Opinion
10-P-646
08-18-2011
M.J. v. C.L.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The mother appeals from a modification judgment of the Probate and Family Court awarding custody of the parties' son, Jason, to the father with visitation rights to the mother. The mother contends that the trial judge failed to identify and explain the best interests of the child served by a transfer of custody; that the trial court proceedings suffered from lapses of due process; and that the trial court discriminatorily favored the father's culture against the mother's. For the following reasons, we reject those contentions and affirm the judgment.
We use a pseudonym for the child.
Background. The evidence supports the following findings of fact by the trial judge. Because the judge's final award of custody rested in large part upon the parties' conduct during the litigation, we recount the main events of the procedural history.
In her brief in this court, the mother challenges the judge's conclusion that a material and substantial change in circumstances occurred so as to require a transfer of custody from mother to father for Jason's best interest. She challenges that conclusion, but not the voluminous subsidiary findings made by the judge and condensed here. The findings are not 'clearly erroneous' within the meaning of Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996).
In the summer of 1997, the father, a single parent, hired the mother to serve as a nanny to his son. In 1999, the parties engaged in a sexual relationship. After the mother informed the father of her resulting pregnancy, he terminated her employment. She struggled to find new employment and asked the father for financial assistance. He did not provide her with any money.
Jason was born on November 6, 2000. On the following day the father asked the mother to grant him custody of Jason. She refused. Two or three days later, the father repeated the request. The mother again refused. Soon afterward the mother began to ask the father for financial support. She said she would have to take the child to her native Guatemala if he did not provide assistance. The father continued to refuse. In June, 2001, the mother took Jason to Guatemala.
In November, 2001, she returned to Massachusetts with Jason and with two older children from a marriage in Guatemala. When the father did not respond to her communications, the mother filed a pro se complaint to establish paternity of Jason. Shortly afterward, genetic marker testing established paternity. The parties formed a temporary agreement for joint legal custody; the mother would retain physical custody; the father would visit Jason twice per week.
The agreement quickly broke down. The mother denied the father visitation on numerous occasions throughout the summer of 2002 and often berated the father as he picked up and returned Jason. The father brought a contempt complaint. Before the contempt trial, the parties reached a purportedly final settlement agreement under which the mother would retain primary physical custody and the father would have custody on the weekends. The agreement was incorporated into a judgment of paternity dated April 14, 2003.
That agreement also broke down quickly. The mother did not allow the father to pick up Jason on the first weekend because of her dissatisfaction with the amount of his child support payments. Another contempt action followed immediately. When the mother promised to abide by the terms of the settlement custody agreement, the court continued the contempt action.
The settlement terms functioned through the summer of 2003. A third breakdown then occurred: the mother denied visitation to the father throughout the months of September and October. At a hearing at the end of October, the judge imposed a jail sentence on the mother, suspended on condition of her compliance with the settlement custody agreement. As the parties left the courthouse, the mother threatened to kill the father.
Despite the warning of incarceration, the mother again refused to comply with the custody agreement. She disrupted the father's first November visit by traveling to his house and spying on Jason and him through a window. She denied visitation on the following weekend because she had planned a birthday party for the boy. In mid-November the court found her in contempt and imposed another suspended jail sentence. Nonetheless, on November 22, the mother called the father a 'monster' as he picked up Jason, and then telephoned his home and cursed him.
The judge had presided over prior hearings and negotiations. He was not unaware of or insensitive to the mother's perceptions and feelings. In his final conclusions, he observed the following.
'[The mother] had not overcome the pain inflicted by [the father's] dismissal of her and [Jason] after [Jason's] birth. She also could not accept the legitimacy of the child support order when she saw the disparity between what [the father's older son] had and what [Jason] had. [She] also saw [the father's] girlfriend as a competitor for [Jason's] affection and perhaps, for [the father's] as well.' (Footnote omitted.)
The father then filed a complaint for modification awarding him primary custody. When the father arrived to pick up Jason on the following Saturday, the mother struck him, and he left without the child. He made no further attempts to pick up the boy on weekends.
