Petition for Interlocutory Relief for Temporary Child Custody

COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS.                                                    PROBATE & FAMILY COURT                                                                              DOCKET NO. 01-000 --------------------------------------------------------- James Linnehan                                                   Petitioner  v.  Robyn L. (Gerry) Sylvia  Bristol County Probate & Family Court                                                   Respondents  ----------------------------------------------------------

PETITION FOR INTERLOCUTORY RELIEF This petition is comprised of the following sections: (1) Statement of the Case and Facts, (2) Jurisdiction of the Single Justice, and the four sections mandated by the Standing Order Concerning Petitions to the Single Justice pursuant to G.L. c. 231, sec. 118 (first paragraph): (3) Request for Interlocutory Review, (4) Statement of the Issues, (5) Statement of the Specific Relief Requested, (6) a Copy of the Order of the Trial Court. (7) an addendum.  A certificate of service is at the end of this pleading. 1. STATEMENT OF THE CASE AND FACTS The underlying action is a false allegation case. It began in Maine around September 1986, when James Linnehan brought a court action to enforce visitation, which had stopped. THE CHILD, born to Robyn Gerry ["Robyn"] on 9 February 1985, was then around 19 months old. In January 1987, while a paternity and custody action was pending in Maine, the mother, without permission of the Maine court, fled with the child from Maine to Massachusetts. Ten months later, around September 1987, Linnehan found them in New Bedford. By May 1988, legal custody was awarded by Juvenile Court in a Care & Protection case to New Bedford Child and Family Services, and physical custody had been awarded to the mother, Robyn Gerry. On 24 June 1988, Linnehan brought suit to establish paternity and an award of custody to him. Linnehan's suit was entered into the docket of Bristol County Probate & Family Court as No. 88W0113-P1. Robyn was married in 1989, first separated from her husband, Michael Sylvia ["Michael"], in 1991, and having accused also her husband of sexual abuse, began divorcing him in 1994.1 Seven long years later, the stormy divorce process ended with a judgment nisi entering on 6 November 2001 in the Bristol County Probate & Family Court, the same court in which the Gerry-Sylvia/Linnehan action is being heard. During the past 7 years, Robyn received child support from Sylvia as well as Linnehan.  1 When Michael married Robyn Gerry Sylvia [a/k/a Gerry-Sylvia], he was a widower with three children at the time. Robyn was then pregnant for a second time out of wedlock. It appears that DSS did not substantiate that Michael sexually abused his three children (Robyn's stepchildren) and the child she and Michael had together, ....... Fortunately, his three children were old enough and the family ties strong enough that he was able to overcome some very troubled times when Robyn turned all the children against him.  But for two supervised visits with the child when he was around four years of age, Linnehan last saw his son when THE CHILD was two years of age. At his present age of almost 17,  THE CHILD likely has no independent memory of his James Linnehan. Given that the child's attorney alleges literally that THE CHILD thinks Linnehan is "scum," one can conclude only that mother is the poisonous root of the child's belief. Linnehan has had six attorneys prior to his current one. None met with success at getting Linnehan visitation with his son. Given that the court has caused to be done no follow-up of Robyn Gerry-Sylvia or of the child (now in high school and deprived of a father throughout his short life by his mother with the court's acquiescence), there is valid reason for an evidentiary hearing. Such a hearing would be in the best interests of the child.  Specifically, THE CHILD............................................ He has had no proper male role model. It does not appear that .............................................. His father, Linnehan, has wanted and continues to want to provide THE CHILD with the values, encouragement, and goals THE CHILD's mother has failed to instill.  THE CHILD should not be further deprived of a relationship with his dad, a man who has continued to love him lo these many years.  