Tuesday, February 26, 2013

Rationale for Judgement 2012



COMMONWEALTH OF MASSACHUSETTS
Plymouth/Brockton, SS                                                                  PROBATE COURT
                                                                                          DOCKET NO.: 06D0566-DV1
**************************
LAURA BONETZKY-JOSEPH, Plaintiff
Vs
MARLON JOSEPH, Defendant
**************************
Rationale for Judgment

The Court find that it must consider all of the relevant facts as testified to, not only by the DCF caseworker, but by the testimony of the witnesses. The Court acknowledged to the parties, Your Honor  would take judicial notice and review all the pleadings.  The Court finds that the Mother, Laura Bonetzky-Joseph, unwillfully signed the custody agreement in October 2008 under duress and necessity due to threats and intimidations she received. She promptly filed for multiple motions to overturn that decision but her gateway to be heard was denied temporarily was removed.

There has never been a parenting plan designed for success. There are no allocations for birthdays, holidays, school events, family emergencies, or family vacations.

The Court acknowledges the numerous times Father has filed to terminate visitation and all contact between Mother and her children and despite Court orders and denials, Father makes up his own orders to abide by – failing to recognize the authority of this Honorable Court if is does not agree with him.

The Court acknowledges the numerous times Father has filed for mental health exam of Mother with his motions being denied. Mother has never been found to be unfit or a danger to her children.

Father’s proposed parenting plans were designed to get Mother to surrender to his control which even when she unwillingly agreed, Father found every excuse to not abide them. He manipulated the system to drag out his position at the expense of the children in question. 

The Court finds that based on the testimony and pleadings, the Father has systematically and unilaterally under minded any positive relationship between the children and their Mother. Father willingly and admittedly disregarded the orders of this court and will continue to do so. It essentially allows Father to determine and control all of Mother’s time with the children and controls over her personal life for which he legally has no interest.

The Court finds that Father voluntarily and without notice to Mother, his change in medical care for the children, schools, family vacations or trips, and/or changes in their therapy despite the agreement he, himself, coerced Mother to sign in October 2008 with the threat if she did not sign it, she would never see her children again. It was Mother who was active in the care for their daughter when she was diagnosed with an internal birth defect which will require close monitoring until she reaches the approximate age of twenty.  Father took no interest in her medical care and has no experience on what to do in an emergency in case something happens. Mother is trained and certified in CPR and First Aid and is a Registered Medical Assistant. Father’s actions are a willful contempt and in violation of the Court’s order and the spirit and intent of parental duties and fitness. 

The Court finds that Father voluntarily and willfully failed to provide Mother with half of the 2006 and 2007 tax returns as he signed and agreed in the Divorce decree as well as the added child support for child care expenses in the summer of 2007. Mother has NEVER seen a single penny from those returns or child care expenses. This is a willful contempt and in violation of the Court’s order and the spirit and intent of parental duties and fitness.
The Court finds that Father voluntarily and willfully ignored this Court’s warnings of failing to abide by Court Ordered visitation in June of 2010 and still defies any order by this Court. Father unilaterally curtailed and/or terminated any contact between the children and Mother and the Maternal side of their family. The Court acknowledges Mother’s attempts to buy her children a cell phone to better build an individual relationship with her children without Father’s constant interference. This is a willful contempt and in violation of the Court’s order and the spirit and intent of parental duties and fitness  

The Court takes judicial notice that there is an order appointing the Grandfather as the Court appointed supervisor. Despite the order, the Grandfather testified that he had repeated problems regarding visitation issues, lack of cooperation from the Father, and refusal to discuss with him directly any and all concerns regarding visitation as Father did with the previous supervisors. For this Court to give sole legal and physical custody of the children would for all intents and purposes, add insult to injury. Father did everything in his power to strip mother from any part of her children’s life.  Father made no serious effort to keep mother involved in the children’s lives and neglected their medical care. He is morally and legally required to do so with the respect to the orders of the Court and he did not.  Simply put, he kicked her when she was down, and continues to kick her. Although, she keeps getting back up for her children as that is all that matters to her.

The children have repeatedly expressed the need and want to be with their Mother via DCF, Mark Kaeys (previous supervisor), Court records, and the children’s previous therapist. Mother is requesting full legal and physical custody of the children. When the children were in her custody, Father was not denied access to his children like Father has done. Mother always kept father involved despite his refusal. Past actions are best indicators of future actions. Mother is seeking a detailed and clear parenting plan that Father can not use, abuse and manipulate to suit his personal agenda. This is just and fair way to allow these parents to be positive parents. It was in the best interest in the children when Mother has full legal and physical custody as it is now.

The Court is highly concerned that the Father feels superior to that of this Court and that he feels it is in the best interest of the children to brainwash them and have them believe their mother does not exist and that their Step-mother is their real mother they need to acknowledge with whom he thrusted her upon the children prior to their parent’s divorce. His actions overall have alientated the children from their Mother and destroyed her ability to be a positive role model during their formative years. The evidence of perjury, abuse, alienation, stalking, harassment, and fraud is substantial and uncontroverted. The Mother at the same time recognizes the long term affects of abuse and recognizes her children have become a statistic. However, Mother has been and continues to be determined to learn everything she can to help her children heal from the traumas they have suffered and be their pillar of strength and endurance. That includes reeducating herself and use efforts to remain and participate in the children’s lives.

