Editor, Parentadvocates.org
Ms. Lynch did not lose custody of her 5-year old daughter because of any proof that she is a 'bad' custodial parent, but because of the vast web of corruption that former disgraced New York Senator Guy Velella, his father Vincent Velella, and all their buddies in the courts and politics in the Bronx created and operate, even now, after both Guy and Vincent Sr. have died. Their legacy lives on.
On August 12, 2011 Tricia Lynch, mother to 5-year old Emma Lynch (who may soon have the name Velella), and the former girlfriend of Vincent “Vinny” Velella Jr., asked the Appellate Court, Second Department, for leave to appeal the ruling made in July 2011 to give sole custody of her daughter to Vinny Velella without justification….Unless you count in the web of “friends” and “family” that former disgraced Senator Guy Velella, Vinny’s dad, left behind when he died in January 2011. Her papers, submitted by her Attorney Alexander Potruch (who said the papers were created and submitted only for media coverage) were thrown out and the Second Department's ruling that Tricia Lynch lost custody of her daughter Emma, was affirmed on the spot not because of any proof that she is a 'bad' custodial parent, but because of the vast web of corruption (see also here and here) that Guy Velella, his father Vincent Velella, and all their buddies in the courts and politics in the Bronx created and operate, even now, after their deaths. I call people who wield power through bribery and extortion, 'cross-over politicians', everybody knows the politicians of Westchester as 'teflon pols'. It doesnt really matter what party you are from. Guy Velella 'owned' the Bronx and Westchester, and as Chairman of the powerful Senate Insurance Committee (1989), held sway over New York State.
Vincent "Vinnie" VelellaIn fact, Trish's former boyfriend and Emma's father Vinny Velella is, since May 2008, Acting Program Manager, Long Term Care, at The NYS Department of Health.(see p. 18 of Dr. Kathleen McKay's Parenting questionnaire), Dr. McKay, the Director of Westchester Jewish Community Services Court Assessment Program), prepared a Forensic Mental Health Evaluation of both Vinny Velella and Tricia Lynch that was kept "in camera" by Westchester Family Court Judge David Klein at the trial over custody of Emma Lynch. Klein would not allow any copies outside of the courtroom (see Ressler email below), and would not admit the memorandum prepared by Jessica Ressler, Ph.D, that opposed the McKay Forensic Evaluation. It is also important to note that sources say that the Velella family (and friends) have contributed alot of money to WJCS. Two key questions that should be in the reader's mind are: (1) Why did Vinny Velella insist on keeping jurisdiction in Westchester Family Court, when he lives in the Bronx, and Tricia lives in Connecticut? (See the Final custody stipulation, p. 13); (2) Why did Judge David Klein keep Dr. Ressler's memorandum on the problems with Dr. McKay's report out of the trial?
Family Court is well-known for making decisions that seem unfair and which destroy families. Of course Family Court is not the only court in New York State that places itself squarely under the guidance and oversight of the leader of all corruption in the Courts, Jonathan Lippman (see also this other article on Silver, Lippman). But when mothers have no rights to custody under the unwritten rules of an evil game whereby a father or guardian can simply make any attempt to get control over a child and usually succeed, this raises the level of public concern because there are children's lives at stake.
Judges are told to ignore family situations that are not in the interest of the appointed law guardian, the appointed psychologist/family counselor, or the appointed anybody in favor of the party "protected" by the people, no matter what the circumstances. The standard excuse for giving a child to an abusive parent, guardian, or 'friend of the court' is, as Martin R. Gold, a member of the First Department’s Departmental Disciplinary Committee, said in an interview after hearing hours of testimony (at the court corruption hearings in front of Senator John Sampson): “It’s understandable. …If things don’t go well for them, they complain about their lawyers, they complain about the judges and when they don’t get their complaints heard, they complain to the superior judges and the appellate judges, the state Senate, and everybody else.” In other words, "ignore these complaints", they are baseless due to the fact that those who complain dont have any legal rights to what they are complaining about, and the judges see through them.