2. JURISDICTION OF THE SINGLE JUSTICE The denial of temporary child custody appealed from is interlocutory and appealable under G.L. 231, sec. 118. Callahan v. Superior Court, 410 Mass. 1001 (1991). Given that the child will be 17 years old within two months, an appeal to a panel is impractical.  3. REQUEST FOR INTERLOCUTORY REVIEW The review currently sought is from the order denying Linnehan an evidentiary hearing on his motion for temporary custody. In the lower court's Findings of Fact and order, nary a statute or rule or legal authority was cited. The iteration of facts therein do not support the action of the lower court, whose decision is based neither in logic nor in law. 4. STATEMENT OF THE ISSUE I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY FAILING TO ALLOW THE FATHER TO PRESENT EVIDENCE AND INQUIRE ON THE ISSUE OF THE CUSTODY OF THE SON. Words and law are barely necessary in the need to provide Linnehan with the due process which has evaded him since 1988. Fourteenth Amendment of the United States Constitution. Tenth Amendment of the Constitution of the Commonwealth of Massachusetts.  "`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).  "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).  "`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.'" In re Ian, 46 Mass.App.Ct. 615, 616 (1999) (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). The interest of parents in their relationship with their children has been deemed fundamental, and is constitutionally protected.  Department of Public Welfare v. J.K.B., 379 Mass. 1, 3 (1979), citing Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Before the State "deprive(s) a legitimate (Sic) parent of all that parenthood implies," the requirements of due process must be met.  Department. of Public Welfare, 379 Mass. at 3, quoting Armstrong v. Manzo, 380 U.S. 545, 550 (1965).  The extent of procedural due process which must be afforded in any situation varies with the nature of the private and governmental interests at stake. Goldberg v. Kelly, 397 U.S. 254, 262-263 (1970)], but basic to due process is the right to be heard "at a meaningful time and In a meaningful manner" (emphasis added). Armstrong v. Manzo, supra, 380 U.S. at 552.  Department of Public Welfare, 379 Mass. at 4. There is no more meaningful time than now and there is no more meaningful manner than an immediate evidentiary hearing, for relief after final judgment is unlikely. A trial date will not be assigned until after a pretrial conference, which appears to be mandatory in Bristol County Probate & Family Court, and there is a 6- to 8-month wait after the pretrial conference. The child will be almost 18 by then and will likely take off for parts unknown, given the anger he appears to have for his mother. 5. STATEMENT OF THE SPECIFIC RELIEF REQUESTED Plaintiff James Linnehan does not seek extraordinary relief. His ultimate goal is to have his first evidentiary hearing on the issue of legal and physical custody of his son, THE CHILD, something he has not been allowed in over the 13 years working within our court system. Were he to be granted temporary child custody, the child-support order would be moot. At the very least, Linnehan seeks visitation. His son is being badly neglected, and is acting out in such ways that have required police intervention. 6. A COPY OF THE ORDER OF THE TRIAL COURT The order by Probate & Family Court Justice Elizabth O'Neill LaStaiti is included in the addendum to this petition. Attached also are the pleadings below: 1. Docket Sheets of Probate & Family Court case 2. The copy of the order of the trial court  3. Linnehan's Answer, Defenses, and Counterclaims  4.  Motion for Temporary Custody and Request for Evidentiary Hearing

Respectfully submitted,.    PLAINTIFF JAMES LINNEHAN,     By his attorney,     Barbara C. Johnson 20 December 2001               Barbara C. Johnson, Esq.                                             6 Appletree Lane                                             Andover, MA 01810-4102                                             978-474-0833     CERTIFICATE OF SERVICE I, Barbara C. Johnson, hereby certify that on this day served true and accurate copies of the above pleading and addendum and the supporting memorandum by first-class mail on _______ New Bedford, MA 02740-6021; Attorney General, Government Bureau, 200 Portland Street, Boston, MA 02114; and The Honorable Elizabeth O. LaStaiti, Bristol Probate & Family Court, 11 Court Street, Taunton, MA 02780.  21 December 2001                  _________________________________                                              Barbara C. Johnson, Esq.

 

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