Child visitation violation & custody modification petition.


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


Index No. V-320-95 John Murtari, Petitioner

— against —

Adrianne Phillipson, Respondent ————————————–

Upon reading and filing the annexed Petition & Affidavit by John Murtari, duly sworn to on the 27th Day of June, 2000, and attached papers, and upon all papers filed and letters and proceedings heretofore had herein, it is:

ORDERED, that the Respondent, Adrianne Phillipson, show cause before this Court at the Onondaga County Courthouse, on the

_____ day of _________, 2000, at ______________ o’clock, as to why an order should not be entered:

1. Finding the respondent in violation of prior orders of this Court.
2. Granting a change in both legal and physical custody of the child Domenic Murtari to the Petitioner.

ORDERED, that service of a copy of this Order, together with the papers upon which it is based, upon Ms. Maureen Walsh, Esq., the attorney for the Respondent, on or before the ________ day of _________, 2000, shall be deemed good and sufficient service.

Signed this ___________ day of ______________, 2000


Justice of the Family Court



Index No. V-320-95 John Murtari, Petitioner

— against —

Adrianne Phillipson, Respondent


1. The Petitioner’s name and address is:

John Murtari (Father) c/o Software Workshop Inc. 55 E. Genesee Street Baldwinsville, NY 13027

4. During the last five years the child affected by this proceeding, Domenic Murtari, lived at:

San Diego, California Jan 1999 – present Syracuse, New York Nov 1995 – Dec 1998 Phoenix, New York Feb 1993 – Oct 1995

5. The name and present address of each person the child lived with during the past five years are as follows:

Adrianne Phillipson, San Diego, California Jan 1999 – present (John Murtari – school vacations, one weekend/month, 6 weeks in summer)

Adrianne Phillipson, Syracuse, New York Nov 1995 – Dec 1998 (John Murtari – school vacation, Thursday-Monday every other weekend, 4 weeks in summer)

John Murtari & Adrianne Phillipson, New York Feb 1993 – Oct 1995 (Marriage)

6. Petitioner has participated in litigation concerning the custody of his child in New York State, but not any other state.

7. Petitioner has no information of any custody proceeding concerning the custody of the same children pending in New York State or any other state.

8. Petitioner does not know of any person not a party to the proceedings who has physical custody of the child affected by this proceeding or who claims to have custody or visitation rights with respect to the same child.

9. By order of this Court, dated Dec 9, 1998, the Respondent was directed:

o To grant the Petitioner six consecutive weeks each summer starting July 1st of each year…

o To grant the Petitioner telephone access to Domenic weekly…

A copy of the complete order is attached (Exhibit A).

10. Since the entry of this order the Respondent has willfully failed to obey the Order of this Court in that:

o Petitioner has never been able to talk to Domenic on the phone. I must always leave a message on an answering machine.

o On April 9th, the Respondent supplied me with summer vacations times (Exhibit D) which do not comply with the Court Order. I have made written attempts through both her and her attorney to get this resolved and had no reply (Exhibits B & E).

This is very important to resolve quickly and that is why it is addressed in the covering Show Cause Order. I try to get cheap ticket prices since I must travel to and from California to pick up and drop off Domenic. There are no refunds if a “mistake” occurs.

o Respondent has attempted to block school access to me when visiting California citing a “court order” (Exhibit B).

11. Respondent has defeated, impaired, impeded, or prejudiced the rights or remedies of the Petitioner in that:

o She has with intent and purpose sought to block contact and the continuation of a normal parent/child relationship between myself and Domenic. To the detriment of both of us.

12. Since the entry of this order there has been a change of circumstances in that:

She has violated promises made in her own testimony which procured the order to relocate to California (excerpts from trial transcript)

Q How else would you encourage contact between Domenic and his father? A I will keep working on the phone, telephone, fax, letters, those are the things. Q Would you encourage Domenic to use those to keep in contact with his father? A Yes.

I write Domenic a letter once a week, many times I enclose a child’s magazine or a simple gift like stickers. I have received only one letter from Domenic in the last 18 months. I have written and asked Adrianne to let me know if he is able to read my letters. I have never gotten a reply.