Gold really is supporting the biggest fraud of our judicial system, namely the practice of giving judges their jobs for life (Federal Court) and appointing judges through the very absurd judicial election process in New York State, and immunity from prosecution for anything that they do while on the bench - or even off. The recent sentencing of corrupt Judge Ciavarella to prison for 28 years after accepting bribes from a youth detention center in the "cash for kids" case is a very rare occurence.
People who do not understand that the rich and/or powerful can get what - and who - they want, when they want to, is headed for trouble especially if there are children or property involved. Tricia Lynch did not think about what it might mean to be part of "the Velella Family" when she met Vincent "Vinny" Velella in 2004.
From
Tricia Lynch:In 2004 I was in my 3rd year working as a Teacher of the Speech and Hearing Handicapped (TSHH) for a school that specialized in educating children with autism from ages 2-5. Additionally I was completing my masters degree in speech language pathology at Lehman College in the Bronx. I adore and embrace every child and take pride in helping them with one of the hardest disabilities one could have and making their day a little easier. During the summer of 2004, I was introduced to Mr. Velella through a colleague of mine. Later that summer, Mr. Velella contacted me and we pursued a relationship from then on. During our relationship, Mr. Velella was going through a very difficult time in his life as his father was in prison. I did not judge Mr. Velella by his fathers actions because he seemed like an honest, caring, and warm person. My home was always open to him when he needed support.
In April of 2005, I became pregnant which was a surprise. Both Vincent and I were shocked by the news and were conflicted as to how to handle the situation. Our relationship was just getting started and this seemed to scare the both of us. I immediately discussed options (adoption)with my doctor, my family, Mr. Velella and his family. After careful consideration and understanding where Mr. Velella was coming from, I decided to keep Emma, my daughter, as I saw her has a blessing. Mr. Velella, on the other hand, made it clear he did not support my decision and offered to pay for an abortion by a friend of his.
Shortly after, Mr. Velella’s sister called me to tell me her brother would never be there for Emma but that her father, Guy Velella, would support the child financially. I explained to her that my deciding to keep and raise Emma was my decision and that I accept all the responsibility for her. Having her was not meant to hurt Mr. Velella in any way. I told her that whatever he decided was to be his decision, but Emma would always be available to him if he ever changed his mind. Mr. Velella was well aware that my father and I are extremely close and I always wanted that for Emma as every little girl needs her father. At that point, our relationship ended.
On November 25, 2005 Emma was born. That was the best day of my life. We have been blessed with the most endearing, loving, sweet, strong and intelligent daughter that a parent could ask for. I raised this beautiful little girl from birth and everyday I strive to be a better parent for her. There is no better gift in the world than to be a mother. I informed Mr. Velella in the hopes that he would want to see his daughter. He came a few times, but not to visit with Emma. He came with attempts to scare me with all the people his father knows. However, I always tried to stay positive in the hopes that his anger towards me would pass. Not living that lifestyle and attempting not to be bullied, I filed papers in the Westchester family court house in January of 2006 seeking sole-physical custody of Emma. In late 2007, I was awarded sole-physical custody of our daughter. From that point on things grew progressively worse. Despite all my attempts to facilitate a relationship between Emma and her father, his anger towards me grew. What he didn’t understand was that she is extremely close to my father (he retired to take care of Emma while I worked) and she understands that every girl needs her daddy. She couldn’t understand why her daddy was so different. He was so focused on hurting me that he only hurt her. In August of 2010, custody was awarded to Mr. Velella.
I live a completely different lifestyle than Mr. Velella. I help people everyday, I smile and laugh and try to see the good in things. I don’t try to hurt anyone or hold grudges as I see no point. I try to live a happy positive life. I am outspoken and when I see something wrong I will be the first person to speak up, but in a constructive way, not a harmful one. Mr. Velella knows what kind of person I am. That is why I cannot understand why he would do this. Anger is a terrible curse. More importantly, how can our judicial system allow for this. Clearly, power and money are more important than the welfare of children. What scares me the most is that my daughter runs a high risk of learning an awful way to get what she wants.
