#22, Drano Series
Jim's Story: The Complaint Which Explains Where Robyn Gerry-Sylvia, the Mother, Was and
the Special Things She Told to Special People
Amended Complaint for Modification Pursuant to Mass.R.Civ.P. 15(a)
COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. PROBATE & FAMILY COURT
C.A. NO. 88W0113-P1
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James Linnehan
Plaintiff
v.Robyn L. (Gerry) Sylvia
Defendant
------------------------------------------------------AMENDED COMPLAINT FOR MODIFICATION
PURSUANT TO MASS.R.CIV.P. 15(a)
INTRODUCTION This is an action in which the Plaintiff, James Linnehan, is seeking to re-establish the father-son relationship between himself and his son, Brendan, and be awarded custody of Ssssss. As ground for the action, there is a substantial change in circumstances as required by G.L. c. 209C, sec. 20, and the continuing deprivation of parental rights under the state and federal constitutions.
PARTIES
1. The plaintiff is James Linnehan ["Linnehan"], who resides at 19 Vermont Street, Salisbury, Essex County, Massachusetts, 01952; was a resident of both Maine and Massachusetts during all relevant times of this action; and is the biological father of Ssssss Linnehan.
2. The defendant is Robyn L. (Gerry) Sylvia ["Robyn"], who resides at 42 Chestnut Street, Fairhaven, Bristol County, Massachusetts, was a resident of both Maine and Massachusetts during all relevant times of this action, and is the biological mother of Ssssss Linnehan.
FACTS
3. But for two supervised visits with the child when he was around five years of age, Linnehan last saw his son, Ssssss, when the boy was three years of age.
4. Ssssss is now 15 years of age.
5. Ssssss likely has no independent memory of James Linnehan.
6. On 25 January 1989 and 13 January 1992, orders issued from this court -- the latter a stipulation for Eli Newberger to conduct a sex-abuse evaluation.
7. On 25 January 1989, the order issued following the filing of a report by Christopher Salt, a court-appointed evaluator.1
1 Salt drew no negative conclusion from Robyn having left Maine with Ssssss while a court order allowing Linnehan visitation was operative [CS, depo at 13-17]. Instead, he held to his belief that Robyn had "justification" to disobey the Maine court order [CS, depo at 15, lines 7 and 4] by fleeing and hiding with Ssssss in Massachusetts [CS depo at 16]. He also concluded that Ssssss feared men, and since there was no male around except Linnehan, Linnehan had to be the perpetrator [CS 7/1/88 report at 25; CS depo at 28]. Salt further insisted that even though "there was no diagnosis of sexual abuse, the possibility is not to be eliminated. His fear and anxiety about his father had been confirmed[;] he had undergone a traumatic experience and now suffered from post-traumatic stress" [CS depo at 34].8. There was no reliable data either in Salt's report or in the case as a whole to support his conclusion that the child had been sexually abused; the only data were the self-serving notes of the mother, Robyn [CS depo at 34-35].NOTE: All documents cited herein this Complaint are hereto attached.
9. The 13 January 1992 stipulation and another order issued, again based on facts rooted in Robyn's perjuries to Salt.
10. While Linnehan knew between that the Salt reports were bogus, Linnehan did not have until now corroborative evidence of his position.
11. Linnehan's position (stated here for the convenience of the court) was and still is that Robyn was not the stable, sincere, honest, excellent caregiving mother the evaluators were saying she was.
12. Robyn's accusations of continual child sexual abuse by Linnehan were false and motivated by revenge for his unwillingness to marry her.
