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ADRIANNE PHILLIPSON,

Petitioner-Respondent

-vs-

JOHN MURTARI,

Respondent-Appellant

James Stern, Esq.
103 E. Water Street, Suite 304
Syracuse, New York 13202
315-475-4010

Page #

Table of Authorities …………………………………………… 3

Questions Presented ……………………………….……………… *

Statement of Facts ……………………………………………… *

Argument ……………………………………………… *

Economic Necessity of Move ………………………..……. *

Change in Custody Should have been Granted ………… *

Move not in Domenic’s Best Interest ………………………… *

Violation of Due Process ……………………………………… *

 

Conclusion ……………………………………………… *

Appendix [selected portions of the Record on appeal are attached]

Whether the Court below erred in its finding that the mother’s petition for relocation to California was justified on the presented grounds of economic necessity, when the evidence showed that it was solely motivated by a desire to distance herself from her ex-husband and inhibit the relationship between father and son?

Should the cross-petition of the Respondent-Appellant for custody have been granted?

Was the best interest of the child, Domenic Murtari, served by allowing him to be moved out of state?

Were Mr. Murtari and his son's Constitutional Due Process rights violated in a proceeding where the standard of proof was "preponderance of the evidence" and which could not be heard by a Jury?

 

Ms. Phillipson petitioned the Family Court in the summer of 1998 for permission to move to San Diego, California to pursue another degree, this time another Masters in linguistics (R-82). She had not been accepted into the Ph.D. program, but, rather, had been conditionally accepted into a Masters program, which could lead to a Ph.D. (R-348) Ms. Phillipson had already obtained three degrees: a Bachelor of Science in photojournalism, a Master of Science in piano, and a previous Master of Science in linguistics.

John Murtari had exercised all of his court ordered visitation with his son, Domenic, which began every other Thursday and ended the following Monday (every other weekend). Mr. Murtari would suspend all work during his bi-monthly visitation to devote all his time and attention to his son Domenic. There is no dispute to the fact that Mr. Murtari is a dedicated and loving father.

Ms. Phillipson’s alleged reason for the move was based on economic grounds. Ms. Phillipson had not worked (or seriously sought work in the local area), since May of 1998. Mr. Murtari could not pay child support at the ordered level of $120/week, but did pay $60 each week. He had made a petition for a change in support amount based on his actual income.

Ms. Phillipson testified that in addition to the rigors of a Ph.D. program, she planned to take on a part-time teaching assistantship and a part-time job to support herself (R-685). Ms. Phillipson is not sure how she will survive financially after just her first year in California (R-684). She does not have any family in California or other support that would be able to help her care for Domenic (R-689), though she is from a wealthy Japanese family who can provide abundant financial support. (R-456-7) Her strong financial position explains her choice to move though her general job prospects in California are not certain (R-183). Further, the job prospects that could be ascertained with a minimum amount of definiteness proved not to be in her chosen Ph.D. program (R-184), and were scattered about the United States (R-185).

It is uncontradicted that Domenic has a loving and close relationship with his father, as noted by Judge Bersani in his order dated December 9, 1997. Mr. Murtari has exercised his visitation rights with unwavering regularity. Mr. Murtari took the loving step of adjusting his work schedule to match the court ordered visitation schedule so that he could give Domenic his full attention and maximize their time together (R-518). Mr. Murtari's dedication to his son has fostered a loving and happy relationship. Mr. Murtari and his son, Domenic, adore each other and have a healthy and nurturing close father and son relationship. Cheryl Kwiek and Amy Murtari, his cousins, testified to the closeness and intimacy in the father-son relationship (R-385,414). Mr. Murtari’s past and present employees [the business started out of Mr. Murtari’s home] also testified to their observation that Mr. Murtari adores Domenic and how happy they are together (R-444). The bond between them is strong, so strong that Domenic refused to eat in day care when Mr. Murtari was prevented from seeing him (R-120). This persisted for about two years (R-120).

