Petition for Interlocutory Relief There is very little hope of success for this petition.   It is an interlocutory appeal of an issue about which a judge has discretion.  The object of writing and sharing this petition on the Internet is to SHED LIGHT on a situation about which, I strongly believe, the judge ABUSED her discretion. COMMONWEALTH OF MASSACHUSETTS  APPEALS COURT  COUNTY, SS.                                                                      C.A. NO. ________________     WIFE X. SMITH, Plaintiff/Appellee  v.  HUSBAND SMITH, Defendant/Appellant ___________________________________________________________ ______________________________________________________ This petition arises out of an order entered into the docket of a COUNTY Probate & Family Court action, WIFE C. SMITH v. HUSBAND SMITH, No. 99D-9999-DV1, and is brought by HUSBAND "MANLY" SMITH. It is comprised of the four sections mandated by the Standing Order Concerning Petitions to the Single Justice pursuant to G.L. c. 231, sec. 118 (first paragraph). A certificate of service is at the end of the pleading. 1. REQUEST FOR INTERLOCUTORY REVIEW Your petitioner, HUSBAND SMITH, requests an interlocutory review of the order issued by Justice YOUNGJUDGE on 19 March 2001 and entered on 19 April 2001 into the docket. He seeks an order commanding that the couple's 6-year-old twin boys be returned from State of ZZZZ to Massachusetts forthwith and to restore the custody of them to him, the father, who was their primary caregiver for the first five years of their life. The removal to the State of ZZZZ was unlawful, given the lack of due process afforded the father, i.e., there was no evidentiary hearing.   2. STATEMENT OF THE ISSUES 1. It was an abuse of discretion (a) to require the father, HUSBAND SMITH, to see his twin sons only during supervised visitation and (b) NOT to remove the children forthwith from under the roof of the maternal grandfather, where SMITH submitted a tape and transcript of his twin sons, both of whom disclosed seeing their mother having sexual intercourse with a boyfriend, and one of whom disclosed being sodomized by his maternal grandfather. FACTS On 10 March 2001, SMITH had presented a tape on which (a) both twins disclosed that they had witnessed their mother having sexual intercourse with BOYFRIEND, and (b) one twin describing how he was sodomized by his maternal grandfather. There were several nonviable reasons which fed into Judge YOUNGJUDGE's Temporary Order. The First Reason. There were two breaks in the tape. SMITH contends that the breaks were at innocuous places: one after one of the children (TWIN1) said, "Don't tape record this."1  The other, after a question the children had had of their father and TWIN1 said, "Okay." (See transcript in Addendum to the petition.)  1 The judge acknowledged that one of the breaks occurred here, to wit, after the child said, "Don't tape record. . . ." [See note 1 on the second page of the Temporary Order.] Judge YOUNGJUDGE did not think the breaks were innocuous. She characterized them as "inexplicable breaks." In actual fact, they were not: the recorder was a voice-activated recorder, which is sensitive to voice level, voice tone, distance from speaker, the speed of the voice, and even the way it is held.  The Second Reason. Judge YOUNGJUDGE allowed a woman, GIRLFRIEND, who had been a friend of SMITH's to address the court and accuse him of coaching the children and telling them to lie. The judge did not allow SMITH to cross-examine this woman on the stand. Had he been allowed to do so, he would have been able to prove that the woman had not witnessed the taping, had not spoken to the children, and had her own agenda.2 2Because of a multitude of letters and phone messages from her, we know that she wanted a deeper and long-lasting relationship with HUSBAND SMITH than that into which he was prepared to enter. The Third Reason. Not unsurprisingly, SMITH's wife, WIFE, took advantage of the opportunity to support GIRLFRIEND's claim of coaching and lying. And, again, SMITH was not allowed to cross-examine WIFE. Given that a month or so later, on April 24, 2001, when the parties were in Judge OLDERJUDGE's court, WIFE testified that after she had a conference call with her divorce lawyer and the scorned