Sunday, December 7, 2008

To Whom It May Concern

One of my purposes in writing this blog is to encourage other parents to share their stories about their ordeals with the family courts system. To lead by example, allow me to share my story.

On August of 2002, I moved from Puerto Rico to New Jersey with my ex-wife. During the last months of 2003, due to my infertility, we started an adoption process. In April 18 of 2004, my daughter Sofía was born, and ten days after her birth she moved with us; the following year, on July 21 of 2005, the adoption was completed. The following month, on August 28 of 2006, my ex-wife tells me that she wanted to end our marriage. My ex-wife deserted me and abandoned the apartment shared by us on March 18 of 2006, taking with her our daughter, without my consent. Since then, I have tried to convince her that the joint physical and legal custody is the best for our child and for us, but the she rejects the idea, since she does not believe in the concept of joint custody. To break the impasse on which we were, on September 22 of 2006 I submitted a motion asking for a court order for a Best Interest Evaluation and a Custody Visitation Evaluation. I hoped that this evaluation would have given the Court reasonable criteria to decide the award of custody. The motion was denied on October 20, and unexpectedly since custody was not in question, that same day judge Claude Coleman decided the custody and awarded joint legal custody to both parents and physical custody to the my ex-wife. I appealed the decision on December 1rst of 2006, and my appeal was denied by the judges Gilroy and Lihotz of the Appellate Division on August 9 of 2007. I then filed a petition for certification to the Supreme Court, and it was denied on February 4 of 2008, with Judge Stuart Rabner as witness.

I object this decision for several reasons. First, the custody award ignores the state policy favoring joint custody. Second, the order shows that the trial court disregarded or ignored the basic facts of this case. Third, the fact that Sofía is adopted makes physical custody indispensable to create a healthy parent-child relationship.

The public policy of the State of New Jersey is to favor joint custody arrangements. My case meets the conditions for such an arrangement: both parents are fit, both have a close relationship with the child, they live close to each other, both can cooperate with each other, and both are willing to accept custody. To deny a parent the custody of his/her child, that parent has to be proven unfit, and this is not the case. On the contrary, the very same court that denied me joined custody, affirmed the fitness of both parents.

The decision awarding physical custody of my daughter to my ex-wife was based on an absolute lack of knowledge about the case. In the Final Dual Judgment of Divorce (January 2007), the trial court’s judge, Claude Coleman, refers to the my ex-wife as “the natural mother” of Sofía, who had breastfed her, when since the very beginning of this process has been stated clearly that Sofia is an adopted child and therefore, my ex-wife was not her natural mother, and it was biologically impossible for her to breast-feed Sofía. Furthermore, the trial court made up speculations on who had been the primary caregiver of the child before the separation, and on how strong was the bond between my daughter and me. This erroneous affirmation reveals one of three equally terrible things: that the judge lied about the case, that he had no knowledge whatsoever about the case he was dealing with, or worst than that, he did not care enough to get that knowledge. All these choices require the reversal of a custody award based on such incompetence and lack of knowledge. Evidence of this was submitted to judges Gilroy and Lihotz of the Appellate Division and judge Rabner of the Supreme Court, and they deliberately ignored it, following the unwritten law of “one hand washes the other.”

The fact that Sofía is an adopted child makes this situation especially delicate. In the absence of a bloodline between a parent and a child, like in the case of adopted children, sharing the dynamics of day-to-day life is what creates the bond between them. For an adoptive parent, the physical custody of his child is not one of the ways to create a bond with his child: it is the only way. Since Sofía is an adopted child, depriving her from one of her parents will take away, for the second time, what life has already taken once: the love, comfort, and security that only her father and mother can give her.

There are even ethical connotations that the Essex County Bar should consider. Judge Stuart Rabner, who served as witness when the petition for certification that I filed to the Supreme Court was denied, has the same last name as one of the attorneys of my ex-wife, Rabner, Allcorn, Baumgart and Ben-Asher.

I have never asked sole custody of my child. I haven’t because I truly believe that sole custody is a something that harms children by depriving them of one of their parents, something that should be avoided and that should be granted only if one of the parents represents a danger to his/her children. What I ask is for the joint physical custody of my daughter, so that my daughter could stay with each parent the same amount of time.

At this moment, since custody cases are never closed, I am still looking for a new opportunity to present again my request for joint custody before another judge, a judge sensible and compassionate enough to award a custody arrangement that protect the well-being of my daughter. I ask for a change of judge, because judge Claude Coleman, who has been in charge of the case since the very beginning, has shown no interest whatsoever on dealing responsibly with it, even when his decisions have no relation with the facts of the case, even when my ex-wife has taken our daughter out of state, even when my ex-wife has broken the parenting schedule, even when my ex-wife has moved our daughter out of town without discussing the issue with me.

I will never give up in my fight for joint custody. I cannot. My child is waiting for me.

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