Beyond his relationship with his father, Domenic has a close relationship with his extended paternal family. He had extensive contact with his paternal grandmother, whom he saw as often as twice a week (R-391). He also had a relationship with his cousins, whom he saw about once a month, as well as at holidays and vacations (R-394). Additionally, when Domenic starts first grade in the fall, he could have started with his cousins (R-552).

Petitioner called one other witness:

Dr. Kenneth Reagles, a specialist in vocational rehabilitation, who had been hired for purposes of the trial.

Respondent called five other witnesses:

I. Mrs. Amy Murtari (Married to cousin, with children Domenic’s age.)

II. Mrs. Cheryl Kwiek (Cousin, with children Domenic’s age.)

III. Mr. Walt Jaworsky (Worked with Respondent at his home business).

IV. Mr. George Law (Worked with Respondent at his business).

V. Mrs. Caterina Murtari (Mother of Respondent/Domenic’s Grandmother).

 

 

Judge Bersani erred in allowing Petitioner to take Domenic Murtari to Graduate School in San Diego California. Judge Bersani failed to balance the interests of the parents, and most importantly, his decision is not in the best interest of the child.

There was significant evidence at trial that the purported motivation for this move was not genuine. This was not a person who had really tried to find work in the local area. Syracuse is a major metropolitan area and other cities are also nearby.

Judge Bersani dismisses Mr. Murtari's expectation that Ms. Phillipson would secure adequate employment in the Syracuse area as being irrelevant. This, however, is contrary to the law on this issue. The courts have already held that the failure of the proponent to demonstrate an inability to gain fitful employment in the area is relevant in denying petitioner's request to relocate. Kemp v. Teeter. 675 N.Y.S.2d 250, 252 (1998). In fact, the court clearly stated that "although respondent's stated motivation for relocation was economic in nature, respondent failed to convincingly demonstrate that she could not secure similar employment in New York." Id. at 252.

Ms. Phillipson already has three college degrees (including two masters degrees: Piano Performance and Linguistics) and now starts a third masters degree in California. Mr. Murtari had not paid the full ordered support amount of $120/week, but instead $60/week; however, regardless of this, in the months before trial Ms. Phillipson had positioned herself with "ZERO" income [not including the financial support/gifts from her family in Japan.]

Ms. Phillipson "consulted" a vocation expert, Dr. Reagel – but not for the purpose of helping her find a better job in this area – but for purposes of trial to justify a planned relocation!

This is a "manufactured" move. Ms. Phillipson had not worked since May of 1998, and had not made any serious efforts to find a local job (R-371):

Q Last May is the last time you worked?

A '98.

Q Okay. Or this May of '98 --

A Yes.

Q -- is the last time that you have worked? And you have been living on the proceeds of the sale of the house since that time?

A That's correct.

Q I see. And you haven't been looking in the paper or a job?

A Not currently.

Q Since May have you looked in the paper for a job?

A Not paper.

Q Have you looked anywhere for a job?

A Yes.

Q Where?

A Internet.

Clearly, this does not meet the standard set by Kemp of "convincingly demonstrating that she could not secure employment in New York." Kemp. 675 N.Y.S.2d at 252.

Having reduced her income to zero Ms. Phillipson was in a position to justify the move regardless of Mr. Murtari’s support amount. However, when asked about what her response would be if the Judge allowed Domenic to remain in New York during her degree program she responded that she would not move (R-466). Her demonstrated attitude and actions are not consistent with a person facing a true financial crisis (R-683)

Q. Miss Phillipson, have you looked into how much you will earn in California as a teaching assistant?

A No.

Q Do you have any idea how much your income will be as a teaching assistant working at the University of California at San Diego?

A No.

Q You have no idea?

A No.

 

 

There was no question Mr. Murtari had not been paying the ordered amount of $120.00/week (based on imputed income). He had been making payment of $60/week based on his actual income.