Tricia wrote to her Attorney, Jessica Ressler, of Farber, Pappalardo & Carbonari about the traumatic transition times when Emma was taken by her father:
To: JessicaR
Sent: Sun, Jun 7, 2009 9:32 pm
Subject: Emma
Jessica,
At 5:30 or so today, Vinny called and told me to bring Emma to his mother's house. I said no, I will drop her at your house. Emma cried the entire way down, I was able for brief periods to calm her down, but failed. When I pulled up to his house 10-15 people, including children were outside. Vinny yelled, god she is already crying, while laughing about it to the others. I got out, all adults approached the car with arms folded shaking there heads starring. Emma was hysterical, screaming I am not going, I want to stay with my mommy, I need my mommy. I tried to get her out of the car seat, but she grabbed the button so I couldn't unlock it. Then, she jammed my arm between her feet and the front seat while pushing up, screaming everything above. Vinny came to the car yelling you are prolonging it, take her out, while looking at his sisters. My arm was pinned to the front seat. I said you try, he was pissed, I said no and fought Emma to get her out. I got it undone and took her out. She wrapped her body, arms and legs against me. Vinny tried to pull her off, but he was pulling me instead. He said put her down. I let go and held my arms out to the sides, so he could see. It took two tries and he peeled her off me and some of my hair. He yelled where is her bag. I went to the trunk and grabbed her bag and toys, he walked down the block laughing, while she was screaming to me to get her. His sisters stood there, arms crossed, tape recorders and cameras, I passed them her things, they just starred me down. I looked over at the children on the lawn, they had the same look. Everywhere i turned, there were people. I didn't even get to say a goodbye and tell her I loved her.
This is not right jessica, this is not a game or a joke....this is my child for christ sake.
Tricia
Tricia wanted to have full custody of Emma, so she filed for this in 2006. When Emma was 11 months old, Tricia's lawyer at the time, Marilyn Faust, suggested that she find a law guardian for Emma. Theresa Daniele was signed on by court order. Daniele is well-known in the Wastchester courts as taking on cases involving child custody disputes, which seemed odd, as Tricia was not in any kind of dispute then with her former boyfriend, Vinny Velella. She would later understand why Ms. Daniele wa brought in. Ms. Daniele never saw Emma after one visit in 2006, until 2009, when Tricia made an appointment with her to meet Emma and discuss what was going on with her, but Daniele cancelled. She told Tricia that she had visited with Emma and her father. Tricia drove to Daniele's office anyway, and spoke with Daniele, who told her that Vinny was "not the smartest star in the sky". (Vinny evidently has learning difficulties and is dyslexic) and that Emma should remain in therapy. Tricia did not believe at that point that Daniele would turn against her, especially since the Appellate Court Second Department in Corigliano v Corigliano (2002) looked askance at bias and potential conflicts of interest in the appointment of law guardians for children.
When Tricia decided to move to a house in Connecticut with her parents (her father retired so that he would be at home with Emma) she asked Vinny to support her move, and he agreed as long as jurisdiction for all issues remained in the Westchester Family Court, notwithstanding the "Father's residence in the Bronx and the Mother's in Connecticut." (p. 13, paragraph 29.). This was a fatal error on Tricia's part. The final custody arrangement giving Tricia full physical custody of Emma was signed by her, Vinny and Judge Charles F. Devlin on August 17, 2007.
The situation deteriorated at this point. Vinny was suddenly determined to take full custody, and he was not going to let anyone get in the way of reaching his goal. He hired Attorney Gordon Burrows to help him get Emma. Burrows has been a county legislator in the 15th District since 2005. Prior to that he was a member of the City Council. Burrows has worked as a private attorney for 20 years. His father Gordon W. Burrows was a Supreme Court Judge.
