INTRODUCTION

This is an action in which the Plaintiff, John Doe, is to re-establish the father-son relationship between himself and his son, Bob. 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 John Doe ["Doe"], who resides at Main Street, Mainville, Big County, Massachusetts, 01234; was a resident of both Maine and Massachusetts during all relevant times of this action; and is the biological father of Bob Doe.

2. The defendant is Jane Smith-Jones ["Jane"], a resident of Bainbridge County, Massachusetts, was a resident of both Maine and Massachusetts during all relevant times of this action, and is the biological mother of Bob Doe.

FACTS

3. But for two supervised visits with the child when he was around four years of age, Doe last saw his son when Bob was two years of age.

4. Bob is now 15 years of age.

5. Bob likely has no independent memory of John Doe.

6. On 25 January 1989 and 13 January 1992, orders issued from this court -- the latter a stipulation for Dr-Against-Father-Visitation ["Doctor Dread"] to conduct a sex-abuse evaluation.

7. Contributing to Doe'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 Doctor Dread.

8. Doctor Dread wrote his preliminary findings and sent them in a letter dated 11 May 1992 to Attorney Ann Extremist, Bob's court-approved attorney [Exh. A].

9. The Doctor Dread report which issued soon thereafter was deficient.

10. The Doctor Dread report was relied upon to deny Doe visitation with his son in 1992.

11. Stunned and badly counseled, Doe entered into another stipulation on 24 February 1993 giving a therapist the power to determine whether Doe would be allowed visitation.

12. The Doctor Dread report was relied upon by a court-approved evaluator, Jack McRubberStamp [Exh. B], to recommend that Doe not be allowed visitation with his son in 1994.

13. The Doctor Dread report was relied upon by a court-approved evaluator, Jack McRubberStamp [Exh. C], to recommend that Doe not be allowed visitation with his son in 1995.

14. The Doctor Dread report was relied upon by a court-approved evaluator, Jack McRubberStamp, to recommend that Doe not be allowed visitation with his son in 1998.

15. The Doctor Dread report was relied upon by a court-approved evaluator, Jack McRubberStamp [Exh. D], to recommend that Doe's parents, enneagenarians, as recently as in 1999, not be given court permission to see their grandson.

16. The court (Judge HarpoMarx, having been assigned to sit as Probate & Family Court Justice) accepted McRubberStamp's recommendation at all times.

17. At all relevant times since 1992, there was an absence of any evidence of misconduct by John Doe.

18. At no time did John Doe have an opportunity to confront his accusers.

19. Doctor Dread was the doctor who testified in the now infamous Fells Acre/Amirault/Lefave cases, the Day case (in which Doctor Dread'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.

20. Since those cases were tried, Doctor Dread's and his team's style of interrogation and conclusions based on unstated data have fallen into disrepute.

21. At the end of 1999, Doctor Dread published a book, The Men They Will Become, which he has been merchandising in part through a national book-signing tour.

22. 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 Doe case, about how children should be questioned and the bases upon which conclusions are to be drawn.

23. Moreover, the defendant, Jane, is currently divorcing Matthew Jones ["Matthew"], who was a widower with three children at the time he married Jane, then pregnant for a second time out of wedlock. (When Jane Smith birthed Bob, she was unwed. When she later married, she became Jane Smith Jones.)

24. Dr-Against Father's-Visitation did not recognize and/or acknowledge Jane's two out-of-wedlock pregnancies or her lifestyle during the critical times after the end of the Doe-Smith relationship.

25. Jane also accused Matthew of sexually abusing his three children (her stepchildren) and the child, Billy, she and Matthew had together.

26. After Jane and Matthew Jones separated, Bob -- John Doe's biological son -- went on one Saturday afternoon to visit Matthew, with whom Bob had grown up and had come to know as his dad.

27. When Bob returned home, Jane punished him.

28. Since Bob's visit to Matthew, Jane has since forbidden Bob to see Matthew.

29. Jane's pattern of conduct is now clear: Get pregnant, ask for marriage, if the relationship ends, feel scorned and get revenge.

30. Bob is now being denied not only only his biological dad but also his stepdad.\1/
 

FOOTNOTE 1: The son, 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.

31. Upon information and belief, BOB, 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.

32. Neither Doctor Dread nor anyone else who performs thorough work has done a follow-up of Jane Smith-Jones or Bob Doe.

FOOTNOTE 2: 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 Doe's rights to visitation with his son since 1992 has been the equivalent of a parental termination proceeding without, however, any indicia of due process.

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 finite class 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 preponderance of the evidence is insufficient. In John Doe's case, not even was that standard reached.

33. Plaintiff incorporates herein by reference the allegations of paragraphs 1 through 32 above with the same force and effect as if herein set forth.

34. At all relevant times herein, John Doe 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.

35. John Doe has had a right under the state and federal constitutions to unsupervised visit with and shared legal custody\3/ of his minor child.
 

FOOTNOTE 3: "`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).

36. John Doe has been denied visitation, supervised or unsupervised, with and shared legal custody of his minor child.

37. Where there was no medical or psychiatric evidence or any clear and convincing evidence against John Doe, 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 until the present based on the deficient report of Doctor Dread, he has been unlawfully denied his right under both the state and federal constitutions to visit with his son.\4/
 

FOOTNOTE 4: Adoption 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).

38. Plaintiff incorporates herein by reference the allegations of paragraphs 1 through 37 above with the same force and effect as if herein set forth.

39. Not only where there was no medical or psychiatric evidence or any clear and convincing evidence\5/
 

FOOTNOTE 5: "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.
 

FOOTNOTE 6: "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).

where he has been denied the right to visit his child since 1992 until the present based both on Doctor Dread'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 the defendant mother's conduct of alienating Doe's son from any father can be now seen as an intentional pattern of alienating the son from any father -- biological and stepfather -- there is adequate demonstration of a substantial change of circumstances mandating that the relationship between John Doe and his son Bob be restored and re-established.\7/
 

FOOTNOTE 7: "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 John Doe's parental rights as to visitation with and shared legal custody of his son under the circumstances of this case in the past and in the future;

2. Make a determination that John Doe's state and federal constitutional rights to visit with and to have shared legal custody of his Bob were denied;

3. Make a determination that John Doe has a father's right to unsupervised visits with and to have shared custody of his son Bob under the statutes and state and federal constitutions;

4. Make a determination that John Doe has a right to unsupervised visits with and shared legal custody of his son Bob at this time;

5. Make a determination that this court will not further deny John Doe of his right to visit with or to share legal custody of his son based on the evaluation and report written by Doctor Dread;

6. Make a determination that the psychological examination of the father indicates that he is suitable to visit with his minor son without supervision;

7. Order that, absent any evidence of misconduct by John Doe from 1992 to present, John Doe has a statutory and constitutional right to unsupervised visits with and shared legal custody of his son Bob without further psychological examination;

8. Order that John Doe have extensive and reasonable unsupervised visits with his son Bob 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. RF (Bob's primary therapist);

10. Order that John Doe share legal custody of his son Bob with the defendant at this time.

A proposed order accompanies this Complaint for Modification.  

                                                                Respectfully submitted,
                                                                John Doe,
                                                                By his attorney,