relationships with both of their parents. "We have repeatedly described the dissatisfaction of so many youngsters who felt they were not seeing their fathers often enough, If custody and visiting issues are to be within the realm of the 'best interest of the child,' then such widespread discontent must be taken very seriously. "J. Wallerstein and J. Kelly, Surviving the Breakup, 142-143 (1980) . See also, D. Luepnitz, Child Custody, A Study of Families After Divorce, (1983). In a revised version of an address presented by Dr. Joan Kelly, who has performed extensive research on the effects of divorce upon children, at the annual meetings of the American Psychological Association in 1987, Kelly wrote: "The primary negative aspect of divorce reported by children in numerous studies was loss of contact with a parent (Hetherington et al., 1982; Kurdek & Berg, 1983; Wallerstein & Kelly, 1980, Warshak & Santrock, 1983). The traditional visiting pattern of every other weekend, most often a maximum of four overnights spent with the father per month, created intense dissatisfaction among children, and especially young boys. Youngsters expressed profound feelings of deprivation and loss, and reactive depressions were frequently observed in young school-aged boys (Wallerstein & Kelly, 1980)." Id. Indeed, sole custody arrangements with limited visitation by the non-custodial parent have resulted in children suffering a broad range of emotional disorders including deep feelings of loss and abandonment, strained interactions with both parents, disturbances in cognitive performance, and sex role identification problems. Trombetta, Joint Custody: Recent Research and Overloaded Courtrooms Inspire New Solutions to Custody Disputes, 19 J. Fam. L. 213, 217-20 (1980). Researchers Alston and Williams noted that "[a] significant relationship was found between father absence and self-concepts of the boys. They placed less value on themselves, had less stable relationships with peers, less interaction with family members and showed a weaker scholastic performance. D. Alston and A. Williams, "Relationship Between Father Absence and Self-Concept of Black Adolescent Boys," Journal of Negro Education, Vol. 51, No. 2 (Spring 1982), 134-138. See also, Richard Koestner, et al., The importance of the father was again pointed out by Professor Daniel Shybunko in his 1989 study: "... The father-child relationship was found to be a good predictor of social competence regardless of marital status. Moreover, the importance of the father-child relationship increased dramatically in the divorced family. This supports the view (Hetherington, Cox & Cox, 1978) that availability of the father is associated with positive adjustment and social relations, especially with boys." Daniel Shybunko, "Effects of Post-divorce Relationships on Child Adjustment", Children of Divorce: The implications of the social science research on single-custody families was translated from bland, euphemistic terms of art such as "positive social behaviors" and "predictors of social competence" into graphic reality by Professor Stanley Page, while writing for a general audience: "The homes lacking a father are, obviously, mostly the product of ... divorce ... Having opted for divorce as the solution to family and marital problems, our society has created a built-in child-destroying machine. And since there is not, as yet [in 1984], even the proposal of an idea for remedying the inevitably resultant distortion of the child-father relationship, we can be confident that the seeds of a vast army of sociopaths have been sown. Bred in fatherless homes and filled with boundless and amorphous rage for which they are not to blame, they will overrun this land. They are sure to make it even more uninhabitable for peace-loving citizenry already troubled by major breakdown in morality and by all manner of rampant vice and criminality." One would expect that those divorce parents whose parental rights and responsibilities were felt most strongly would be where joint custody was ordered. Because both parents were still "members of the family", payment of child support should be higher where a paren-tectomy had been performed. In fact, "[t]he Census Bureau reported similar results in 1992, in the first survey it ever made on the relationship between joint custody, visitation and support. The Census Bureau found that [parents] with joint custody paid 90.2 percent of their support, [those] with visitation paid 79.1 percent of their support, and [those] with neither joint custody nor visitation paid only 44.5 percent of their support." U.S. Bureau of Census, "Child Support and Alimony: 1989," Current Population Reports, Series P-60, No. 173 (Washington, D.C.: GPO, 1991), cited in D. Levy, Ed., The Best Parent is Both Parents, A Guide to Shared Parenting in the 21st Century,, Children's Rights Council (1993) at p. 22, fn. 37. The complex dynamics of childhood development within the context of divorce and recent scientific data related thereto strongly militate against the any paradigm that does not prefer joint custody arrangements. A simplistic guideline of alternate weekend visitation, although quicker to mete out, inevitably ignores the unique circumstances of each such child whose life will be shaped by the trial court's decision. It is particularly important for a young boy to have significant blocks of times with his father as a male role model. Healthy social and personality development of young boys of divorce parents is directly related to the quantity and quality of interaction the boy is able to enjoy with his father. See Lamb, Michael and Sagi, Abraham, Fatherhood and Family Policy, Lawrence Erlbaum Associates, 1983; Santrock, Warshak, and Elliott, Social Development and Parent-Child Interaction in