In re Marriage of Moschetta: Behind the Scenes

What goes on behind the scenes of a custody battle? What happens after the disposition? When I read In re Marriage of Moschetta I knew I wanted to find out more. I contacted the child, Marissa Moschetta, who happened to be an old childhood friend and she agreed to give me some of the information I was seeking.

Robert Moschetta and his wife, at the time, Cynthia Moschetta, desired to have a child, however, she was infertile. They found a surrogate mother, Elvira Jordan, who agreed to be inseminated with Robert’s sperm and carry the child to term for them. Robert and Cynthia were having complications in their marriage during the pregnancy and decided to divorce. They tried to work things out right after Marissa was born, but eventually split for good and a three way custody battle commenced.

Cynthia quickly realized she did not have a case since she was not the genetic or gestational mother, therefore she supported Elvira. Joint custody was ordered by the judge even though the court appointed experts recommended sole legal and physical custody to Robert as they determined Elvira was seemingly unfit. Evidence presented in court revealed that Elvira committed welfare fraud and housing fraud. The court appointed experts also conducted various psychological tests of all parties; they determined that she had issues with “antisocial disorder… neglect, emotional abuse, sons in the drug business… among other things.” This was affecting Marissa’s well-being.

According to Marissa, the judge went against all the evidence of this from the behavioral psychologists and held personal biases against men and low income women which caused the ruling for joint custody. It took a whole year after this to file an appeal because the judge would not sign the final order. Interestingly enough, this judge had another case after the Moschetta case where she granted custody to the mother, again against the recommendation of the experts she assigned to the case, over the father, despite abuse and weeks later the mother killed those children. She was also the judge who granted OJ Simpson custody of his children, again against the recommendation of the court appointed experts.

Robert Moschetta decided to appeal the case immediately after the decision was read. Shortly thereafter, the oldest son of Elvira, Ricky, was involved in a gang which allegedly caused the murder of a cartel member’s daughter. He was arrested and went back to prison. There was fear of retaliation that might result in Marissa’s death. When Robert found out about this, he and Marissa went to visit Marissa’s attorney. He immediately filed for an emergency hearing. For a two week period, Elvira was not allowed to have Marissa in her neighborhood. Three years and fifty-nine days after the decision of joint custody, Robert was finally granted a new trial by the appellate court. They determined the judge abused her power and the decision making process and she did not look out for the best interests of Marissa. The original judge recused herself from the case. Another set of experts were assigned to review the situation and home life of Marissa. This time the court appointed experts had more evidence that revealed that being with her father was in Marissa’s best interests. During this time he also remarried. According to the experts, Marissa had established a strong bond with his wife. The court granted sole legal and physical custody of Marissa to Robert with visitation rights for Elvira every other weekend.

After Marissa finished Kindergarten, Robert was able to relocate to Texas. Elvira visited Marissa once in Texas, but Marissa would have to fly back periodically to visit her. Before starting third grade, Marissa was going to have to visit Elvira for a month in California. Marissa stated she did not want to go, after Robert explained the situation to her about the court requirement, Marissa stated she was not going and they could not make her. Robert contacted Marissa’s attorney and went to California to present the case to the judge. His original order was upheld. This was causing anxiety attacks in Marissa. She was determined to not go to California. Robert was able to bring the case to a Texas judge who granted an emergency order to protect Marissa; he also took control of the case and moved it to Texas. Another trial was set and another court appointed expert was assigned. He granted sole legal and physical custody of Marissa to Robert. As a way to protect Marissa, any visit with Elvira had to be under the supervision of a court assigned social worker. This required Elvira to come to Texas to visit, however, Elvira never visited.

Marissa has had no contact with Elvira since, but has received communication from alleged cousins and aunts. Marissa is now in graduate school working on her Masters in Social Work.

This article is based on my interview with Marissa Moschetta on October 7, 2012.

Allison Arterberry

About Allison Arterberry

Allison Arterberry is a third year student at the University of Houston Law Center. She graduated from Texas A&M University in 2011 with a B.A. in Political Science and Spanish. She has spent parts of her last two summers interning at the Equal Employment Opportunity Commission. Currently, she is a Senior Articles Editor for the Houston Journal of International Law, the Secretary for the Labor & Employment Law Society as well as a member of the Career Development Student Advisory Board and the Association of Women in Law. Additionally, last year she was the Secretary for Aggie Law Society. Allison is most interested in child victim’s rights in the criminal system.

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