13. Robyn's ultimate goal was to win sole physical and legal custody of the child Ssssss and permanently deprive Linnehan of a relationship with his son. [See paragraph 38 below.] 2
2 Within a few years, Robyn would also falsely accuse her then-husband, Michael Sylvia, of child sexual abuse.
ROBYN'S LIVING ARRANGEMENTS WHEN THE FALSE ACCUSATIONS AROSE AND WHETHER SHE WAS MARRIED OR NOT14. Robyn has described her living arrangements during 1988 -- the year she raised the false allegations of sexual abuse -- very differently depending on whom she was telling and on her ulterior motives: e.g., to Christopher Salt, Eli Newberger, Jack McCarthy, Probate & Family Court, her own divorce lawyer (Moira Tierney), and Michael Sylvia, her husband.
15. To Christopher Salt, Robyn claimed to have "no live-in boyfriend" [CS 7/1/88 report at 25], causing Salt to write, with the exception of Mr. Fitzgerald who babysat Ssssss, "there appears to be no significant males in [Ssssss's] life other than Mr. Linnehan." Id. 3
3 Salt's rendition is a gross misstatement of fact: Robyn and Ssssss shared the apartment for about three months with Joseph Fitzgerald, who was the tenant of record, and Salt knew it [CS 7/1/88 report at 17]. Robyn and the divorced Fitzgerald "dated a few times and have remained good friends." Id.16. The purpose of telling Christopher Salt that she had no live-in boyfriend was to show that no other male could have inflicted trauma on Ssssss except Linnehan.17. To Eli Newberger, the Children Hospital pediatrician whom Attorney Deborah Wolf chose to conduct an evaluation, Robyn asserted that she "married Michael Sylvia in August 1988," which was within weeks of Salt's report [EN 9/8/92 report at 4, para. 2].
18. Eli Newberger corroborated that she told that lie, by writing that he had even asked James Linnehan "about his views about Robyn's present husband," and that Linnehan responded "that it was good for Ssssss to `have a man around'" [EN 9/8/92 report at 7, para. 7].
19. The purpose of telling Eli Newberger that she was married in 1988 -- although she was not married then [Robyn's divorce complaint] -- was both to show that she had a stable home life with Michael Sylvia and to hide the fact that she and Sylvia had already been living apart and that she had accused him of abusing the children. 4
4 The DSS social worker [was] Catherine Thomas.20. Robyn also did not inform Newberger that her marriage began failing at the outset, that the marital war was ongoing, and that she had separated from Michael Sylvia. 55 And Eli Newberger unprofessionally, irresponsibly, and negligently, never inquired of Robyn about her recent or then-current living conditions. He had predetermined that Linnehan had sexually abused the child, and thus gave Robyn room to lie both by omission and commission.
21. By Robyn not revealing the truth of her living arrangements and the de facto dissolution of her marriage to Michael Sylvia, and by Newberger not looking for alternative hypotheses for Ssssss's alleged behavior -- according to Robyn -- Newberger concluded that Linnehan's visitation with his son must not be resumed lest it further traumatize Ssssss.66 Eli Newberger wrote on page 8 of his so-called evaluation that Robyn "noted that Ssssss's drawings, for example, have recently once again become full of negative, dark images and monsters, in contrast to the happier depictions in the interval prior to the recent court initiative. The turning point, [Robyn] indicated, was when Ssssss was informed by his former therapist, Mr. Reuben Ferreira, that Ssssss's visitations with his father would be reinstated." (Compare these facts to those in paragraph 39.)
22. To Jack McCarthy, another court-appointed therapist, who rubber-stamped Newberger's deficient evaluation and predetermined conclusions, Robyn said nothing of her separation and stormy marriage, but claimed that Ssssss felt distrustful and betrayed from the past and therefore could not continue therapy with McCarthy [JM 3/28/94 report].23. Linnehan contends that it was Robyn who was fearful. If she brought Ssssss for therapy, her failed marriage and her wanderlust would likely have been exposed by the child Ssssss.
24. The purpose of Robyn not telling McCarthy that her marriage had failed was to convince McCarthy that only Linnehan could have been responsible for Ssssss feeling betrayed.