It is also noteworthy that the recent Divorce Judgement found Ms. Phillipson capable of earning app. $24,000 in the local area based on her education and experience.

At the time of this trial another action was pending to modify Mr. Murtari’s support obligation to be based on actual and not imputed income. Mr. Murtari is the owner of a new business and while growth has been steady – the struggle he has had through his Divorce have interfered with company growth. The business is also a genuine attempt on his part to insure he has time for family obligations and also one to which he is well suited by training and experience. The Law Guardian pointedly asked (R-670):

Q So my question to you is, why haven't you stopped the nonsense of your own business and go and get a job working somewhere?

….

A Joe, the things I have thought about with that -- I mean, to answer that, the business has been started, it's growing, income is growing, customers are growing but with that expenses, so my payroll, my personal pay isn't growing at that terrific a rate because I have to bring more employees on. I have thought about, well, you could get rid of the business and try to jump into a job as a systems administrator. Obviously I can't move out of the area because of the family and my mom. I would be limited to the

Syracuse area. I still have the credit card debt, 25, 30,000 bucks from the business. Right now the business pays that.

If I were to cut off the business and say some company in Syracuse, I found a job that they say, John, look, we'll pay you 40,000 to be a systems administrator starting tomorrow, and my worry has been in all of this -- part of the problem was, I don't see Domenic during the week.

 

Mr. Murtari has been working diligently to grow the business and has had success. Because of his knowledge and experience in the computer field, he incorporated in 1995 and the business has shown steady growth (R-564).

Dr. Kenneth Reagles, a Vocational and Rehabilitation counselor was hired by Ms. Phillipson – not for the purpose of helping her find a better job in the Syracuse Metropolitan Area, but just for purposes of the trial (R-488)

Q Let me ask you another question. We had – you already testified that you didn't hire an expert with regard to evaluating your prospects for employment until after you

had been accepted into the program in California?

A I did not hire. I was directed to Dr. Reagles.

Q You were directed by your attorney?

A Yes.

Q Okay. After you filed the petition?

A I don't remember if it was prior to or after.

Q You didn't go to Dr. Reagles for help in what you should do with your life, how you should get a job? He was just hired for this petition, for the purposes of this

trial?

A I don't know.

 

Ms. Phillipson has a Bachelor’s Degree in Photojournalism; Master’s Degree in Piano Performance and a Masters Degree in Linguistics. She chose not to pursue any of those areas. (R-373):

Under cross examination, Dr. Reagles confirmed that jobs were available in this area (R-210):

Q I want to go back to Miss Phillipson's ability to get a job here in Syracuse?

A In Syracuse, okay.

Q You're -- or the surrounding area?

A Yes.

Q You're certainly not saying that she couldn't find work here in Syracuse?

A No, I'm not.

Q Okay. She has a degree in photojournalism?

A She does.

Q She could be a photographer?

A Possibly so.

In summary, there was no real financial crisis here and no lack of employment for which the petitioner had been trained. Indeed, in the original Divorce Judgment of 1987 - the Judge had found petitioner capable of supporting herself in this area.

Mr. Murtari cross-petitioned the Court for a change in Custody. Ms. Phillipson has not adjusted to a post-divorce relationship with Mr. Murtari – to the detriment of Domenic. In her testimony she admitted that Domenic had not eaten at Daycare for over a year "because he wanted daddy." She did not even tell Mr. Murtari this was happening to their child. There was testimony that Domenic trembles in her presence when talking about "daddy" – and their was too much testimony of the tears this child has cried when being returned to her after a visit with daddy.

There was evidence Ms. Phillipson had not complied with allowing Court ordered visitation and was also inhibiting Domenic’s phone access to his father. This is inexcusable. It was clear she has a poisonous and unwarranted attitude toward Domenic’s father.

The evidence was also clear Mr. Murtari and Domenic have a very warm relationship. There is a great deal of love and affection between father and son. This was not disputed by anyone. Mr. Murtari also has a large extended family in the area. Domenic has the ability to play with cousins that are in his age group and can begin to form life long friendships. He should not be denied all this.

