Letter to Judge Bersani, ONE

5 January 1998

Dear Justice Bersani:

Recently, you made a very critical decision for our child. I appreciate how difficult these decisions must be and I hope you can share my anguish at the result. While I know you are busy, there a couple of items I wish to bring up for your consideration.

A review of potentially negligent conduct by the Law Guardian and Day Care Center.
Why the process by which we make these decisions must be changed.

I was very happy with the effort Mr. Stern expended on my behalf. I did not make him aware of my plan to write the Court, or of my concerns about negligent conduct. He did let me know all contact with the Court was to be through him - I am violating his guidance. Please understand this letter is from "me" alone and should not reflect on Mr. Stern at all; indeed, after having experience with a lot of "family law" attorneys - he is one of the good ones.

REVIEW OF CONDUCT

Judge, I was absolutely shocked to hear Dom did not eat or drink at daycare, or play with the other children, for almost a year. Especially when the reason was, "I want my daddy." I had been visiting Dom at daycare during the divorce proceeding. I was then blocked from visits by Adrianne with support of Mr. Lupia, the Law Guardian. During this time (Dom was 3-4 years old), he would ask me why I didn't come to daycare any more, why I couldn't help - I never realized the private stand he was making!

I believe Mr. Lupia was aware of this conduct and concealed it from Judge Major. During the trial I even called the director of the day care center, Ms. Roche, as a witness on my behalf. At that time, I was not aware of her knowledge of this incident, or the extent of her conversations with the Law Guardian - so the issue of Dom's failure to eat did not come up. Mr. Lupia did not question her about this, but in his final report to the Court (at the conclusion of the Trial), he does mention his conversations with the Center, that Dom was not interacting with the other children - but he fails to mention the child is not eating/drinking, with the express reason that he wants his father! I now welcome Mr. Lupia clearing the air on what happened here - which I could not ask during the trial.

Judge, maybe this is supposed to be okay. The Center was not obliged to report the conduct? The Law Guardian was not obliged to report the conduct? And I guess no one was obliged to let me know what my child was doing - after all, I was non-custodial?

REVIEW OF THE PROCESS

While I did not expect to get the full relief I requested - it came as quite a shock to find this move approved and Dom's contact with me actually reduced. As I have passed through the "system" it has surprised me how little hard proof is necessary before a parent/child relationship is devastated. How overwhelming the personal biases and feelings of an individual Judge can be in controlling the conduct of the attorneys and the final outcome. How few safety checks there are to make sure attorneys, psychologists, and other professionals do a proper job. In criminal, and many civil matters - the jury provides a "sanity check."

Family law has evolved into a juggernaut of a system. I am involved in groups trying to change the system, but it is a difficult and seemingly impossible task. There are so many groups with a special interest in the outcome, so much money involved - the best interest of the family seems lost. It is so hard to imagine dramatic change taking place in a system that is so entrenched - who can overcome Ozymandias?

I believe jury protection should be afforded the parent/child relationship. The "default" outcome should be equal participation and access for both parents in a child's life. This would be in the best interest of not only the child, but the parents. Anyone wanting to challenge this presumption would have to convince a jury otherwise. I genuinely believe a panel of jurors would not have affirmed some of the judgments made in this matter, and in so many others. In the "list" which follows I highlight some troubling aspects of what has happened here:

Issues of evidence

"Respondent's assertion that her move is motivated by a desire to escape the area, and her annoyance at the growth of Domenic's relationship with his father is not borne out by the evidence", p. 4
"…no evidence to indicate Petitioner is unfit or incapable of caring for this child.", p. 2 - there may be concerns here based on admitted conduct by Petitioner.
- This child did not eat/drink at daycare for approximately one year after Petitioner blocked access to Dom's father. Domenic clearly expressed his desire for his father. In cross examination Petitioner never even tried to get the help of the Dom's father in dealing with this.
- On several occasions the Petitioner closed the door in their child's face at the end of visitation. This one is hard to understand or rationalize.
- Domenic trembles and cries when at the Petitioners regarding his father. It is clear Domenic senses that "daddy" is not a proper topic of conversation.
- While happy to complain about toilet training - the Petitioner was unwilling to sit down together with Dom's father and the pediatrician.
- The Petitioner did not hesitate to say she felt Dom would be better off with a baby sitter - than with his own father, that she did not trust his father. Her hostility, and label of herself as a "survivor", clearly show a bunker mentality since the Divorce.
"…there continues to be an undercurrent of suspicion and disapproval between the parties, and especially on the part of the Respondent…", p. 3
- What was overwhelmingly clear was my desire for a "civil" relationship between parents as being in the best interest of their son. My testimony and correspondance were very clear on that. I want to share custody with the Petitioner. Her attitude was quite the opposite.
"…Respondent freely admits he does not pay the support as ordered. He contends he is establishing and maintaining his growing business … This Court is unpersuaded by that Notion.", p. 3
- I am working in my field, and trying to be a good father to his son, and a good son to my mother. In the Divorce, Judge Major, did not agree with my choice and set the support higher than actual income. There has never been an accusation this business is a "false front" to escape support. This is a personal decision on my part (and which many professional people make to spend more time with family). I valued the warmth of my relationship with my father more than any money could provide or replace. Am I to be punished? Is Domenic to be punished?
- How far should the power of the Court extend? My "visitation" schedule with Domenic included two 4 day weekends a months, Thursday PM - Monday PM. I wanted to spend as much time with him as possible, am I not allowed to work in my field at a job that gives me this freedom to be with my child. Judge, your present order basically strips me of regular contact with Domenic during the year, and loads six weeks in the summer. How many "regular" jobs will give me that time off? This business affords me the ability to support my child in many areas. Have I lost the right to make that personal decision?
- Petitioner has not worked since April, in any capacity. She was clearly aggravating her financial condition in advance of this proceeding - this should not be rewarded.

"Respondent is quick to solve the relocation problem by having the child remain in New York … However, it clearly ignores the child's relationship with Petitioner who has been his primary caretaker since birth.", p. 5
- The evidence seemed clear that Domenic is happy and enjoys contact with his father. That he has regular contact with the extended family, a home environment.
- The testimony by both parties was clear regarding Domenic's conduct in transition. He never cries when going to his father, and has cried repeatedly on multiple occasions when returning to his mother.
- There was no evidence presented of a "warm" relationship between Petitioner and child.
- The Court should pause and consider this as unusual, given the disparity in time between the parents (10 days with mom, 4 with dad). Also, the preceding items show the child has a very strong attachment to his father, and has expressed his desire of who he feels is his primary caretaker.
"…Petitioner still the better custodian for this child, who despite all that has transpired, has maintained an open visitational relationship of Domenic with his father.", p. 4
- Judge - it is difficult for me to begin to understand the basis for this remark? Respectfully -- the summary of the preceding items would seem to show quite otherwise. Her demonstrated conduct is hostile toward father and child (closes the door in their faces). There was certainly no evidence of her helping the relationship between father and child.
- Petitioner interfered repeatedly with ordered Sunday visits until the Law Guardian had to intervene.
- While under Petitioner's custody, Domenic has acquired the habit of not coming to the phone. I am forced to leave messages on an answering machine, when asked if she plays the messages for Domenic, her response was, "Dom knows where the machine is." We must assume if Dom doesn't remember to play daddy's messages, he doesn't get them at all.
- Prefers "sitters" for Domenic instead of his father.
"…Respondent can work literally anywhere in the country…including California.", p. 6
- I testified regarding this. You saw my 82 year old mother on the witness stand. She lives alone in a small town, and I am her only child. Is it your personal decision I should leave her behind in the care of others?

Best interest of the child to avoid disruption of move

Ms. Phillipson has not worked at all since April of 1998. By her own admission, she does not even now how much money she will be paid in San Diego. This is not the behavior of a person in financial crisis.
The evidence was clear regarding Domenic's reaction to long separation me. He did not eat at daycare, and on occasion was so distraught he had to be kept home from school.
Domenic has adjusted to the present schedule and care providers. To uproot him across the country is certain to cause him great anxiety and pain. This should be avoided unless absolutely necessary.
The Petitioner is not moving to a stable environment, but going to School with no certainty of completion. I can provide Domenic with a warm family environment, and the chance to form stable relationships with other children in both school and extended family.

Judge, I bear you no ill will. I know you tried to do a good job, as do others. But I really feel everyone would benefit from the decision of a jury in these critical family decisions. I plan on appealing this decision and others made by the system, but it will be difficult, for Ozymandias has spoken.

Sincerely yours,

John Murtari
CC: Ms. Maureen Walsh, Esq.
CC: Mr. Joseph Lupia, Jr. Esq.
CC: Mr. James Stern, Esq.