25. To this Probate & Family Court in the Gerry-Sylvia/Sylvia divorce case, Robyn claimed to have married Sylvia on "August 28, 1988 after living together for approximately two years" and that during that time she had assumed the responsibility of being sole caregiver of all the children, his, hers, and theirs [RG-S affidavit at 1].
26. The purpose of Robyn inventing that story for the divorce court was to convince this court that she should have custody of Justin (Michael Sylvia's child), and Ssssss, of whom Sylvia also wanted custody [Michael Sylvia affidavit at 3, para. 2].
27. Circumstantially, Robyn believed the discrepancy would never be seen by either Linnehan or any of the court-appointed caseworkers, psychologists, and the like.
28. To her own divorce lawyer, Moira Tierney, Robyn told that Ssssss was born out of a marital union between herself and James Linnehan: "I assumed complete responsibility for raising [Michael Sylvia's] children and my child from a previous marriage." [See paragraph 6 of Robyn's affidavit, filed on 11 July 1994 in the Gerry-Sylvia/Sylvia case in this court. Emphasis supplied.]
29. The purpose of Robyn telling Attorney Moira Tierney that Ssssss was a child from a previous marriage was to give an air of dignity and respectability, so that Tierney would zealously fight to defeat Michael Sylvia's claim for the custody of Justin (their child) and Ssssss (her child with Linnehan).
30. To Michael Sylvia, her husband, she told that Ssssss was born out of a marital union between herself and James Linnehan. [There appears to be no document in the divorce file in which Michael Sylvia corrects Robyn's assertion that Ssssss was her "child from a previous marriage.
31. To Jack McCarthy in later years, Robyn still remained silent about her disintegrating marriage to Michael Sylvia [McCarthy's letter of 3 August 1994 to Bruce Lider, Robyn's attorney in Linnehan's case].
ROBYN FREQUENT MOVING IS THE CAUSE OF Ssssss'S INSTABILITY
32. When Robyn left Maine with Ssssss, they were amongst the missing for 10 months until Robyn's parents revealed at their deposition where she and Ssssss were living.
33. Robyn moved with Ssssss three times while Linnehan was still allowed to see the child. Over time, Robyn and Ssssss have lived at:
(1) 198 Falmouth Road, Windham, Maine,34. On page 2 of Michael Sylvia's affidavit filed in the divorce case, he corroborates Linnehan's assertions: "My wife has moved with her son Ssssss at least seven or eight times." 7(2) 317 Emerson Street, New Bedford, where Robyn and Ssssss lived in a house with many college men,
(3) 343 Palmer Street, Fall River,
(4) on or around June 1988, when Linnehan filed his Complaint for Custody of the Child, at 78 Walden Street, New Bedford,
(5) at 12 Old Pierce Road, North Dartmouth, with Michael Sylvia and his and their children for perhaps two years and then moved out with Ssssss and Justin in 1991 [Michael Sylvia's affidavit, in which he complained about not knowing their whereabouts],
(6) in Maine for another while with the two younger children,
(7) in North Dartmouth, having returned, it is believed, sometime in 1994, and then
(8) at some as yet unidentified location,
(9) on 12 Plymouth Street, New Bedford, which Robyn purchased in 1995 and sold in 1997, and
(10) at 42 Chestnut Street, Fairhaven, purchased in 1997.
7 After their first separation beginning in 1991, the Sylvias have not lived together since 1994.35. Prior to being permanently deprived of his right to visit with his son, Linnehan was not given an opportunity to cross-examine Robyn OR interview Ssssss on the issues in his case.
OTHER FALSE REASONS FOR DENYING LINNEHAN HIS PARENTAL RIGHTS
36. Specifically the cause of complaints allegedly made by Ssssss and communicated to Salt by Robyn were (a) attributed to Linnehan and (b) believed by Salt because (c) Robyn lied: for example, (d) Robyn said that Ssssss at 6 years of age believed that the therapist (Ferreira) conspired with Linnehan so that Linnehan could take him to his house, and (e) Robyn "stressed" to Salt that "her husband Michael is very important to Ssssss and that Michael treats her son as if he were his own." [CS report at 2; also 15].