I have sent him gifts for Christmas, Easter, and his Birthday – I do not even get an acknowledgement of receipt or how he liked them. I have never received even a letter or card for Father’s Day, Christmas, Easter, or any other holiday.

I have never been able to talk to him on the phone. I ask for the best time to call and am just told “anytime”. Yesterday, May 11th, I called and asked to talk to Domenic – the Respondent just said “wait”, I did not hear anything at all and the line disconnected – this is not unusual. I then had to call back and leave a message on the answering machine.

If Domenic and I are not physically in each others presence there is no contact.

Q And will you encourage Domenic to let his father know about his school and other activities? A Yes.

I have never been told (by fax, phone, or mail), by the Respondent how Domenic is doing in school or any other activities. I have asked on several occasions. This spring I decided to contact the school directly. The Petitioner and her attorney attempted to block my access (see Exhibit B).

Q And if his — if Mr. Murtari was visiting in California, would you allow extra visitation? A Yes.

In 18 months, and four trips to California (not counting the summer) – I have only had four hours of extra time on one occasion. The order specifies from 5pm Friday – 5pm Sunday, because of plane schedules I arrive on Thursday and don’t leave until Monday. Each time I ask for a bit more time – and almost every time the answer is no. Before planning the exact days for a trip I ask Adrianne if there would be a better time where Dom and I could be together more – there are no replies.

On my most recent visit, May 4th-8th, I found out from Domenic he has four days off from school at the end of the month as part of Memorial Day – he asked if I could come? I could do nothing. It was too late. In an earlier letter to Adrianne (Exhibit C), I had asked her for guidance. I also found out latter, from Domenic, that the date I thought school was over was incorrect, it was in early June. I did not even get a reply to the letter – I did a wild guess and made reservations for early May and begged for confirmation over a phone message. I finally got a basic fax reply (Exhibit D).

Q And will you encourage Domenic to see his father if his father was nearby? A Yes.

She has never acted in a way to facilitate our contact. Again, during my most recent visit I was able to get permission from the Principal to visit the school. I let Adrianne know that I would be dropping by the school at 2:45 on Friday, right before the end of school, to see his teacher after the kids were released. I arrived there a little earlier and saw Adrianne driving out of the parking with Domenic. She had pulled him out of class early – I learned of no reason.

Domenic does not appear to be happy or developing normally.

o His teacher related to me that Domenic started first grade so far behind in English, that he had to be assigned to a remedial reading class for a good part of the year. Only recently has he caught up to at least an average level. Unlike the other students, the teacher still sends home a book for him to read every day. Without sounding “biased” he is a bright child. In the area of “math” I was told he is in a “talented & gifted” class.

I know Adrianne wants him to be fluent in Japanese, I was brought up bilingual also and can appreciate her concerns and desires; however, it must be tempered to not impede his progress in English. His teacher is “excellent.” I am afraid of what would have happened with someone less capable or concerned.

o At school I was told he was “crushed” when one of his playmates left. There was so much concern about his transition to second grade, that they are planning to keep him and one of his best friends together.

I am afraid he has lost his sense of home and security. Adrianne has a “busy” social life and Dom has told me he stays with “friends” some time. More than anything I think he appreciates my presence because he senses love and stability, allowing him to be more secure and confident.

o On my most recent visit it had been six months since Domenic and I had seen each other. There was no hesitation when we met, he was smiling (eager to show me a grasshopper he had captured), and ready for a hug. Without prompting, here were some spontaneous comments:

“Daddy, I sure do miss your hugs, how about one now!” On Sunday, “Daddy, I sure do wish it was yesterday, then we would have more time.” “I wish I could stay with you forever.” “You know Daddy, you don’t get mad at me, Mommy is always mad at me” – I ask him “why?”, “I don’t know” “Why does it have to be so long till I see you again?” “Will you come visit me in school?”