The fact that Father is the Regional Vice President of a financial services firm providing investments, mortgages, and insurance plans for families and businesses with 62 employees, with money to purchase a home, driving a newer model Infiniti wants the Court to believe he is should qualify for Masshealth. With that many employees and with that kind of assets, why should the tax payer give him free insurance? This speaks volumes to the Court in Father’s skilled abilities to manipulate the system to get what he wants at all costs. It is unconscionable.

CONCLUSIONS OF LAW
Even in difficult circumstances, the best interests of the child is usually served by the children maintaining a relationship with both parents; the Court’s obligation is to craft creative orders to accommodate visitation with the non-custodial parent. McCarthy v McCarthy, 21 MassApp. Ct. 924, 925 (1985).

In Yannas, the childnren’s lives derived a benefit from their mother’s improved circumstances. See Yannas v Frondistou-Yannas, 395 Mass. 704, 712, 481 N.E. 2d 1153, 1158 (1985)

As seen in Custody of Vaughn, 422 Mass 590 (1996) and in  Care and Protection of Lilith, 61 Mass App. Ct 132 (2004) “witnessing domestic violence is itself a "grievous" harm. Id. at 595
Also seen in Care and Protection of Lilith; 61 Mass App.Ct. 132; (2004) -  The application of Custody of Vaughn to care and protection proceedings. In Custody of Vaughn, 422 Mass. at 595, the court declared that "physical force within the family is both intolerable and too readily tolerated, and  a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." The court emphasized that the "very frequency of domestic violence in disputes about child custody may have the effect of inuring courts to it." Id. at 599. The court, therefore, reversed a decision by a Probate Court judge to award custody to a "father who had committed acts of violence against the mother," id. at 596, because the judge had "failed to make detailed and comprehensive findings of fact on the issues of domestic violence and its effect upon the child as well as upon the father's parenting ability." Id. at 599, quoting from R.H. v. B.F., 39 Mass. App. Ct. 29 , 40 (1995). Domestic violence, the court declared, "is an issue too fundamental and frequently recurring to be dealt with only by implication." Custody of Vaughn, supra.

In the Opinion of the Justices to the Senate; 427 Mass. 1201, p. 1293, March 11, 1998., the interest is one of the "liberty" interests protected by art. 10 of the Massachusetts Declaration of Rights, and the due process clause of the Fourteenth Amendment to the United States Constitution.  "the overriding principle in determining [the rights of a parent to custody] must be the best interest of the child." C.C. v. A.B., 406 Mass. 679 , 691 (1990). There is a growing national awareness that children who witness or experience domestic violence suffer deep and profound harms. See, e.g., Custody of Vaughn, 422 Mass. 590 , 599 (1996); Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and Visitation Decisions in New York State, 3 Cornell J.L. & Pub. Pol'y 221, 222-234 (1994); Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 Vand. L. Rev. 1041, 1055-1058 (1991).

We turn directly to the challenged orders, examining them under the familiar rule that we will not reverse the orders of a probate judge in the areas of custody and support unless the judge's findings are clearly erroneous. Mass.R.Dom.Rel.P. 52(a) (1975) King v. King, 373 Mass. 37 , 40 (1977). Prindle v. Fisk, 2 Mass. App. Ct. 843 , 844 (1974). Clarke v. Clarke, 3 Mass. App. Ct. 736 , 737 (1975). Daigle v. Daigle, 5 Mass. App. Ct. 847 (1977).


[1] Commonwealth v. Garuti, 23 Mass. App. Ct. 561, 564, 504 N.E.2d 357, 359 (1987)
[1] Andrea Maalouf v Elie Saliba; 54 Mass App. Ct 547; 2001

As seen in Mitchell v. Mitchell, 62 Mass. App. Ct. 769 , 772-773 (2005), preserving fundamental human right to be protected from devastating impact of domestic violence is Common-wealth's public policy, as reflected in many statutes; Marjorie Sher v. Robert Desmond 70 Mass App. Ct. 270 (2007).

[1]In the Case of SCOTT C. PEDERSEN vs. JULIE KLARE; DOCKET No. 08-P-1327 (2009), the parent who interfered with visitation was found in contempt and sanctioned $5,000 plus an additional $200 per day sanction for each day not in compliance with court order plus legal fees.

[1] Hernandes v. Branciforte, 55 Mass. App. Ct 212 (202)
As far as Father’s visitation interference, see Custody of Brandon, MA Supreme Court 407 (1990), where the court ruled preventing the offending parent from "interfering with his personal liberty in any way."  Parental unfitness to provide for the welfare and best interests of a child under G. L. c. 210, § 3, must be proven by clear and convincing evidence.[1] “Subsidiary findings must be supported by a preponderance of the evidence, and those findings will not be disturbed unless clearly erroneous. Ibid. A finding is "clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977).