Attorney Gordon Burrows is, sources tell the author, a friend of political crossovers, especially the Velellas and all their "friends". When he and Vinny Velella go to any Court both are ushered around the security system and into the Courtrooms, never having to go through any security. His political pull can be seen in the cocaine incident, when he, Burrows, and Timothy Cacace were pulled over by police at a Mobil station in Queensbury in February 2010 and both were found snorting cocaine. Burrows also had listed in his record several incidences of domestic violence. He was fined $250. In his other cases he is said to be abusive to the opposing party (record of victim Diane Rotanelli in Michael Rotanelli's divorce case). He has friends in high places. Realizing that she should try to remove the custody case from Westchester Trish made a motion in 2008 to move the custody battle to Connecticut, where she was living , to remove jurisdiction from Judge David Klein. Gordan Burrows showed up with Vinny Velella, and told Judge Axelrod that he could not practice law in the state of Connnecticut but that he was working pro se with a Connecticut law firm. Axelrod would not let him continue, saying his lawfirm must be in court in order to proceed. Axelrod then spoke by telephone with Judge Klein in Westchester, and they agreed to send the case back to Klein's courtroom, as Mr. Burrows could not represent Velella in Connecticut. This had the effect of ending Tricia's custody of Emma.
Then Judge David Klein ordered that both Tricia and Vinny would share custody equally, 50% each. Trish's Attorney, Jessica Ressler, emailed Tricia that something very unusual was going on in Judge Klein's courtroom - namely, she could not submit the report of Dr. Juliet Ressler, who opposed the report of Dr. McKay saying full custody of Emma should be given to the father. Below is an email Ressler sent to Tricia:
From: Jessica Ressler
Jessica ResslerSent: Thu, Jun 25, 2009 4:43 pm
Subject: Forensic Report/File
I called over to Judge Klein's part today to secure permission to send a copy of the forensic report to our consulting expert. The court attorney said she would not allow me to give the expert a copy of the report and she wasnt even allowed to read it in our office. She did not want a "trial within a trial". I have never heard of not being able to give your expert a copy of the expert report. This is after having waited weeks to gain access to the report as your attorneys and initially being told that we could only read it in court and take notes. I also am not allowed to look at your court file tomorrow as they need to "clean it out" and remove any confidential information.
Jessica
Tricia went to Senator John Sampson in 2009 for relief from the progressive despair she was feeling that the Velella family would take Emma from Her. Dilay Watson, who worked with Sampson, emailed her back (see below):
To diwatson@senate.state.ny.us
Dear Ms. Watson,
I met with you on 6-23-09, hoping to prevail upon you for help. I understand that there is presently a crisis in Albany and understand that your time is limited. However, you said to send you any pertinent
information. I have just received this email from my attorneys (please read below). Following a call to the attorneys, it is my understanding that not only is this illegal, but it will cost me another 15,000+ to fight this. Please advise with any suggestions.
Thank you again for your time,
Tricia M. Lynch
From: diwatson
Hello Ms. Lynch,
I am writing to let you know that we are looking into this matter. I'm afraid I do not have an answer for you at this point, but I wanted to let you know that we are taking this issue very seriously, and we are trying to find a way to help. Please do not hesitate to send any additional information that you believe may be of assistance. I will contact you again as soon as we have a better idea of how to proceed.
Thank you so much for your patience.
Dilay Watson
Trish never heard from Senator Sampson or from anyone in his office, again.
During 2009 Theresa Daniele brought in Dr. McKay to do a forensic evaluation on Emma. The report urged the Court to give full physical custody of Emma to Vincent Velella. Tricia went to another evaluator, Dr. Juliet Ressler, who did not agree with Dr. McKay. The trial took place June 2009-June 2010 in the courtroom of Judge David Klein.
On August 9, 2010, Westchester County Court Judge David Klein suddenly ordered full physical custody of Emma go to Vincent Velella, and supported his decision with the sentiments and assessments of Dr. McKay and Theresa Daniele, both of whom said that Emma should be with her father. He ignored the report written by Dr. Juliet Ressler and would not allow this into evidence.