Tropea states that a person's desire to improve his or her economic condition is a valid consideration where the overall effect on the child is a positive one. Id., 642 N.Y.S.2d 575, 581 (1996). This criterion was further explained in Kemp which denied a relocation request partially on the grounds that the proponent "failed to demonstrate that the proposed move would substantially enhance either her or [son's] quality of life." Kemp, 675 N.Y.S.2d 250, 252 (1998) emphasis added. In this regard, the court found it relevant that none of the child's extended family resided in the target state.

Not only has Ms. Phillipson admitted that she had no relatives in California, she fails to show that her quality of life will be substantially improved by this move. All that has been shown at the trial is that she would have a longer resume and uncertain job prospects on top of a menial salary for being a teaching assistant and a schedule that even a non-parent would find harrowing

It is important to note Mr. Murtari wishes to share legal and physical custody of Domenic with his former wife. The change in Custody would have restored balance to Domenic’s life.

Ms. Phillipson had stopped Mr. Murtari from visiting Domenic even at daycare. It had a strong impact on this young child (R-120):

A  . . .  After his father's visit he refused to interact with other children and the teachers and he told me, I do not want to interact with other children.  When I asked a reason, he said, he goes, daddy doesn't go to the child care.  He also had a problem with the lunch, eating lunch.  He refused to eat lunch with other children.  It lasted over a year.
Q     Did you talk to Domenic about his refusal to eat lunch with other children?
A     Yes, I did.
Q     And what did Domenic tell you?
A     Because daddy doesn't come to the child care.
Q     And has this matter been resolved?
A     This year finally after two years he finally started to eat lunch with other children and the last year when he started Jowonio he was still -- the first 3 months,
September through December, from what I heard from teachers he didn't interact very much. . . .

What is even more unfortunate is even though Domenic was not eating – she did not even make his 
Father aware of the problem or try to get his help.  Her child is not eating – and she insists on blaming Mr. Murtari for this problem. (R-461)

Q     Now, did you ever tell Mr. Murtari about this?
A     No, I did not.
Q     I mean, hoping that maybe Mr. Murtari might be able to talk to Domenic about it so that he would start eating and going to the bathroom?
A     Usually when father comes in things get worse.
Q     No, my question was, did you ever try and enlist Mr. Murtari's help with Domenic?
A     I said no.
. . . .
Q     And it never occurred to you that Domenic might be missing his father?
A     No.
Q     It never occurred to you that you might be the cause of Domenic's pain, did it?
A     No, because he said, because daddy didn't come to the child care.

Both parents acknowledged there were never any problems when it was time for Domenic to be with his father for visits. Both also acknowledge Domenic would often cry when being returned to his mother after a visit. (R-573)

.  .  .   Since this summer, more, he cries and won't like -- you know, when we go there, he just holds on.  I mean, at times I would be walking he would be walking next to me, you know, but then he just grapples onto my leg or something.  And I don't know why but it had been becoming more frequent to where it was really disturbing and I think for both of us because one time, about a month ago, two
transitions ago, we get to the door and we're ready and  Adrianne answered the door and it was obvious, she had a little toy dinosaur for him and she goes Domenic, you know, she was -- I could tell that she was trying to do something different to distract him and I was going, Domenic, look, a dinosaur, and he just bursts out balling and buries his head in my shoulder and it was awful and I felt bad and, I mean, no one -- I mean, God, no one likes that, to see your kid do that.

And after that I had written Adrianne about it a couple of times to say, gee, can we do something here, I mean something is going on, what can we try different.  I
didn't hear anything.  .  .  .