On January 8, 2004, the court conducted a hearing upon the continued contempt action and the father's motion for temporary custody. The father's counsel had properly served the mother with the father's modification complaint and his motion for a change in temporary custody; however, the father's counsel had not informed the mother that the motion for a change in temporary custody would receive a hearing on January 8 along with the contempt matter. She appeared without counsel. At the conclusion of the hearing, the judge awarded temporary custody of Jason to the father and supervised visitation to the mother.
The mother's attorney had withdrawn, with the probate judge's permission, on November 18, 2003, in accordance with an order of the Board of Bar Overseers resulting from a separate matter.
In June, 2005, the judge conducted a two-day trial upon the father's modification complaint. He found that a material change in circumstances had occurred by reason of the mother's repeated obstruction of the father's visitation. He concluded that primary custody by the father served Jason's best interests because the mother was unwilling to permit him to develop a relationship with the father and that, despite insensitivity toward Jason and the mother during the first seventeen months of the boy's life, the father had made a commitment to the son and was 'fill[ing] the role of a good father.' The judge concluded also that continuing fraternity with Jason's older half-brother in the father's household, in the same school system, and in the same community activities, served Jason's best interests. He awarded the father primary custody and the mother supervised visitation.
The half-brother is three and one-half years older than Jason. At oral argument, the parties acknowledged that the mother's other children were now nearly adults.
The mother could receive unsupervised visitation upon conditions (1) that she sign a Hague Convention stipulation (conceding that any unilateral removal of the child from the United States by the mother would constitute a violation of the father's custody rights and misconduct within the meaning of the Convention; and that the stipulation was admissible in any adjudication of custody by a foreign tribunal of competent jurisdiction); (2) that she obtain a letter from a social worker, therapist, or psychologist opining that she would refrain from denigration of the father in Jason's presence; and (3) that she obtain a professional opinion that she would not attempt to hide Jason from the father. The mother has moved this court for permission to file a motion in the Probate and Family Court demonstrating her compliance with these conditions. We grant that permission.
Analysis. 1. Standard of review. '[A] request for modification of custody . . . must be based on a material and substantial change in circumstances . . . .' D.C. v. J.S., 58 Mass. App. Ct. 351, 357 (2003), quoting from Rosenthal v. Maney, 51 Mass. App. Ct. 257, 261 (2001). '[T]he change must be of sufficient magnitude to satisfy the governing principle, namely, whether the transfer [of custody] is in the best interests of the child.' Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220 (2002). 'The decision of which parent will promote a child's best interests 'is a subject peculiarly within the discretion of the judge." Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987), quoting from Jenkins v. Jenkins, 304 Mass. 248, 250 (1939). The best interests analysis must include 'specific or detailed findings based on evidence within the record.' Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 741 (1996). 'The rationale for the decision must appear in the judgment either explicitly or by clear implication, and the mere listing of findings, even if detailed, is not enough.' Bowring v. Reid, 399 Mass. 265, 267-268 (1987), citing Redding v. Redding, 398 Mass. 102, 108 (1986).
2. Judge's explanation of rationale. The mother's first contention is that the judge failed to explain his conclusion that a transfer of primary custody to the father would serve the child's best interests; and that the award of custody rested in fact upon socioeconomic biases against the mother's Hispanic culture. The judge's findings and reasoning were abundant and clear. He had long-running involvement with the case. The essential ground of decision was the mother's implacable obstruction of the development of a relationship between the father and Jason. The judge repeatedly warned her about that conduct at the contempt hearings. She did not, or could not, heed the warnings. The charge of cultural bias receives no support from the record.
After the finding of contempt on November 14, 2003, the judge ended a memorandum of decision with the following paragraph:
'The mother has consistently frustrated visitation and undermined the father/son relationship. The evidence is clear that it is in the minor child's best interest to have regular and frequent contact with his father. The mother is hereby put on notice that continuing her efforts at parental alienation may result in a change in the custody status of the minor child.'The conditions imposed by the judge for unsupervised visitation by the mother had support in the evidence, as well. See note 6, supra. Her prior removal of Jason to Guatemala, her threats to deprive the father of custody, and her disparagement of the father in Jason's presence justified the cautionary requirements set by the judge. He had discretion to reject the view of the guardian ad litem that the mother had 'learned her lesson' to honor court orders and would not require supervision of her visitation. See Freedman v. Freedman, 49 Mass. App. Ct. 519, 522 n.1 (2000).