Theresa Daniele supported Judge Klein's decision and opposed Tricia's application to the Appellate Division, Second Department, for a stay of execution of Judge Klein's order pending an appeal. Tricia and her Attorney Alexander Potruch filed an Appeal to the Appellate Division, Second Department, and a Cross Motion to Respondent Velella, now represented by Patrick Lawless of WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP
Affirmation of Tricia Lynch
TRICIA M. LYNCH, being duly sworn deposes and says:
1. I am the Respondent-Appellant in the above-referenced matter, and submit the within Affidavit in support of my cross-motion for an Order as specified in the Notice of Cross-Motion, and in opposition to the motions by the Respondent Law Guardian seeking inter alia to dismiss the subject appeal and to grant an extension of time within to file their Briefs.
THE PROBLEMS
2. Although I am granted limited time to spend with my daughter pursuant to the Decision and Order of the Family Court, Westchester County (Exhibit “C”), the Respondent’s behavior during the last four months has again established the enormous infirmities that he demonstrated as a potential custodial parent be specified at length in the Brief. (Exhibit “D”, pp. 32-46) He has continued to behave in a selfish and immature way to further prejudice the wellbeing of our daughter Emma.
VISITATION PROBLEMS AND THREATS
3. During the last several months, he has unilaterally changed the weekend visitations and then threatened to bring Emma to the police station or leave her on my doorstep if I do not take her when he has directed me to do so. He has attempted to modify the mid-week visitation from Wednesday each week to every other Tuesday and/or Wednesday and, if I do not agree, he told me that he would bring her to the police station and take me back to Court. He has threatened me that if I kept Emma any additional time, which he had “arranged” with Emma, he would call the police which resulted in Emma becoming hysterical about returning to him earlier. As recently as November 23rd, he again unilaterally changed the schedule with no notice to me which, as a result, I missed a birthday celebration at a party that the priests has planned for her.
UNILATERAL DECISION MAKING AND PARENTAL NEGLECT
4. As is his custom, he filed a claim against Dr. Garcia’s office in the State of Connecticut alleging “medical misconduct”. This has been his pattern from the beginning; he previously filed a complaint against Emma’s therapist, Dr. McNamee. He testified at the trial that, although he was not happy with Dr. Garcia’s decisions, he did not communicate with him for a period of over two and a half years, except on one occasion he came to his office. Dr. Garcia’s office had problems with him because he insisted on tape recording each and every conversation. (See Exhibit “D”, pp. 42-43)
5. He became enraged when I observed bruising on Emma’s upper thigh which occurred when he was with her. He told me he had no idea how it happened. When I told him to ask the school, he told me that “you do it and make a fool out of yourself”.
6. He failed to cooperate in advising me of the identity of the pediatrician until after Emma was treated. While the selection process is clearly his alone under the Decision and Order of the Family Court, he is required to advise me of this information. (Exhibit “B”, p. 9)
EMMA’S BEHAVIOR
7. I have attempted to address certain of Emma’s problems with him with little or no success:
•She was returned wearing diapers since she is often pooping in her pants and I have also learned that his sister (Lisa) who supervises Emma most of the time, makes her wear diapers as a punishment.
•He inaccurately claimed I told Emma that she was not allowed to attend a birthday party with her friends and her father which was untrue which greatly upset her.
•His sister, Lisa, at a gym class I attended, became extremely distraught when Emma ran over to me, and grabbed both of her boys and yelled “I am not fucking dealing with this every other week”.
•On November 19th, I attended a party for Emma at Fun Craft in Scarsdale. No one acknowledged me as I entered except Emma who was elated I was there. She became hysterical. The Respondent’s mother and sister made a number of negative comments about me in front of the child.
EDUCATION
8. He claims that I was unable and incapable of helping Emma with her homework which, as a consequence, created anxiety in the child when we do homework together.
At the parent/teacher conference on November 22nd, the teacher explained that although Emma is “bright” she is “having difficulty following directions, listening, has inadequate attention span and difficulty completing activities and does not always participate in prayer”. Ironically, this behavior mimics her prior experience behavior at the daycare center in the Bronx where Respondent had previously enrolled her. Basically, the teacher (Mrs. Kamfer) did not know about the parenting situation, including the access schedule since the Respondent never told her.