The “real advantage” test, or less strict standard, is based on the “realization that after a divorce a child’s subsequent relationship with both parents can never be the same as before the divorce … [and] that the child’s quality of life and style of life are provided by the custodial parent.” Yannas v Frondistou-Yannas, 395 Mass. 704, 710, 481 N.E. 2d 1153, 1157-58 (1985) (quoting Cooper v Cooper, 99 N.J. 42, 53 (1984)). And although it is clear in divorce proceedings that “the best interest of the children always remain the paramount concern, ‘[b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child’s best interest requires that the interests of the custodial parent be taken into account Id. (quoting Cooper v Cooper, 99 N.J. 42, 54 (1984)).

A Judge’s findings in a custody proceeding must be specific and detailed so as to demonstrate that close attention has been given to the evidence. Adoption of Warren, 44 Mass. App. Ct. 620, 625, (1998).
She testified that she was threatened by her previous attorney, Attorney Alessi who told her he would get a Guardian appointed against her if I did not sign it. She also testified that she fired her attorney the day before the trial when she learned her attorney had no intention of going to trial and told her he wasn’t going to “allow” her to go to trial.[2]  Commonwealth v. Garuti, 23 Mass. App. Ct. 561, 564, 504 N.E.2d 357, 359 (1987)

Father stated Mother attempted suicide and was unresponsive. He NEVER called 911  Commonwealth v Scott Vaughn; 43 Mass App. Ct. 818; 1997 – As seen with this case law, if true, then the defendant acted recklessly because his conduct "created a high degree of likelihood that substantial harm would result to the victim." with wanton and reckless conduct.

Finally Mother contends that the Judge Menno erred in granting permanent custody to the father under G. L. c. 119, § 26.[3] 

The rights of parties to custody are equal in the absence of misconduct and the welfasre and happiness of the children are determining criteria. MGL Ch. 208 Sec 28; 31 (1989) and Supp. 2001; Bouchard v Bouchard, 12 Mass. App. Ct. 899, 900 (1981).

The Judge saw and heard the witnesses and had the opportunity to evaluate their credibility. She was not obliged to believe contradictory evidence. Kaplan v Bessette, supra n. 13, at 234.

Judge’s assessment of the weight of evidence and the credibility of the witnesses is entitled to deference.  Custody of Eleanor, 414 Mass 795, 799 (1993).

Parents have no absolute or immutable right to associate with their children and their parental rights must yield to the best interests of the child. Donnelly v Donnelly, 4 Mass. App. Ct. 162, 164 (1976).

“The judge who has heard the testimony and seen the witnesses fact to face has a better opportunity for determining the credibility of their conflictin statement thatn can possibly arise from reading the record.” Custody of Eleanor, supra n.15, at 800 citing Spiegel v Beacon Participations, Inc, 297 Mass. 298, 407 (1937).

Rule 52A Notice
The Court reserves the right to make such additional findings of facts and rulings of law specifically as it relates to legal costs and expert fees pursuant to Mass, R. Dom. Rel. P. 52(a) in the event of a Notice of Appeal by either party.

The Court has entered a supplemental judgment consistent with these findings of facts and conclusions of law.

                                                                        Laura Bonetzky-Joseph
                                                                        By Her Attorney,
Dated:                                                             _________________________________________
                                                                        R. Christian Hauffler, Jr., BBO# 225860
                                                                        HAUFFLER ASSOCIATES
                                                                        22 Washington Street
                                                                        Norwell, MA 02061
                                                                        781-837-3800


[1] Case Law - Adoption of Rico; Docket 07-P-1883 (2008). Also see Adoption of Don, 435 Mass. 158, 164-165 (2001)
[2] See Commonwealth v. Garuti, 23 Mass. App. Ct. 561, 564, 504 N.E.2d 357, 359 (1987)
[3] Care and Protection of Lilith; 61 Mass App.Ct. 132; 2004 - Application of Custody of Vaughn to care and protection proceedings. In Custody of Vaughn, 422 Mass. at 595, the court declared that "physical force within the family is both intolerable and too readily tolerated, and . . . a child who has been either the victim or the spectator of such abuse suffers a distinctly grievous kind of harm." The court emphasized that the "very frequency of domestic violence in disputes about child custody may have the effect of inuring courts to it." Id. at 599. The court, therefore, reversed a decision by a Probate Court judge to award custody to a "father who had committed acts of violence against the mother," id. at 596, because the judge had "failed to make detailed and comprehensive findings of fact on the issues of domestic violence and its effect upon the child as well as upon the father's parenting ability." Id. at 599, quoting from R.H. v. B.F., 39 Mass. App. Ct. 29 , 40 (1995). Domestic violence, the court declared, "is an issue too fundamental and frequently recurring to be dealt with only by implication." Custody of Vaughn, supra.

No comments:

Post a Comment