and revengeful GIRLFRIEND, she asked the children about the taping, and that it was only then that the children allegedly said they were coached and told to lie. It is doubtful that six-year-olds know what coaching is. Clearly, had Judge YOUNGJUDGE allowed WIFE to be cross-examined by SMITH's counsel before issuing her Temporary Order, not only the timing and the nature of WIFE's questioning and the children's so-called declarations would have been revealed but also the likelihood of WIFE's taking the opportunity to use GIRLFRIEND's malicious and vengeful remarks to be used against SMITH. The Fourth Reason. SMITH contends that given that there was no factual basis for the Temporary Order, Judge YOUNGJUDGE brought her own gender bias to bear. For instance,   (a) although WIFE admitted at the hearing before YOUNGJUDGE that she did, indeed, have a new boyfriend named "BOYFRIEND,"3 the court ignored WIFE's admission about dating a man named "BOYFRIEND" (according to the children, the name of the man with whom mom was making love) and incorrectly wrote in the Temporary Order, "Both parties deny knowing who BOYFRIEND is,"4 and 3 In front of the court, her divorce counsel instructed her not to provide his surname. (b) Judge YOUNGJUDGE concluded that SMITH, a male, had used the tape for "self-serving purposes" and that he simply wanted to "malign Mother" [Temporary Order, p. 2],  (c) Judge YOUNGJUDGE discounted WIFE's testimony that her sister WIFE'S SISTER alleged that she was sexually abused as a youngster and that the abuser could have been "one of a hundred people."    4 The tape of the hearing, which was untimely received only this past week, is now being transcribed. WIFE's lawyer previously had represented to the court (OLDERJUDGE, J.) that "BOYFRIEND" was the children's former gymnastics coach. And as she did with GIRLFRIEND, Judge YOUNGJUDGE did not allow SMITH to cross-examine his wife. It was a clear abuse of discretion not to allow SMITH to cross-examine his accusers and rebut any materials adverse to his position. In this case, the material was an interim report filed that day by the guardian ad litem.  When SMITH's counsel objected to the court giving any weight to the G.A.L.'s report, Judge YOUNGJUDGE ordered WIFE's counsel to phone the G.A.L. and request that she be in court on the next scheduled court date, which was April 2. But the court still went along and followed the G.A.L.'s recommendation. It was, thus, in the absence of constitutional due process that Judge YOUNGJUDGE on March 9th suspended SMITH's visitation with his sons until a supervisor for visitation could be found, but allowed the boys to continue living under the same roof with the grandfather whom the twin TWIN1 said had sodomized him. The case then became one of "Killing the Messenger." On April 2d and 3d, when the G.A.L. made herself available for two short stints on the stand in Judge OLDERJUDGE's court, 5 she was impeached, but the judge would not undo Judge YOUNGJUDGE's temporary order,6 although the court had the authority to do so.  5 SMITH's counsel had been trying for two months to depose the G.A.L. but could not get the court (OLDERJUDGE, J.) to act on SMITH's motion to enforce the subpoenas. That deposition and the production of the G.A.L.'s file have still not been produced. SMITH's counsel was given only 10 minutes to peruse the file in court. The discovery master has recommended to the court (OLDERJUDGE, J.) to order the G.A.L. to produce the file. The court has still failed to act. 6 That hearing has not yet ended, for SMITH is not finished cross-examining Door, who was allowed to re-open her motion, and has not yet been allowed to put in his defense to the motion. Judge OLDERJUDGE stated she cannot hear the case until August 17th, which is too long for the children to be under the same roof of their maternal grandfather.   