THE RESPONDENT’S CONTINUING BEHAVIOR
9. As referenced above, the foregoing demonstrates that the Respondent’s conduct, as proven at the trial, has continued since he is empowered by the Trial Court’s Decision. While the problems of our child escalate, she remains in an unfortunate and unhappy environment at the Vellella compound in the Bronx, where the Respondent is only a minor participant. In the meantime, his attorney and the Law Guardian (who for reasons best known to her has blindly adopted Respondent’s legal positions in each and every respect), have intentionally refused to comply with this Court’s Scheduling Orders. The purpose is obvious; not only will they have enormous difficulty in submitting a brief which is truly responsive to the overwhelming facts specified in our Brief, they hope that with the continued passage of time, there may be reluctance on the part of the Court to change the status quo. While we do not believe that the Court will go beyond four quarters of the Record on Appeal, we respectfully submit that the Scheduling Order must be complied with which we have scrupulously done but the Respondent’s counsel and the Law Guardian have not. We request, therefore, that they be given a limited period of time to file their Briefs and that oral argument be scheduled as soon as possible.
CONCLUSIONS
10. By reason of the foregoing, it is respectfully requested this Court enter an Order granting the relief requested in the accompanying cross-motion, denying the motion by the Respondent and the Law Guardian, and granting such other, further and different relief as to this Court may seem just and proper in the premises.
TRICIA M. LYNCH
23rd day of December, 2010.
Alexander Potruch, Tricia Lynch's new Attorney, summed up the case as follows:
THE DYNAMICS OF THE CASE
Without stating any real basis at law and with few if any facts supporting his decision, Judge Klein issued his order of June 2, 2009 radically changing the access that the parties had to Emma, then three (3) years old, by equally dividing her time with them. In doing so, he effectively dismissed appellant’s petition and disregarded the “change of circumstances” doctrine which was the basis of respondent’s petition.
Lacking any foundation for its introduction into evidence, he nonetheless relied on the conclusions made by the forensic psychiatrist in her report. It was from that point that the Court, together with the Law Guardian, and the respondent’s attorney, joined in a mantra criticizing appellant again and again without factual foundation, as will be demonstrated below, claiming she engaged in unspecified conduct contrary to Emma’s best interests. Ultimately, Judge Klein, who was wedded to this initial determination, inevitably adopting her supplemental report (consisting of two (2) hours of interviews) and by awarding custody to the respondent without making any specific factual findings except an incorrect one regarding Dr. Jimenez’ testimony involving her examination of Emma.
This reply brief highlights the myriad of misstatements, inaccuracies, half-truths and deceptions in the briefs submitted by the respondent and by the Law Guardian. Most significantly, the testimony of the respondent himself, as will be demonstrated below, substantially undercuts the veracity of his own attorney’s assertions.
THE TRIAL: A BRIEF OVERVIEW
Both the respondent’s counsel and the Law Guardian argue that the trial Court listened to the witnesses and, after doing so, rendered its determination. Significantly, the trial Court rendered no findings on credibility since if it did, the respondent’s testimony would be found to be inconsistent, incomplete, ignorant, self-serving, and not worthy of belief.
They ask this Court to ignore the overwhelming testimony at the trial demonstrating that there was no change of circumstances whatsoever. Of the non-family relatives, the only witness who testified in favor of the respondent was Dr. McKay, whose testimony was grossly flawed as delineated in our brief, and Dr. Jimenez who refused to attribute the alleged comments made by her to Dr. McKay. All the other witnesses, including the therapists and mental health professionals, uniformly indicated that of the two parents, the appellant was the only one who attempted to address and resolve any issues that Emma had; that she consistently acted in the child’s best interests; that she tried unsuccessfully to get the recalcitrant respondent involved; and that he continuously demonstrated an obdurate and inflexible attitude throughout. Instead of crediting the testimony of these professionals who knew Emma, Judge Klein cavalierly dismissed them by stating “the mother and her chosen experts’ inevitably came to the conclusion that “the father was responsible”. (Decision, p. 8). The trial Court ignored the evidence that demonstrated his consistent conduct in refusing to involve himself with appellant’s attempts to discuss Emma’s issues and to tell her what happened when the child was with him (App. Br., 32-35).