Mr. Murtari tries to make these times easier.(R-557)

Q     You heard your ex-wife say that you tried to engage her in fake family conversations?
A     Yes, I heard her.
Q     Okay.  Well, I'm not going to ask if you try toengage her in fake family conversations but do you try to engage her in conversations in the presence of your son?
A     Yes, I do.  When she comes -- when it comes and it's time for me to pick up Dom, I try to say hello to her, but primarily where the attempts at conversation occur is
when I drop him off because often times he cries when we go back.  He wants to tell her things, we'll talk about stuff and I'd say, gee, Dom, what can we tell mommy about when we come back and we'll get there and for some reason he won't want to talk to her directly but sometimes whisper to me, tell mommy we did this, tell mommy we did that.  The conversation is not so much about her and I but just, Dom
did this, it's a nice day, we went to the park, those types of items.
. . .
Q     In the presence of your ex-wife do you try and discourage Domenic from encouraging you to tell his mother about what he did that day or anything of that sort?
A     No, nothing like that.  No.  I try to be just merely to -- if he's talking to me, I'll tell Adrianne what he said or if he's a little quiet I'll just say, hey, well, Dom did this or we did that.
Q     For the sake of Domenic seeing his parents getting along?
A     Just for the sake that it's a while -- because it seems like it would be once we were together for a while it got to be easier and he would be ready to go.

Ms. Phillipson does not value Domenic’s relationship with his father. The Divorce Trial Judge wanted Domenic to be able to attend Church on a regular basis with his father (there was no conflict on this because Ms. Phillipson is not a church goer). The Divorce order included regular Sunday visits, except if Ms. Phillipson was making a special trip out of town – these "special trips" became quite regular and soon resulted in a lot of cancelled visits (R-467).

Q -- and Domenic? I'd like to ask you about the Sunday visitations that you have denied. It's fair to say that more than 50 percent of Sunday visits when Mr. Murtari

takes his son to church for a couple of, you know, hours in the morning have been interrupted, correct?

A I don't know the percentage. I have taken Domenic with me to go on a special trip, yes.

Q You have intentionally kept Mr. Murtari from having that court ordered time, church time with his son the majority of the Sunday time visits, correct?

A No.

Q Not the majority?

A Not intentionally.

Q All right. Not intentionally, I see. In fact,the law guardian had to write you a letter about it, right?

A Yes.

The Divorce Judge had also ordered contact be allowed over the phone between Domenic and his father. Ms. Phillipson appeared not to be facilitating this either (R-325)

Q So if you're home and the phone rings, Domenic never runs to the phone and answers?

A Never.

Q And he won't talk to anybody on the telephone?

A No.

Q And what have you encouraged Mr. Murtari to do since Domenic won't talk to him on the telephone?

A I suggested sending him letters is another way but also Domenic enjoy listening to the message on the answering machine so I asked him to leave the message on the

machine.

Q And does Domenic listen to those messages?

A Yes.

Q And do you play every message from his father for Domenic?

A He knows how to do it.

"He knows how to do it." We might assume that if this child forgets to "check his messages" – he doesn’t hear from his father and then the messages are erased for the next day.

Ms. Phillipson did not hesitate to leave her child with "sitters" instead of his father. While willing to acknowledge that when they are alone together, Domenic sometimes trembles and cries when talking about daddy with her – she fails to see her influence in this. She uses the words about valuing their relationship – but her conduct in this proceeding shows quite a different attitude.

Mr. Murtari wants Domenic to have two parents, he values the contributions both can make – and his conduct and testimony are consistent! (R-515)

. . . . (R-549)

The evidence at trial clearly showed that Mr. Murtari could provide a stable and warm environment for Domenic while mom was at Graduate School. He lives in a suburb where there is a good school – which is already attended by cousins Domenic’s age (R-551)

Q Now, next school year he'll be going into what grade in school?

A Well, he should be starting first grade.

Q Okay. Now, is there a school district where you live?

A Yes, it's the Baldwinsville District. I mean, the school where I live on Oneida Street in B-ville, the school is -- kids walk who live in our neighborhood.

Q Okay. It's an elementary school right down the street from you?

A Yes, there's a complex there, yes.