3. Material and substantial change in circumstances. The mother characterizes the judge's determination of a material and substantial change in circumstances as an abuse of discretion. She emphasizes the absence of any factual finding of a decline in her ability to care for Jason.
However, in a custody dispute, the requisite change in circumstances need not be a parent's reduced ability to care for a child. See Stevens v. Stevens, 337 Mass. 625, 627 (1958) (change of circumstances where mother had remarried and settled into a 'good home' and father's military career required frequent moves); Hernandez v. Branciforte, 55 Mass. App. Ct. at 220-221 (mother's unlawful removal of child to Italy supported material change in circumstances). In this case, the mother's progressive resistance to the father-son relationship constituted a material and substantial change in circumstances. At the time of the settlement custody agreement, the mother appeared willing to allow the father to visit with Jason. Over the course of the next six months, it became clear that the mother was, in fact, increasingly unwilling to abide by the custody agreement. This change in the mother's attitude was material and substantial because it drastically impaired the development of a bond between the father and son. See id. at 220, 221 (finding material and substantial change in circumstances where there was a 'breakdown in communication between the parties' and mother failed 'to place the welfare of her son above her own').
4. Best interest calculation. The mother challenges the judge's allocation of weight to the relevant factors in the child's best interest. In particular she maintains that the judge failed to value fully both her role as Jason's original caretaker and the father's early indifference toward the child.
The mother's early primary custody was an important, but not exclusive, consideration. See Custody of Kali, 439 Mass. 834, 844 (2003) (statutory considerations do not create a 'presumption that the caretaker with whom the child is primarily residing will be awarded permanent custody'); Custody of Zia, 50 Mass. App. Ct. 237, 244 (2000) ('[T]he language of [G. L. c. 209C,] § 10(a), . . . while evincing a general intent on the part of the Legislature to maintain the bonds between the child and her [primary] caregiver, is not conclusive on the question of custody'). The judge balanced all the necessary factors and ultimately gave more weight to the mother's disruption of the father-son relationship than to the mother's status as Jason's primary caretaker. He was well within his discretion to weigh the relevant factors in this manner. See id. at 244-245 (probate judge did not abuse discretion by weighing father's positive influence on child more heavily than mother's role as primary caretaker).
The judge did weigh the father's original passivity, but permissibly attributed overriding weight to his assumption of responsibility after the determination of his paternity. See Guardianship of Yushiko, 50 Mass. App. Ct. 157, 160 (2000) ('The mere fact that the father has on occasion shown some lack of interest or involvement in the child's life clearly does not rise to the level of disinterest, abandonment, or inattentiveness which demonstrates parental unfitness').
5. Procedural defects. The mother claims violation of her right to due process because (1) she did not have notice that temporary custody would be an issue at the January 8, 2004, hearing, (2) she did not have an interpreter at the hearing, and (3) she did not have counsel at the hearing. In the circumstances, none of these claims amounts to a due process violation.
The mother also claims that a court-certified interpreter should have been present on April 14, 2003, to translate the final judgment of paternity for her. This claim has no merit because the mother's appeal relates to the judge's modification decision. The initial paternity proceeding, which was brought by the mother, was a separate legal proceeding.
As the trial judge acknowledged, father's counsel should have notified the mother that temporary custody would be an issue at the January 8, 2004, hearing. The failure of notice was unfortunate; however, it does not require a reversal of the ultimate custody decision. The mother had a full and fair opportunity to litigate the issue of custody at the two-day trial in June, 2005. '[W]here a party does not receive timely notice, but does participate in the hearing or receive a future meaningful opportunity to litigate, there is no due process violation.' Care & Protection of Orazio, 68 Mass. App. Ct. 213, 220 (2007). The mother's other arguments lack merit for the same reason. She had counsel and an interpreter at the modification trial. Therefore, no due process violation occurred.
Modification judgment
affirmed.
By the Court (Berry, Meade & Sikora, JJ.),