What is most regrettable is the manner in which Judge Klein conducted the trial. He made certain that the record was as limited and could not be expanded to include evidence that would be contrary to his initial determination on June 2nd. He did this in a number of ways including: the failure to qualify Kathy Repole as an expert witness; the failure to permit the introduction of Dr. Jimenez’ report into evidence;the failure to permit counsel to look at Dr. Jimenez’ report; he admonished the appellant’s counsel just prior to his cross-examination of Dr. McKay as if she were a special witness entitled to elevated status; by demeaning Dr. Lesser’s role and by refusing to permit the introduction of her highly critical Report into evidence; and by making inconsistent rulings regarding the introduction of evidence involving events which occurred prior to August 17, 2007. (2/4/10, 52)
Among other things, Judge Klein told appellant’s counsel as follows:
“No no no, just a second here. I want to make this clear. I’m not going to turn this into an attack on Dr. McKay. It’s not going to happen.” (12/3/09, 8, emphasis added).
We acknowledge that the trial Court made one absolutely correct comment; - “the Court recognizes that the child’s mother has devoted her very life to what she perceives as being her daughter’s best interests . . .” (Decision, p. 8). If the Court had only utilized the overwhelming evidence which supported that statement and not elevate its desire to uphold its June 2nd decision and its appointment of Dr. McKay, the decision would clearly have been in appellant’s favor.
EMMA
What is missing are two significant factors which the trial Court blithely ignored. One is that there is no real advocate on Emma’s behalf at the trial. Nor is there any evidence of what Emma herself was like since Dr. McKay’s observations of the child with her father in March of 2009 in which she found Emma utterly “unresponsive” to her father, and in April of 2009 when she observed the mutually loving relationship between mother and daughter. Thus, all of the statements by the respondent that Emma’s maladaptive behavior has decreased in his custodial “care” are self-serving and uncorroborated except for his mother and sister whose testimony contradicts respondent’s testimony in many respects. After all, what is the actual reason that Emma uniformly becomes hysterical when she leaves her mother’s home; it has to do with the loss of the nurturing and secure environment that she has found only in that home.
Emma’s voice in this case has not been heard. There has not been a single reference in this record from June 2, 2009 through the conclusion of the trial on April 24, 2010 that the Law Guardian ever spoke with and/or visited the child. As re-appointed by Judge Klein, the Law Guardian understood that the Court wanted to make a finding and conclusion consistent with Dr. McKay and the June 2nd decision and she acted accordingly.
In the decision, Judge Klein indicated that it “would not be bound by “the desires of this very young child, even if they could be determined.” (Trial Decision, p. 7). Tragically, her wishes were never determined and Emma was never heard. We can easily ascertain Emma’s continuing preferences from this Record.
Secondly, the evidence established that the respondent never took primary and solitary custodial care of the child and that when Emma is with her at the Velella compound of houses, he is either not there and/or his mother or sister is in charge. Except for a brief trip to Florida, this record is silent as to anything that he has done with the child alone and not with other members of the Velella extended family. He ignored Dr. McKay’s recommendation that he become personally involved in his own and in community activities with Emma. This, said Dr. McKay is a significant way of establishing the bonding between the child and her father. That he did not do so is testament to his failure to achieve that bond with Emma although he claims otherwise. Surely, he should not require a forensic recommendation to tell him that he should spend quality alone time with his daughter. Rather, his inability to pick up and/or return the child from the mother’s home without the presence of her mother or sister (which they both testified to) tells us that the respondent is incapable of acting alone in his child’s best interests.
EMMA AND HER PARENTS
Finally, the trial Court and counsel ignore the fact that the parties never married and never resided together with the child. Thus, the dynamics of an intact family unit were never experienced by Emma. Having been removed by her father while enjoying the nurturing and security of her mother’s home, it should seem obvious that Emma would suffer from extreme separation anxiety. That the respondent exhibited no sensitivity concerning this, as found by Dr. Sinowitz, underscores his minimal knowledge of his own daughter. It is small wonder that Dr. McKay, his advocate, noted Emma’s lack of responsiveness to him during their solitary meeting of March 9, 2009. Suffice it to say, this significant dynamic was ignored by Dr. McKay and the trial Court.
