Julio Salas v. Monaris Rivera (2010)

MEMORANDUM OF DECISION

A review of the record reveals that the plaintiff initiated a custody and visitation application on August 19, 2008 alleging that he is the father and the defendant is the mother of two minor children, twins, Jayson Rivera-Badillo and Jayona Rivera-Badillo allegedly born July 11, 2008.   He seeks joint custody of the children and certain visitation rights.

The parties appeared before the court on February 25, March 3, March 30 and July 28, 2010.   The plaintiff was represented by counsel and the defendant represented herself.   The court heard from numerous witnesses including the parties, family members, acquaintances and the defendant's treating gynecologist.

The plaintiff claims that the defendant was pregnant with his twins, gave birth to them by way of a caesarean section and that she has secreted them away from him.   The defendant claims that she suffered a miscarriage and that she has never given birth to any children.

The evidence is conflicted and contradictory to say the very least.   The following facts are uncontroverted which the court finds proven by a fair preponderance of the evidence:

1.  The parties became romantically involved in 2006 and the defendant became pregnant with the plaintiff's children in the fall of 2007.

2. The parties lived together, off and on from approximately 2006 until 2008.

3. In the spring of 2008, numerous people observed the defendant to be pregnant, a fact which she readily admits.

4. The defendant's due date was in July 2008.

5. In May 2008, the plaintiff's mother hosted a large and extravagant baby shower.   Both parties attended.   It is unclear from the photographs whether or not defendant was pregnant at that time.

6. In July 2008, the defendant posted photographs on her My Space website depicting twin babies.

7. In September 2008, the defendant was treated at Stamford Hospital for asthma and reported under “social history” that she has two children.

8. The defendant's treating gynecologist performed an examination, at the request of the plaintiff and with the permission of the defendant on March 1, 2010.   He testified unequivocally that there is no cesarean section scar, that there are no stretch marks consistent with a full term or near term pregnancy and that “there is no evidence that she delivered vaginally or carried a baby to term.”   He further testified that he examined her in September 2009 for a complaint of irregular bleeding and again found “no clinical evidence of childbirth.”   He concluded that while it is theoretically possible that she delivered babies with no clinical evidence of that fact, it is extremely unlikely and that it is more probable than not that she did not deliver a baby.

There are many facts which are heatedly and decidedly in dispute:

1.  The plaintiff claims that the defendant had a cesarean section.   The medical evidence neutralizes that claim.

2. The plaintiff and his witnesses claim that they have seen photographs on the Internet and on cell phones depicting the twin babies.   The defendant claims that this was a ruse designed to keep the plaintiff, who was abusive to her, at bay.

3. The plaintiff and his witnesses claim that they have seen the defendant pushing a double baby stroller in New London.   The defendant disputes this claim.

4. Several witnesses testified that the defendant admitted to having children.

5. The defendant posted pictures on the Internet of “her twins” but claims that those photographs were part of her ruse to pacify the plaintiff.

6. The plaintiff and his witnesses claim that the defendant looked happy at the baby shower.   The defendant and her witnesses dispute that claim.

7. There is no medical evidence that the children at issue were ever born.   There is no credible circumstantial evidence that the children at issue were ever born.

8. There is no medical evidence that the defendant ever delivered a child;  the uncontroverted medical evidence supports the contrary conclusion.

9. There is no credible evidence that the children at issue are now alive.

It is axiomatic that the court cannot grant custody or visitation rights unless the children exist.   In fact, the court cannot have subject matter jurisdiction over such a dispute unless the children exist.

The plaintiff has had two years to investigate and locate these alleged children.   He has had medical authorizations executed by the defendant, extensive discovery and even the benefit of having had the defendant examined by a gynecologist.   He has had the opportunity to conduct a hearing over a four-day period.   Nonetheless, the plaintiff has been unable to sustain his burden of proof to demonstrate that the children were born alive or presently exist.   It is the plaintiff's burden to prove, by a fair preponderance of the evidence, each element of his case.   In fact, in closing argument, plaintiff's counsel, who capably presented the best case she could, given the facts, conceded that it is “a 50/50 possibility.”   While there will always be questions as to what really happened in this matter, the court cannot conclude that the plaintiff has sustained his burden of proof.

For the foregoing reasons, the case is dismissed.

Shluger, J.

Shluger, Kenneth L., J.