37. What is NOT in Salt's 5 January 1992 report is that Robyn and Michael Sylvia had been separated in 1991 because their marital relationship was stormy and the home environment damaging to all the children [Robyn's affidavit, paragraph 8, and Michael Sylvia's affidavit, unnumbered paragraphs on pages 1-3].8
8 The two affidavits were filed in Bristol County Probate & Family Court Docket No. 94D-1058-D1, Robyn Gerry-Sylvia v. Michael R. Sylvia. The divorce, filed on 28 June 1994, is still active and pending.
38. James Linnehan had heard by "rumor" of the separation and ultimately of the pending divorce, but did not find the divorce file in the probate court -- even with the help of no fewer than four clerks -- because Robyn had filed the divorce under the surname "Gerry-Sylvia" rather than "Sylvia," putting it under the Gs and not the Ss. And, of course, Linnehan never dreamt that the divorce had been active six years.39. Specifically Salt himself lied in that report of 5 January 1992 to Judge Harper: he wrote that Reuben Ferreira had acknowledged that Ssssss's visiting Linnehan "might well be detrimental." Linnehan now understands that Salt's statement was false because Salt never spoke to Ferreira.
NEWBERGER'S SO-CALLED SEXUAL ABUSE EVALUATION
40. Stunned by Salt's 1/5/92 report and badly advised by counsel, Linnehan entered into another stipulation on 1/13/92 giving Pediatrician Eli Newberger, about whom Linnehan knew nothing, the power to determine whether Linnehan would be allowed visitation.
41. Newberger wrote his preliminary findings and sent them in to Attorney Deborah Wolf, Ssssss's court-appointed attorney [see letter from Newberger to Wolf, dated 11 May 1992].
42. The Newberger report, issued on 8 September 1992, contributed significantly to Linnehan's not being able to visit with his son during the eight years since 1992 is the sexual evaluation report performed and signed during that year by Eli Newberger, M.D. ["Newberger"].
43. The Newberger report, containing the incendiary conclusory language fashionable at the top of the wave of sexual abuse hysteria, was deficient.
44. The Newberger report was relied upon by the court as well as by the quasi-judicial players, and, of course, by Robyn and her lawyers, Lider and Wolf,9 to deny Linnehan visitation with his son in 1992. [A letter from Newberger to Attorney Deborah Wolf, dated 11 May 1992. Note that no copy was sent to the counsel for the innocent but accused James Linnehan.]
9 Attorney Wolf clearly has not acted in Ssssss's best interests and should be replaced with another appointed counsel.45. Two years later, in 1994, the Newberger report was relied upon again by a court-appointed evaluator, Jack McCarthy, as the basis for again recommending that Linnehan not be allowed visitation with his son. [A letter from McCarthy to Attorneys Bruce Lider and Deborah Wolf, dated 3 August 1994. Note that no copy was sent to the counsel for the innocent but accused James Linnehan.]46. In the following year, also, in 1995, the Newberger report was relied upon still again by court-appointed evaluator Jack McCarthy as the basis for recommending that Linnehan not be allowed visitation with his son. [A "Memo to the File" by Atty. Fleury re a meeting with McCarthy, dated 26 January 1995.10
10 Clearly, neither Atty. Fleury nor McCarthy knew about Robyn and Michael's stormy divorce, and took no cognizance that Ssssss's problems -- if he did have them -- may very well have arisen from animosity permeating his home environment since the Sylvia's marriage . . . and NOT arising from any-thing Linnehan did.47. And then yet again, in 1998, the Newberger report was relied upon by a court-appointed evaluator Jack McCarthy when recommending that Linnehan not be allowed visitation with his son.48. The Newberger report was relied upon by a court-appointed evaluator, Jack McCarthy, to recommend that Linnehan's parents, enneagenarians, as recently as in 1999, not be given court permission to see their grandson. [A letter from McCarthy "To Whom It May Concern" dated 10 March 1999. No copy was sent to the counsel for the innocent but accused James Linnehan.]
