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)
[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