Father-Custody and Stepmother Families Non-Traditional Families: Parenting and Child Development, ed. by Michael Lamb, 1982, Hodges, William F. supra. Unfortunately, it is still a common phenomenon to see trial courts bound more by traditional methods of dealing with child custody and visitation questions rather than accept more progressive, modern approaches which better serve the best interests of the minor child. Devices which are tempting for judicial expediency are poorly equipped to deal with the individual needs of children of diverse backgrounds who will have their lives so intimately shaped by the decisions of trial judges. What is called for is a policy which will expand the range of opportunities for children of divorce rather than one which imposes such narrow and restrictive limitations on these children. Trial courts should endeavor to insure that children of divorce have the maximum opportunity for both physical and emotional contact with each parent unless direct physical or significant emotional harm to the child will result from this contact. Dr. Isolina Ricci, Director of California Family Court Services and author of Mom's House, Dad's House, noted as early as 1980 that Given any voice in the matter, younger children will almost always choose the newer two-home alternative over the traditional one-home settlement with one parent consigned to the sidelines. The children I've worked with inevitably go straight to the heart of the issue, even when their parents are caught in tunnel vision of a 'real home.' When they 'visit' their non-custodial parent, they stake out territory ... They shy away from words like 'visit my Dad.' Instead, they say they're going to 'be with my Dad' or 'live with my Dad this summer.' An for good reasons: outsiders visit; families live together. Isolina Ricci, Ph.D., Mom's House, Dad's House; Making Shared Custody Work (1980). A child's right to a relationship with both parents ought not to be compromised merely because of the marital status of the parents. The court in Franz v United States, 707 F.2d 582, 701 (D.C. Cir. 1983) held that "a parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him being raised by a loving, responsible, reliable adult." Id, at 599. In Clark v Jeter, 56 U.S.L.W. 4527 (June 6, 1988), the U.S. Supreme Court held that "a child's interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interests." Id at 1419. See also Strandberg v City of Lelenas, 791 F.2d 744 (9th Cir. 1986). Just as a child has a constitutional interest in the parent-child relationship if the parents never marry, so the relationship is protected if the parent' marriage fails. B. Only a Presumption in Favor of Joint Custody Accords appropriate respect to the constitutional protections surrounding the parent-child relationship.The U.S. Supreme Court long ago noted that a parent's right to "the companionship, care, custody and management of his or her children" is an interest "far more precious" than any property right. May v Anderson, 345 U.S. 528, 533, 97 L.Ed. 1221, 73 S. Ct. 840, 843 (1952). In Lassiter v Department of Social Services, 452 U.S. 18, 27, 68 L.Ed. 2d 640, 102 S.Ct. 2153, 2159-60 (1981), the Court stressed that the parent-child relationship" is an important interest that 'undeniably warrants a deference and, absent a powerful countervailing interest, protection.'" quoting Stanley v Illinois, 405 U.S. 645, 651, 31 L. Ed.2d 551, 92 S.Ct.1208 (1972). See also Franz v United States, 707 F.2d 582, 594-602 and 712 F.2d 1428 (D.C.Cir. 1983) (interest of non-custodial parent in consortium with child constitutionally protected); Sherrod v Berry, 827 F2d 195, 207(7th Cir. 1987) (parental association a constitutionally protected liberty interests> This is not to say that courts should blindly or automatically impose joint custody arrangements. Clearly, there are many situation where joint custody is neither appropriate nor practical. Whenever a parent/child relationship is restricted by a family court order, however, such a restriction must be done in the least restrictive manner. Maximizing time with each parent is the only Constitutional manner by which a parent is able to maintain a meaningful parent-child relationship after divorce. While geographic distance, school schedules and the like must be factored into the custody/visitation calculus, trial courts faced with a custody/visitation decision must accord appropriate constitutional respect to maintaining a healthy parent-child relationship by granting each parent as much time as possible with the child under the circumstances of each case. "No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v Elrod, 411 F. Supp, 645, 649 (1976). Application of constitutional protections to custody/visitation rights is a necessary corollary to the Bill of Rights because individual liberty cannot be secured unless "certain kinds of highly personal relationships" are afforded "a substantial measure of sanctuary from unjustified interference by the State." See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624 (1980). Providing constitutional shelter for a parent-child relationship simply reflects the realization that individuals draw much of their emotional enrichment from such relationships and that the sanctity of family relationship is "deeply rooted in this Nation's history." Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977). If there is any fundamental proposition of government on which all would agree, it is that one of the highest goals of society must be to achieve and maintain equality before the law. Yet this ideal remains an empty form of words unless rights are equally enforced. The appropriate manner for enforcing the constitutional right to a meaningful parent-child relationship after divorce is for courts to maximize the time the child spends with each parent absent compelling reasons to the contrary. "It is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal." Ashby v White 2 Ld. Raym. 938, 953 (1703). In the Court of Appeal in Jermstead v. McNelis (1989) 210 Cal.App.3d 528, a statutory criteria for child placement in adoption proceedings of a "best interest of the child" was weighed against a parent's federal constitutional rights to a parental relationship with one's children: "We are constrained to read section 7017,subdivision (d)(2) in a manner which avoids a potential for conflict with the federal constitution. [Citations omitted.] If read to bar a parental preference of a natural father who has appropriately grasped his custodial opportunity interest the statute would present such a conflict. The statute, as we said, lends itself to conformity with the constitutional concerns. In a case where the natural father has diligently sought to shoulder the burdens of the paternal relationship, including the burden of custody, the requirement of parental preference arises from the federal Constitution. Accordingly, the statutory criteria of section 7017 for the best interest of the child regarding retention of parental rights under the statute must be read in the light of this requirement. The statute admits of such an accommodation." Id. at 541. Clearly the "best interests of the child" standard is to be read in light of the requirement that the parental-child relationship remain intact. In those cases where joint custody is not ordered in a divorce setting, the parent without custody has been deprived of physical custody, just as in any other setting. The identity of the person who has custody of the child is irrelevant to the requisite proof required to deprive one parent of physical custody. Surely an action to determine whether a parental right should be retained is as fundamental to the parent child relationship as an action to terminate that relationship. The impact these judicial decisions have on the lives of all concerned cannot be over estimated. Childhood passes rapidly and it quickly becomes too late to unring the bell. Expanded visitation or joint custody may seem unimportant, but only to those who have never experienced the hollow time of forced separation. "No human bond is cemented with grater strength than that of parent and child." Michelle W. v Ronald W., 39 Cal 3d 354 (1985). Seton Hall Professor Holly Robinson has spelled out this argument in detail: It is accepted constitutional doctrine that the due process clause of the fourteenth amendment protects interests that are recognized as constituting "life," "liberty," or "property." In a number of decisions, the Supreme Court has recognized that individuals possess a fundamental liberty interest-entitled to constitutional protection-regarding such matters as the decision whether to have children, decisions concerning the upbringing of their children, and the retention of their children through exercise of custody. Read together, the cases clearly establish a zone of privacy around the parent-child relationship, which only can be invaded by the state when the state possesses a sufficiently compelling reason to do so. As a result, when the marital breakdown occurs, both parents are entitled to constitutional protection of their right to continue to direct the upbringing of their children through the exercise of custody. Adequate protection of this parental right requires that parents be awarded joint custody [or expansive visitation] ... unless a compelling state interest directs otherwise. H.L. Robinson, Joint Custody: Constitutional Imperatives, 54 Cinn. L. Rev. 27, 40-41 (1985) (footnotes omitted). See also, Ellen Canacakos, "Joint Custody as a Fundamental Right", Arizona Law Review, Vol 23, No 2 (Tuscon, AZ: University of Arizona Law College), Tuscon, 95721. This proposition that the parent-child relationship in a traditional custody/visitation dispute commands constitutional al respect is admittedly lacking a long life of specific case authority approving it. This lack of specific case authority is not fatal to the proposition's vitality. At least one federal court has found that the paucity of cases recognizing the constitutional sanctity of this relationship is readily explained by the relative rarity of divorce in American society in the past. That court further held that the historical absence of a strong tradition should not result in denial of the constitutional protection for such relationships as they become increasingly prevalent. Maximizing the child's time with each parent is the constitutional mandate absent a compelling state interest of protecting the child from harm. There is no evidence that maximizing the child's time with both parents would cause the child any harm. The evidence is quite the opposite. To further underscore the need for courts to consider the constitutional protections which attach in family law matters, one need only look to recent civil rights decisions. In Smith v City of Fontana, 818 F2d 1411 (9th Cir. 1987), the court of appeals held that in a civil rights action under 42 U.S.C. section 1983 where police had killed a detainee, the children had a cognizable interest under the due process clause. The analysis of the court included a finding that "a parent has a constitutionally
protected livery interest in the companionship and society of his or her child. Id at
1418, citing Kelson v. City of Springfield, 767 F.2d 651 (9th Cir. 1985). In
Smith the court stated: "We now hold that this constitutional interest in familial
companionship and society logically extends to protect children from unwarranted state
interference with their relationships with their parents." CONCLUSION
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