49. The court (Judge Harper, having been assigned to sit as Probate & Family Court Justice) accepted McCarthy's recommendation at all times.
50. At all relevant times since 1992, there was an absence of any evidence of misconduct by James Linnehan.
51. At no time did James Linnehan have an opportunity to confront his accusers.
52. Newberger was the doctor who testified in the now infamous Fells Acre- Amirault-Lefave cases, the Day case (in which Newberger's sex-offender- profile testimony was rejected by this court), as well as in many other famous or infamous cases -- depending on one's perspective -- across this country.
53. Since those cases were tried, Newberger's and his team's style of interrogation and conclusions based on unstated data have fallen into disrepute.
54. At the end of 1999, Newberger published a book, The Men They Will Become, which he has been merchandising in part through a national book-signing tour.
55. Significantly, in that book, he seems to have departed from his former position, that is, that position which he held when he wrote the report in the Linnehan case, about how children should be questioned and the bases upon which conclusions are to be drawn.
56. Moreover, the defendant, Robyn, is still embroiled in the divorce from Michael Sylvia ["Michael"], who was a widower with two children at the time he married Robyn, then pregnant for a second time out of wedlock. (When Robyn Gerry birthed Ssssss, she was unwed. When she later married, she became Robyn Gerry Sylvia. She is now evidently using the surname Gerry-Sylvia.)
57. Newberger did not recognize and/or acknowledge Robyn's two out-of-wedlock pregnancies or her lifestyle during the critical times after the end of Linnehan and Robyn's relationship.
58. Robyn also accused Michael of sexually abusing his two children (her stepchildren) and the child she and Michael had together, Justin.
59. After Robyn and Michael's second separation, Ssssss -- James Linnehan's biological son -- went on one Saturday afternoon to visit Michael, with whom Ssssss had lived sporadically until 1994 but had come to know as his dad.
60. When Ssssss returned home, Robyn punished him.
61. Since Ssssss's visit to Michael, Robyn has since forbidden Ssssss to see Michael.
62. Robyn's pattern of conduct is now clear: Get pregnant, ask for marriage, if the relationship ends, feel scorned and get revenge.
63. Ssssss is now being denied not only only his biological dad but also his stepdad.11
64. Upon information and belief, Ssssss, who is now 15 and who had previously been alienated from him by his mother, is ready now to scrutinize how he became alienated from his bio dad.
11 Ssssss, too, has had a constitutionally protected interest in being with his biological father. U.S.C.A. Const.Amend. 14; M.G.L.A. Const. Pt. 1, Art. 10.65. Neither Newberger nor anyone else who performs thorough work has done a follow-up of Robyn Gerry-Sylvia or Ssssss Linnehan.
COUNT 1: DEPRIVATION OF PARENTAL RIGHTS12
12 The termination of the relationship between a parent and child is one of the most drastic and intrusive forms of state action. The preclusion of Linnehan's rights to visitation with his son since 1992 has been the equivalent of a parental termination proceeding without, however, any indicia of due process66. Plaintiff incorporates herein by reference the allegations of paragraphs 1 through 65 above with the same force and effect as if herein set forth..In 1996, the Supreme Court of the United States held that parental termination proceedings "are among the most severe forms of state action." M.L.B. v. S.L.J. __ U..S. ___, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996).
The object of the proceeding is "not simply to infringe upon [the parent's] interest . . . but to end it"; thus, a decision against the parent "work[s] a unique kind of deprivation." Lassiter Department of Social Services of Durham County, 452 U.S. [18], at 27, 101 S.Ct.[2153, 68 L.Ed.2d 640(1981)]. For that reason, "[a] parent's interest in the accuracy and justice of the decision . . . is . . . a commanding one." Ibid.