A judge should . . . hesitate to undo the work of another judge. But until final judgment or decree there is no lack of power, and occasionally the power may properly be exer- cised." Peterson v. Hopson, 306 Mass. 597, 601 (1940) (cites omitted); Barbosa v. Hopper Feeds, Inc., 404 Mass. 6210, 622 (1989). Cataldo Ambulance Service, Inc. v. City of Chelsea, 43 Mass.App.Ct. 26, 27 n.4 (1997). Further, given that Judge OLDERJUDGE stated at the close of the movant wife's prong of the hearing -- before she allowed the wife to re-open her case -- that she had not heard any evidence of a reason to terminate visitation,\7/ Judge OLDERJUDGE even more than the resulting injustice to SMITH, it increased the risk of harm to the children when she declined to undo the work of Judge YOUNGJUDGE. Hallaq v. Leaf, 2000 WL 744556 *2 (Mass.Sup. 2000), No. 95-5473-C (Fremont-SMITH, J.) ("[T]his judge hopes that any other judge of this Court [ ] would exercise his or her power to revise a [ ] judgment [ ] were [ ] my interlocutory decision [ ] result in injustice to a party").  7 Although the tape was ordered on 21 March 2001, within two days of the hearing, only part of the April 3d tape received this past week. (It is being transcribed.) The second part of the tape was missing and it has, we believe, been found and sent to Springfield for duplication.  The hearing on that emergency motion was continued until 17 August 2001. As to the maternal grandfather. Two weeks after Judge YOUNGJUDGE left the twin boys at risk in the home of their maternal grandfather, WIFE's father, GRANDFATHER took the stand to testify that he did not have incest with WIFE'S SISTER (one-year older than WIFE), that their relationship had been strained for about ten years, and that the WIFE'S SISTER's accusation was as a result of F.M.S., to wit, a product of a false memory.8 8 Significantly, WIFE'S SISTER did not arrive at the courthouse as did the rest of the family. Upon cross-examination, GRANDFATHER admitted that he has always loved children and that since his early retirement in 1986, he has made a vocation of volunteering at church day-care centers, frequenting recreation centers and playgrounds, and, recently, assisting a kindergarten teacher in the public-school at which TWIN1 (the child who complained of the sodomy) attends kindergarten.\9/  9 Remarkably, on 26 April 2001, Judge OLDERJUDGE wrote a surprise order in which she concluded that GRANDFATHER "routinely volunteers his time in children's activities within the community" and "appears to be a pillar of the community in the XXXXX, State of ZZZZ area where the plaintiff and the minor children reside.  That GRANDFATHER is a graduate of Harvard Business School does not, SMITH contends, preclude the likelihood that the man is a predator. In sum, to reach that conclusion, Judge OLDERJUDGE had to find that WIFE'S SISTER and TWIN1 were lying. SMITH contends that Judge SMITH made this finding so as to support her unlawful order allowing the children to be removed to State of ZZZZ [G.L. c. 208, sec. 30] without either having SMITH's consent or holding an evidentiary hearing before allowing the mother to remove the children from their father and Massachusetts to live with WIFE's radically dysfunctional biological family: her father married three times, her mother married twice. WIFE, herself, testified that while her biomother was minding her sister's child broke her arm and her leg in two separate "accidents" . . . and that once when SMITH was ill and WIFE was minding the twins, the stove fell on top of TWIN1. (Although WIFE was sitting in the kitchen with the children when the stove fell on top of TWIN1, SMITH himself, upon hearing the crash, got from his sickbed to the kitchen and removed the stove from atop TWIN1.) And SMITH still has not had more than 35 or 40 minutes to testify in his defense or on his children's behalf.   Conclusion Judge YOUNGJUDGE's failure even to err on the side of caution and immediately pull the children out from under GRANDFATHER's roof evidences her prejudgment and gender bias. Had his wife been male, SMITH contends, Judge YOUNGJUDGE would have immediately returned the children to him. Not having done so, the judge's gender bias is clear.   3. STATEMENT OF THE SPECIFIC RELIEF REQUESTED HUSBAND SMITH not only seeks the reversal of the order requiring him have supervised visitation until the evidentiary hearing is complete, be also seeks the temporary custody of the children to ensure the safety and well-being of the children.  