In the initial report, respondent told Dr. McKay that “I would support any decision she made, but I wanted nothing to do with the mother”, (Exhibit “A”, p. 13).
As referenced above, the respondent’s subsequent conduct was entirely consistent with that attitude; thus, during Emma’s short lifetime, he had as little to do with the appellant as possible, ignoring the appellant’s entreaties regarding the child’s developmental issues, medical problems, emotional behavior, etc. and did nothing to assert himself as her father of a young child rather as a temporary caretaker. Even after the stipulation of August 2007 until the trial, the communication with respondent was “ineffective because of no response on his part.” (10/16/09, 74-75, See Exhibit “19”).
The issue then is not whether or not Emma is a “normal” child, as framed by respondent, or whether appellant “subjected” Emma to excessive medical scrutiny, but whether the respective parties acted appropriately in addressing the issues of a young child; some of these issues being usual and some unusual. In the absence of any meaningful response from Emma’s father, what should a caring and committed mother do? First, she must question her daughter about what happened when she was with “Daddy” (because he refused to tell her). Justice Klein showed no understanding as to why this was necessary when he wrote appellant’s “actions in checking the child upon her return from visitation with the father evince an interest in finding evidence of abuse and that her purpose was to determine if something ‘untoward’ had occurred.” (Decision, p. 8, 9).
We would ask this Court to consider the alternatives available to appellant when her three (3) or four (4) year old returns from her father’s custody with rashes, marks, scratches, unwashed, food on her face, etc, etc., This conduct was not to establish abuse but merely to find out what happened. If finding neglect or abuse were her purpose, she would have filed petitions to that effect in the Family Court long ago (Decision, p. 8). The second thing appellant did, in the absence of any response from Emma’s father, was to seek professional guidance. The initial therapist was Dr. McNamee, the Chief of Psychology at Lehman College, who was referred by Dr. Treacy but was forced to withdraw shortly afterwards when respondent filed a complaint against her. The appellant then retained Ms. Repole in 2008 for Emma’s play therapy. (8/4/09, 43). Ms. Repole, with a post-graduate degree in child and adolescent therapy, created an appropriate and specialized setting for Emma and worked with Emma regarding the negative statements and feelings that Emma said and felt about respondent, (8/4/09, 48). That respondent characterized this process as a “waste” underscores his ignorance of the potential benefits of this process.
The only other involvement(s) with medical professionals, other than the pediatrician(s), occurred as a consequence of recommendations made by Dr. Sinowitz relating to Emma’s seizures and self-stimulation. The respondent ignored these issues, although admitting the problem(s), and the trial Court criticized appellant, without specifics, totally impressing its own value judgments and ignoring how appellant alone addressed Emma’s everyday life. Because of respondent’s determination to remain isolated from Emma’s mother, the appellant was finally compelled to file the petition, dated April 15, 2008 in which she requested that an order be issued inter alia, that respondent be directed to communicate with her by emails and voice messages; and authorizing her to consult with him on medical issues (Exhibit “3”).
Continued:
POINTS IN AFFIRMATION by Alexander Potruch in opposition to full custody going to Vincent Velella.
Tricia and Potruch filed an appeal to the Appellate Division, Second Department, and Velella filed his Brief in Opposition
On June 10, 2011 the Second Department denied the Cross Motion of Tricia, and then on June 21, 2011 affirmed the decision of Family Court to give full custody to Vincent Velella.
Attorney Potruch's request for Leave To Appeal
Theresa Daniele opposed any appeal of the Second Department's decision
In May 2011 NYS Governor Andrew Cuomo appointed Theresa B. Marangas, partner, Wilson Elser Moskowitz Edelman & Dicker, to the Court screening committee of the Third Department.
According to Tricia's lawyer Alexander Potruch, the reply papers on the request for leave to appeal the ruling on custody of Emma were rejected at the Second Department because he got them into the Court late on the 12th of August, 2011.
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