Meredith Carroll: Snowmass custody case gets cloudier

Meredith C. Carroll
Muck Off

With all due respect to the legal system, not every ruling by a judge is necessarily just. In the notorious 1857 Dred Scott case, for instance, U.S. Supreme Court Chief Justice Roger B. Taney acted as if abolishing slavery would be the righteous move, yet voted to keep it intact anyway. Feelings aren’t facts, and despite the law and the sacred integrity of the Constitution, there still remain instances in which emotions can and should outweigh statistics, documents, records, numbers and figures.

In the ongoing custody dispute between Dennis Burns of Snowmass Village and his ex-wife, Ana Alianelli, over their 6- and 8-year-old daughters, Judge Denise Lynch in Garfield County ruled last month that Burns will temporarily continue on as the primary custodial parent. Lynch expressed concern that Alianelli, who has not secured a permanent place to live or a job in Snowmass, “remains a flight risk and may re-abduct the children and return to Argentina.”

In 2010, Burns pleaded no contest following an incident in which he was arrested for physically assaulting Alianelli. She said he also caused her to suffer severe emotional and psychological abuse, which is why she panicked at the thought of the future if she and the girls stayed in close proximity to him.

So Alianelli took the girls to Buenos Aires, where they lived for nearly five years before returning to Colorado in the spring. She said of disregarding Lynch’s instructions for the girls to remain in the United States after the divorce: “I was very desperate. I felt the only way to protect the girls (from Burns) was to be with my family and community in Argentina.”

While Lynch may view Alianelli as having run from her orders, what she actually ran from was a difficult relationship. And despite the judge’s trepidations about Alianelli’s credibility, the girls aren’t going anywhere now; Alianelli is not in possession of their passports and also has offered to surrender her own passport to the court as well to secure a surety bond as a testament to her reliability.

The court may also be suspecting the wrong person of untrustworthiness. In last month’s court proceedings, Lynch used Burns’ sworn testimony to invalidate an agreement endorsed by both parents in Buenos Aires stipulating that, upon their return to Snowmass, Burns would provide Alianelli and the girls with a place to live, health insurance and a $2,000 monthly stipend. But under oath, Burns told Lynch he only signed the contract under duress because, among other reasons, his Argentine attorney said not doing so “would substantially impair his ability to take the children back to Colorado.”

Except a motion filed last week in Garfield County District Court reveals Burns’ Argentine counsel has “disavowed” his client’s testimony, saying in a sworn affidavit that “no such advice” was given. Furthermore, the agreement between Burns and Alianelli was executed April 10 on “terms (Burns) himself offered, with full knowledge that (on April 6) the Argentine court had already ordered the safe transfer of the minors from (Alianelli) to (Burns) and that steps to effect that transfer (on April 13) had already been taken.”

It’s entirely possible that Burns consented to the arrangement out of a genuine concern for his daughters’ welfare after a psychologist who examined them in Argentina warned that seizing them from Alianelli’s care entirely would be mentally injurious. If that’s the case, though, it’s puzzling why Burns would then seek to void measures intended to minimize damage to them.

And if Alianelli was waiting for Burns to uphold the pact they made, that could explain why she hasn’t found a permanent place to live or a job in Snowmass. Moreover, if Burns’ alleged untruths contributed to Lynch’s decision on custody because of Alianelli’s seeming impermanence, hopefully the current plan will be re-examined.

While the intensely sad and murky situation will continue playing out in the courtroom over the next several months, what is abundantly clearer is there is a third side to the story, which the girls themselves tell. Lynch ordered another psychological evaluation of them when they came back to Snowmass and, according to statements made in court last month by Alianelli’s attorney, the report revealed the “abrupt separation from their mother is having detrimental effects” on their “psychological and emotional well being.”

Part of their trauma also is a result of being detached from their extended family in Argentina. The psychologist said the girls expressed “sadness and loneliness without the role of supportive family members in their lives.” One girl told the evaluator of dreams “about escaping through the window of her room in the house where they have been living since her arrival in the U.S.”

When asked what she would change about her current situation, she said “Everything. I would go with my mom and return to Argentina; there’s no one here, not even my dad’s family is here, so why do they want me here? My dad doesn’t love me. If Dad really loved us, he’d let us go back to Argentina.”

Of course, the girls aren’t mature enough to fully grasp a situation exponentially more complicated, including the potential precedence it could set for future international custody disputes. However, given that neither Burns nor Alianelli appear to have careers intrinsically tying them to Snowmass or family living nearby (Burns didn’t respond to repeated requests for comment about his employment status and proximity to extended family), perhaps Lynch will agree to allow the girls to return to the life they cherish with Alianelli in Buenos Aires, while still seeing Burns in Colorado during summers and holidays. Or maybe the girls can just be given the opportunity to start over in Snowmass — with a minimum of equal time with their mom.

On paper, it’s a mess. Yet in real life, two darling girls need the storm clouds to yield to the sunshine once again so they can go back to being the carefree kids they were prior to April 13.

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