Q Does Domenic have any relatives or friends that go to that school?

A Yeah. I mean, I know a lot about the school because my cousin Cheryl, her two kids go there and potentially they could, with her daughter, end up in the same group.

Q Okay. So they're the same age?

A Yes, because her daughter is in kindergarten now, that's the way Domenic is, so they would be in first grade at the same time.

There was an overwhelming amount of testimony to the strong bond between father and son The following was typical (R-415)

A. Okay. I have seen Domenic and John and my family share meals together. I have seen them take walks in the country together. I have seen them ride bikes, take walks

in the city near my house together. I have seen them play with kittens together. I have seen them play trains together, have birthday cakes together. I have seen them open Christmas presents, read stories, share dessert.

Q Have you observed any affection?

A Yes. I have seen Dom sit in John's lap. I have seen John take him by the hand, get him a drink of water. I have seen John help his son up on the play horse. I have

seen them make hamburgers together. I have seen them –

Q Okay. Have you observed any love between them?

A Yes.

Q How do you know that or what's been your observations?

A Domenic is comfortable with his dad, he sits on his lap, he sits next to him, he looks at his dad and smiles, he looks at his dad when he's done something new and exciting. You know, when he comes to my house we have new toys, he looks at his dad and smiles, looks at his dad with pride.

Q Okay. Have you ever witnessed in the time period we're discussing between March of '97 to the present Domenic looking -- trembling when he's with his father?

A No.

Q What about crying around his father?

A Certainly not that I can remember.

Q Okay.

A I mean, perhaps he has fallen on the driveway or something but certainly not out of discomfort or upset or --

Q Okay.

A No.

Q From your observation of their interaction, is it close, are they close?

A Yes. Definitely.

There is also the presence of extended family – the chance for Domenic to start life long friendships and have stability. Mr. Murtari’s cousin, Cheryl testified that:(R-387)

A I have a five-year-old and a seven-year-old.

Q Do they play with Domenic?

A Yes, they do.

Q Okay. Your observations of Domenic in the last year, has he appeared to be -- what have been your observations of him, is he sad, is he happy?

A Very -- I have had no observations other than happiness with him during the times when I have seen him, which, of course, is with John. He is very -- a very happy boy with his dad.

Q Have you ever seen him trembling --

A No.

Q -- with John? Or have you ever seen him crying?

A Never.

Q Does Domenic play with your children?

A Yes, he does. He interacts well with my children.

Mr. Murtari, by starting his own business, has given himself the flexible schedule he needs to be available to Domenic as he grows. This is a parent who always made time for Domenic and never had to use a sitter. (R-553)

Q I'd like to ask you about the flexibility of your work. Are you saying that -- and I'm asking -- are you saying that you could arrange your schedule around his

schedule?

A Yes, because at work -- I mean, I am the owner of the company, I don't have to report to another boss. When I need to take off, I can take off. And because of the nature of the work, there's a lot of stuff I can do from home after

he goes to bed.

Q Would that be your intention if you did have custody of Domenic, to arrange your schedule around him?

A Oh, certainly, as I -- I mean, as I have done now to the greatest extent possible. When he would be with me I would pretty much plan on being there.

When deciding whether the best interests of the child would be served by a proposed relocation, a court must consider the effects that the move will have on the parent-child relationship. This consideration should, of course, be central to any court's decision. Tropea v. Tropea. 642 N.Y.S.2d 575, 580 (1996). The court must find that there would be "meaningful access" between the parent and the child after the move is granted. Id.

In this case, it should be Ms. Phillipson's responsibility, as the proponent of the relocation, to demonstrate, by a preponderance of the evidence, that John would still have meaningful access to Domenic. She offered nothing of the sort. There is no testimony in her case that goes to this issue. She has failed to carry her burden.

Mr. Murtari has several reasons which prohibit him from relocating. He is the only child of an elderly mother who lives alone in her own home. The move would be a big "uprooting" for her (R-555)

Q Would it be possible for you to move to Denver to be with your son?

