September 9, 1988


Defendant, through his attorneys, respectfully requests the Court to continue his sole custody of the minor child which was agreed to by the plaintiff in early 1987, and to deny the plaintiff's application for a modification of custody and the restraining order, for the following reasons:

1.  Defendant denies the abuse allegations made in the plaintiff's affidavit in support of her application, and is entitled to his constitutional presumption of innocence even in these Family Court proceedings.

2.  To grant plaintiff's application is to impose a known harm on the minor child tearing him away from his father, his home, his school and his friends because the mother claims to believe her son has been abused by her ex-husband when there is no proof of any basis to her allegations.  It would be an abuse of the Court's discretion to impose a known harm upon the minor child due to nothing more than a "suspicion" that abuse occurred, where the allegation is made in a context suggesting it lacks validity and where the safety of the child from the suspected harm is assured.

3.  To ease the court's conscience, and to protect both himself and his son from further defamatory and unfounded accusations, the defendant has arranged for family and friends to supervise the defendant's exclusive custody of the minor child during the next two months, during which time the mother's fitness as a parent and the origin of these allegations can be properly investigated by the various physical and psychological examinations requested by the father in the various motions submitted seeking:

a) A psychological evaluation of the plaintiff;

b) Physical examination and psychological evaluation of the minor child;

c) Electronic recording of all interviews of the minor child;

d) A prohibition of the mother and her agents from interrogating the minor child;

e) The filing of UCCJA affidavits.

4.  Plaintiff appears to have serious emotional problems which make her unfit to parent the minor child, as evidenced by her actions in 1986 and 1987 when she wrote the defendant and told the defendant she could not handle her son and then voluntarily transferred her son to defendant's sole legal custody precisely because plaintiff knew defendant was the more fit parent.  Defendant's homosexuality is not an issue in this case since plaintiff knew the defendant was bisexual at the time of her marriage to him, thereafter bore three children during the marriage, and voluntarily gave defendant sole custody of her son when she knew her ex-husband was living with another man.

5.  The fact that the plaintiff returned her son to defendant's custody after supposedly learning on July 5, 1988 that the minor child had been sexually abused by his father, and then waited eight weeks until the beginning of the school year to apply to the court for a change of custody at a time calculated to be most disruptive to her son's life and her ex-husband's profession as a teacher, exposes the mother's patent attempt to manipulate the court to serve her own emotional needs and not the best interests of her son.  No parent who seriously thought his or her child in danger would voluntarily place that child at risk for a period of eight weeks.  The court should not condone the mother's abusive and manipulative behavior by granting her request, when the child's protection is otherwise assured.

6.  By continuing exclusive legal and physical custody of the minor child with the father pursuant to the mother's stipulation and court order of early 1987, under the auspices of the various supervisors who have agreed to participate, the minor child will be protected from the alleged threat of his father, will be protected from the known disruption to his life which would result were he to be torn away from his family, friends, father and school and subjected to his mother's apparently unstable and capricious emotional condition and the uncertainty of having to change homes and schools in the middle of sixth grade, and will encourage the parties to cooperate in thoroughly examining the issues the mother has raised by making these unfounded allegations, on an expedited basis.

WHEREFORE, for the reasons set forth herein and the accompanying affidavit of the defendant, the defendant respectfully requests the court to: (1) continue his exclusive legal and physical custody of the minor child; (2) vacate the mother's application for a change of custody and a temporary restraining order; (3) prohibit the mother from having visitation with her son until these proceedings are concluded and unless a supervisor is present; and (4) further prohibiting the mother from interfering with the father's custodial rights and from removing the minor child from the jurisdiction of this court, except upon court approval after notice to all parties and a full hearing.



by ____________________________
                    His Attorney

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