[A] termination decree is "final and irrevocable." Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (emphasis in original). "Few forms of state action are both so severe and so irreversible." Ibid. [In Santosky,] [a]s in Lassiter, the Court characterized the parent's interest as "commanding," indeed, "far more precious than any property right." 455 U.S. at 758-759, 102 S.Ct. at 1397.
Although both Lassiter and Santosky yielded divided opinions, the Court was unanimous in its view that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finiteclass of liberty interests protected by the Fourteenth Amendment." Santosky, 455 U.S. at 774, 102 S.Ct. at 1405 (Rehnquist, dissenting).
It was also the Court's unanimous view that "[few consequences of judicial action are so grave as the severance of natural family ties." Id. at 787, 102 S.Ct. at 1412. M.L.B., 117 S.Ct. at 564-65. The corollary of this observation and the holding of M.L.B. is that proceedings in which the state seeks to permanently deprive parents of all rights with respect to their child are subject to the closest constitutional scrutiny. "The extent to which procedural due process must be afforded [a litigant] . . . is influenced by the extent to which he may be condemned to suffer a grievous loss.'" Santosky, 455 U.S. at 758, quoting Goldberg v. Kelly, 397. U.S. 254, 262-63, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Joint Antifascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951).
A parental termination proceeding is "barely distinguishable from criminal condemnation in view of the magnitude and permanence of the loss" it entails. M.L.B., 117 S.Ct. at 565.
Such proceedings, therefore, must follow procedural guarantees of fairness and reliability which are not required in other kinds of civil proceedings, where only property interests are at stake. Santosky, supra. Proof of grounds for termination by a preponderance of the evidence is insufficient. In James Linnehan's case, not even was that standard reached.
67. At all relevant times herein, James Linnehan had a right under the due process clauses of the state and federal constitutions not to be deprived by the government of his constitutionally protected interest in being with his son. U.S.C.A. Const.Amend. 14; M.G.L.A. Const. Pt. 1, Art. 10.
68. James Linnehan has had a right under the state and federal constitutions to unsupervised visitation with and shared legal custody 13 of his minor child.
13 "`The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.'" Youmans v. Ramos, 429 Mass. 774, 777 n. 7 (1999), quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).69. James Linnehan has been denied visitation, supervised or unsupervised, with and shared legal custody of his minor child."The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by [the First] amendment and Amendments 5, 9, and 14." Griswold v. Connecticut, 381 U.S. 479 (l965).
70. Where there was no medical or psychiatric evidence or any clear and convincing evidence against James Linnehan, where he was not examined as to his suitability and/or fitness to visit with his son, and where he has been denied the right to visit his child since 1992 14 until the present based on the deficient reports of Eli Newberger and Jack McCarthy, he has been unlawfully denied his right under both the state and federal constitutions to visit with his son and share in his custody.15
14 The denial occurred despite earlier recommendations to the court by New Bedford Child and Family Services psychologists and case managers in favor of visitation between Linnehan and his son Ssssss.15Adoption of Gwendolyn, 29 Mass.App.Ct. 130, 132 (1990), citing Santosky, 455 US at 747-748 (clear and convincing evidence also applies to custody cases). In re Ian, 46 Mass.App.Ct. 615, 616 (1999), in which the court held that lower court's decision based on whether the visits were "therapeutically appropriate" was improper or "faulty legal standard": "`The judge's findings in a custody proceeding must be specific and detailed so as to demonstrate that close attention has been given the evidence and such findings must prove current parental unfitness clearly and convincingly.' . . . `The requisite proof must be strong and positive; it must be full, clear and decisive.'" Id., cites omitted.
"`The same standard of clear and convincing evidence controls the decision to terminate a parent's visitation rights as it does the decisions concerning parental unfitness in both care and protection and adoption proceedings.'" Id. at 620 (cite omitted).