A No, I'd be in a -- I have no doubt of what the Doctor said that I could get a job but it would require me to abandon my mother here. She could never -- she's in her

home now, she's used to it, I can't -- I'm between her and my son. I mean, I can't -- I couldn't leave her here alone.

There is no benefit to Domenic in this move. The evidence at trial showed that remaining in the Syracuse area gives this child much needed stability and a good family environment. But yet – the move was granted.

Under Tropea v. Tropea. the best interests of the child is the paramount consideration in determining whether to allow a parent to relocate with a child. Jd. 642 N.Y.S.2d 575 (1996). The burden is on the petitioner to prove that the best interests of the child would be served through such a relocation. Kemp v. Teeter. 675 N.Y.S.2d 250, 252 (App. Div. 1998). In the instant case, it is incumbent upon Ms. Phillipson to prove that a relocation over a thousand miles away would be in Domenic's best interest. She has failed to carry this burden, and the lower court has erred in holding otherwise.

Exhibits presented by Mr. Reagles were introduced into evidence over Respondent/Appellant’s repeated objections regarding no prior disclosure. Respondent/Appellant was overruled and each of the exhibits were admitted despite the fact that Respondent was surprised by these exhibits during trial, despite a prior comprehensive discovery request of all trial exhibits. (R-161)

MS. WALSH:  I would like the record to reflect that I am showing that exhibit to
Mr. Stern.
MR. STERN:  Judge, even when I asked earlier can I see all exhibits which are going to be admitted in so that can I make a decision at once, this wasn't included in that packet.
THE COURT:  I'm not going to repeat it. The motion should have been made before trial for any grievances you had with your requests.  I'm not going to entertain them now.
MR. STERN:  Judge, there's no --
THE COURT:  The only objection I'm going to entertain now during this whole trial has to do with competency, relevancy and materiality only. That's all.  Everything else should have been brought to the Court beforehand.
                                         
MR. STERN:  Judge, may I be heard on this issue?  This is the first time that I have
been -- that I have seen this piece of paper.  I could not have made a motion that I haven't been provided with this prior to trial until this very moment.

. . . .

Certainly, the right to a Jury and proof beyond a "reasonable doubt" is one of our most important right’s in the Bill of Rights. The founders of our nation knew 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 argument which follows is borrowed from a brief in a similar case in Wisconsin, [permission of the authoring attorney was granted] which highlights United States Supreme Court decisions which have upheld the special nature of the parent/child bond. It is but a natural extension this bond also be afforded the protection of a jury, and of a standard of proof of "beyond a reasonable doubt"– that which we afford our most valued liberties. Or, in the alternative, at least "Clear and Convincing." New York State Law does not allow for a jury trial in a relocation case, and the standard of proof is only "preponderance of the evidence", the lowest standard of proof.

In 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 at least 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.

Only a Strong Presumption in Favor of Joint Custody Accords Appropriate respect to the Constitutional protections surrounding the parent-child relationship.

Justices of 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 (7^th Cir. 1987), parental association a constitutionally protected liberty interest.

This is not to say that courts should blindly or automatically impose joint custody arrangements. Clearly, there are many situations 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 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).

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).

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 greater strength than that of parent and child." Michelle W. v Ronald W., 39 Cal 3d 354 (1985).

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 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 (9^th 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 liberty interest in the companionship and society of his or her child. Id at 1418, citing Kelson v. City of Springfield, 767 F.2d 651 (9^th 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."

For all of the above reasons, it is respectfully asserted that the court must reverse the lower courts decision and order the immediate return of the child Domenic Murtari to the Syracuse area, joint legal custody to the parents and primary physical custody should be with Mr. Murtari until Mrs. Murtari completes her schooling and returns to New York.

Respectfully submitted,

James Stern, Esq.
103 E. Water Street, Suite 304
Syracuse, New York 13202

315-475-4010