Given (a) that Judge YOUNGJUDGE did not allow SMITH to cross- examine any of the so-called witnesses before or after she wrote her temporary order,  (b) that there was no reasonable basis either to terminate visitation or to impose supervised visitation, (c) that Judge OLDERJUDGE, who began the evidentiary hearing on the motion on April 2 and 3, 2001, stated at the close of the movant wife's case that she had not heard any evidence of a reason to terminate visitation, and  (d) that Judge OLDERJUDGE's court has no time available until 17 August 2001 for HUSBAND SMITH to put on his defense or affirmative testimony, immediate relief is mandatory given the dangerous environment to which the children were removed without due process of law: No removal hearing was afforded SMITH prior to the mother being allowed by the motion court to remove the children to State of ZZZZ.10 10HUSBAND SMITH's prior counsel neither objected to the unlawful order violation nor appealed the order. The G.A.L. has since admitted she did no investigation whatsoever of the environment to which the children were to be taken.   4. A COPY OF THE ORDER OF THE TRIAL COURT The order which issued on 19 March 2001 and was entered on 19 April 2001 into the docket of COUNTY Probate & Family Court is attached to the petition as part of the addendum. Respectfully submitted, DEFENDANT SMITH, By his attorney, 16 May 2001                               Barbara C. Johnson                                                   Barbara C. Johnson, Esq.                                                   6 Appletree Lane                                                   Andover, MA 01810-4102                                                   508-474-0833     CERTIFICATE OF SERVICE ADDENDUM 1. Order of 19 March 2001, entered on 19 April 2001. 2. Transcript of 3/10/01 tape, entered into evidence as Exhibit 1 by Judge YOUNGJUDGE on 19 March 2001. The hearing, at which testimony was taken, began on 2 April 2001 and continued on 3 April 2001. The defense by the father has not yet been heard. TRANSCRIPT OF 3/10/01 TAPE HUSBAND SMITH's nickname is "MANLY." The following set of facts are the background against which the taping of the children was done on 11 March 2001. On Monday, 26 February 2001, at 3 P.M. SMITH met with the guardian ad litem in her office. SMITH was reading to the G.A.L. his list of things the boys had told him. SMITH had also just told her that the boys said, "Mommy loves BOYFRIEND," when, according to SMITH, the G.A.L. interrupted him to ask whether the children told him that they had seen their mother having intercourse with her boyfriend BOYFRIEND. She repeated this question several times. According to the G.A.L., she asked him "How do they (the boys) know that she has had sex with BOYFRIEND?" [G.A.L.'s Updated Report, dated and filed on 19 March 2001.] Not having said that the boys told him that, he began wondering why the G.A.L. asked him whether they were witness to their mother having sex with a man. So, on Sunday afternoon, March 11th, when the children were visiting with him in Pelham, he tape-recorded a conversation with the boys. The transcript is included in the Addendum to this petition.  MANLY: I need to ask you guys some questions on the tape recorder. And the first question is: Have you seen mommy make love to BOYFRIEND? TWIN1: Yes. TWIN2: Mom was on top making sex. MANLY: Uhuh, Is that true, TWIN1? Did you see that too? TWIN1: Ye-e-es [hesitantly]. MANLY: What did you see, TWIN1? TWIN1: What did I see? I saw -- umm -- BOYFRIEND-Pop's penis going into my mom's 'gina hole. . . . Keep that a secret! MANLY: Why should we keep that a secret? Who told you that? TWIN1: My mommy. MANLY: Ohh, this is not so good. [Pause.] How long after I get kicked out of the condo did BOYFRIEND-Pop move in? TWIN2: I'm bored. TWIN1: One day. [Pause.] Keep that a secret. [Excitedly.] MANLY: Is that true, TWIN2? Did BOYFRIEND-Pop . . . How long after I got kicked out did BOYFRIEND-Pop move in? TWIN1: Whispering to TWIN2 "one day." TWIN2: . . . One da-a-ay (very hesitantly). MANLY: [Sighed.] How long has it been since I spanked you? Have I spanked you since I've been kicked out? TWIN1: No. TWIN2: No. [Overlapping TWIN1]. MANLY: Was it a long time before I got kicked out since I spanked you? BOYS: Ye-e-e-s. MANLY: So do you think I got kicked out because I spanked you? TWIN1: Yes. TWIN2: No. MANLY: Why do you think I got kicked out . . . because