COUNT 2: SUBSTANTIAL CHANGE OF CIRCUMSTANCES71. Plaintiff incorporates herein by reference the allegations of paragraphs 1 through 70 above with the same force and effect as if herein set forth.
72. Not only where there was no medical or psychiatric evidence or any clear and convincing evidence16 against James Linnehan, where he was not examined as to his suitability or fitness to visit with his son,17 where he has been denied the right to visit or share in the custody of his child since 1992 until the present based both on Eli Newberger's preliminary findings in his letter of May 1992 and his deficient report [Exhs. A-D], but also where the accusations by the defendant mother of the child now can be seen as a pattern of false allegations, where Robyn's conduct of alienating Ssssss from any father can be now seen as an intentional pattern of alienating the child from any father -- biological and stepfather -- there is adequate demonstration of a substantial change of circumstances mandating that the relationship between James Linnehan and his son Ssssss be restored and re-established.18
16 "Clear and convincing evidence" is evidence that is not self-contradictory or vague and tends to prove the fact for whose proof it is tendered. It would normally involve not only an unequivocal allegation as the central fact but be accompanied by accurate peripheral detail which would allow the court to see that the evidence is consistent with the external factual matrix, of which the nature is known independently of the witness. Santosky held that a "clear and convincing" proof standard is constitutionally required in parental termination proceedings. Santosky, 102 S.Ct. 1388, 455 U.S. 745, 769-770 (1982). "Few forms of state action are both so severe and irreversible." Id. "The Constitution of these United States is the supreme law of the land, any law that is repugnant to the constitution is null and void of law." Id.17 "The right of a parent not to be deprived of parental rights without a showing of fitness, abandonment or substantial neglect is so fundamental and basic as to rank among the rights contained in this Amendment (Ninth) and Utah's Constitution, Article 1, Sec. 1." Pfizer v. Lord, 456 F.2d 532, cert. denied 92 S.Ct. 2411 (1972). .
18 "No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625 (1923).
WHEREFORE THE PLAINTIFF PRAYS that this court:1. Make a determination under state and federal constitutions of James Linnehan's parental rights as to visitation and shared legal custody, if not shared legal and sole physical custody, of his son under the circumstances of this case in the past and in the future;A proposed order accompanies this Amended Complaint for Modification.2. Make a determination that James Linnehan's state and federal constitutional rights to visitation and to shared legal custody, if not shared legal and sole physical custody, of his son Ssssss were denied;
3. Make a determination that James Linnehan has a father's right to unsupervised visitation and to shared custody, if not shared legal and sole physical custody, of his son Ssssss under the statutes and state and federal constitutions;
4. Make a determination that James Linnehan has a right to unsupervised visitation and shared legal custody, if not shared legal and sole physical custody, of his son Ssssss at this time;
5. Make a determination that this court will not further deny James Linnehan of his right to visit with or to share legal custody, if not share legal and have sole physical custody, of his son based on the evaluation and report written by Eli Newberger or the reports of Jack McCarthy;
6. Make a determination that the psychological examination of the father indicates that he is suitable to visit with and to share legal custody, if not share legal and have sole physical custody, of his minor son without supervision;
7. Order that, absent any evidence of misconduct by James Linnehan from 1992 to present, James Linnehan has a statutory and constitutional right to unsupervised visits with and shared legal custody, if not shared legal and sole physical custody, of his son Ssssss without further psychological examination;
8. Order that James Linnehan have extensive and reasonable unsupervised visits with and shared legal custody, if not shared legal and sole physical custody, of his son Ssssss at this time;
9. Because of the long delay of the right of the father to visit with his son, order that the initial visit be accommodated by Dr. Reuben Ferreira (Ssssss's primary therapist);
10. Order that James Linnehan share legal custody, if not share legal and have sole physical custody, of his son Ssssss with the defendant at this time.
Respectfully submitted,
James Linnehan,
By his attorney,9 May 2000 Barbara C.Johnson
Barbara C. Johnson, Esq.
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF SERVICE