I try to keep an upbeat tone, when I returned him Sunday afternoon he got quiet as we entered San Diego and as he got out of the Car to go to Adrianne, he started crying and left sobbing as she drove away – it was awful.

o He is now 7 years old and still cannot ride a bicycle. He does not participate in any sports.

I am very concerned about his welfare. Respondent has intentionally failed to obey the order and to keep the promises made.

Respondent does not have his best interest at heart.

Last year Domenic was with me for six weeks during the summer. Adrianne did not attempt to call him on a single occasion.

In the last few weeks of that vacation she wrote him one letter in Japanese. When it arrived I called her and let her know I wasn’t sure if he could read it and if she could explain I would read it to him. She told me not to worry, that he should be able to read it and just pack it away for when he comes back.

Busy at graduate school, she does not have time for Domenic, but yet also refuses to let me have more contact and give him stability. In the long run I am sure it would improve her relationship with him.

I have written personal letters to her on a couple of occasions to seek “closure” from the strong personal animosity she appears to have. That it would be best for all if we could assume a “polite” relationship around Domenic.

Respondent is not a U.S. Citizen and has become a “flight risk”

While she is a registered alien (green card). She has not completed the naturalization process. Domenic also has a Japanese Passport issued.

I believe part of her motivation to leave Syracuse was to just “escape” a community where people did not support her conduct or behavior. My future participation in school activities with Domenic (and perhaps her expected fear that he will show great preference to me in front of others) may motivate her to leave the Country.

Her family is quite wealthy in Japan. She has yet to ever hold stable employment in the United States and it may appear to be a natural means of escape. This would be a disaster.

The State Department and American Bar Association have guidelines for this type of matter.

Petitioner is able to provide a warm and stable environment for Domenic.

I am in the process of building my own Internet business in the Baldwinsville area. It gives me the flexibility to come to/from the office as I desire and to be able to participate in Domenic’s school activity and “be home” after school. I can do work from home after he is asleep.

I am originally from this area and have lived here for the last 18 years and have no plans of moving. Domenic has a “lot” of family here, a grandmother, and also cousins that are around his age and that he could be in the same school.

Most importantly, I can provide him with “two” parents. While I do not agree with what Adrianne has done or her attitude. She is his mother and has a lot to offer him through life. I will make sure she participates with him and that he hears about her around the home – I will pass on the many happy times Mommy and Daddy had together.

I appreciate her desire for him to remain fluent in Japanese. I am sure we can fix the “phone problem” and am also happy to work out a plan with Adrianne and Japanese friends we still have in this area (from the time of our marriage), so that Domenic can practice.

This experience has affected me deeply and made me active in movements for reform (see newspaper story, Exhibit F). I bear Adrianne no ill will and just want the opportunity for both of us to have a normal relationship with Domenic, to ALL our benefits.

13. The petitioner requests the order be modified:

o To assign joint legal custody of Domenic Murtari with the obligation to keep the Respondent fully informed of Domenic’s activities. In the case of disagreement between the parties, or inability to contact the Respondent in a timely manner, the Petitioner has single decision making authority.

o To assign Petitioner primary physical custody of Domenic, returning him to New York where he can start a stable school year in September of 2000 and be near family and friends. Respondent will be given as much vacation and extra time as practicable. A plan will be developed to ensure Domenic has regular opportunities to maintain fluency in Japanese.

o To review the custody status after Respondent has completed her Ph.D. program and has found employment and emotional stability.

14. No previous application has been made to any Court or Judge for the relief requested in this petition.

WHEREFORE, the undersigned respectfully requests:

o That the Order of the Family Court, dated Dec 12, 1998, be modified in the respects mentioned in the above request and for such other relief as the Court may deem just and proper. _______________ Dated __________________________ John Murtari, Petitioner VERIFICATION

State of New York} Onondaga County} John Murtari, being duly sworn, says that he is the Petitioner in the above-named proceeding and the foregoing petition is true to his own knowledge, except to matters therein stated to be alleged on information and belief and as to matters he believes to be true. ___________________________ John Murtari, Petitioner

Sworn to before me on:

_____________________ Date

______________________ Notary Public