I spanked you? -- Who told you that, TWIN1? Did somebody tell you that I got kicked out because I spanked you? TWIN1: You know, you should have told us-- Don't tape record this. [A break here.] MANLY: Let me ask you this question. Has anybody ever hurt you? TWIN1: Yes. MANLY: Who hurt you? TWIN1: Ahhh . . . Pop. MANLY: Is this BOYFRIEND-Pop or Pop from Pop and STEP-GRANDMOTHER? TWIN1: Pop from Pop and STEP-GRANDMOTHER. MANLY: And now, what did Pop do to you to hurt you? TWIN1: Um . . . Jumped up and down on me and put his penis in my poo-poo hole. MANLY: Say that again. TWIN1: He jumped up and down on me and putted his penis in my poo-poo hole. My mother said to keep it a secret. MANLY: Are you sure he did that to you? TWIN1: Yes. MANLY: Uhhhh. [Sigh.] [Pause.] Okay. TWIN1: Question? TWIN2: Next question. MANLY: I don't think I have any more questions. Does TWIN2 want to say another? TWIN2: I have a question. MANLY: Um-huh. TWIN1? TWIN1: Umm. Why did you tape record the police? MANLY: How do you know I tape recorded the police? TWIN1: 'ecause my mom told me the story of that thing. MANLY: I tape recorded the police because I have policemen that are friends. And they told me that I should tape-record the incident so that in case anybody accuses me of being aggressive or fighting or screaming or yell- ing, I can prove that it didn't happen if I tape-record that. That's why I tape-recorded it. To prove what I'm saying is the truth.  TWIN1: Okay. [A break here.] MANLY: Do you have a question, too, TWIN2? TWIN2: Oh, I have two questions. MANLY: Okay, what's the first one? TWIN2: Why did you break in in the first place? MANLY: Why did I break into the condo in the first time? I didn't break into the condo the first time. I hired a locksmith. I needed to get into the condo to get the spare keys to the condo that were hanging inside of the utility closet. Because mommy and her lawyer would not give me the keys to the condo. And it was no longer against the rules for me to go into the condo because the order to keep me out of the condo had expired. So I got the locksmith to let me into the condo and then I got the spare keys, but the spare keys wouldn't fit the locks in the door anymore because the locks had been changed. So then it was cheaper for me to have a new lock or put new locks in the door than it was to have keys made for the locks that were in the door. CHILD: Inaudible. MANLY: So I got new locks. I had the locksmith put in a new deadbolt and then I went to Home Depot and bought a new handset because the locksmith wanted to charge me $40 for the handset and I could buy a new handset at Home Depot for less than $10. And I needed to get spare keys made for the deadbolt, too. So that's what I did at Home Depot. Now the second time, . . . What's your second question? TWIN2: Umm. MANLY: The second time. TWIN1: The second time . . . TWIN2: Inaudible. TWIN1: The second time. Why-- Why did you -- uh -- break in the second time with a DRILL? MANLY: Uh, who told you I drilled? TWIN1: Mommy. TWIN2: Mommy [inaudible]. MANLY: I never told you any of this. TWIN1: And the story . . . TWIN2: [Inaudible.] MANLY: Well, I had all my tools with me to start working on the condo again. To put the trim in the back bedroom. And it was 5:30 in the morning. And I had the car parked in the street and I needed to hurry up and get . . . into the condo so I could bring my stuff in and it takes a long time to get the locksmith to come. And my key fit into the lock. It just wouldn't turn. So I thought the lock was just bad. I didn't realize mommy had put a new lock on the door. TWIN1: Oh? The fancy lock? MANLY: No, it wasn't a fancy lock, it was just identical to the lock I had put into the door. So I was just going to drill it out and get another one, because it costs $100 to call a locksmith. And I could buy another lock for $20 and put it in. But . . . mommy moved Uncle Todd in. That I didn't know about. So I had a sneaky. TWIN2: Ga, a sneaky feeling. MANLY: Yeah. Okay, is that all the questions? TWIN2: Ummm, ummm. Is there a fancy lock on the condo door now? TWIN1: I put-- [Inaudible.] MANLY: Yes, I learned there is fancy lock on the condo door now. Mommy testified to it. TWIN1: That was good. TWIN2: Inaudible. MANLY: Okay. We all done? TWIN2: Yup.