Opinion
No. 12–P–1679.
2013-09-27
CUSTODY OF LYNDON.
By the Court (CYPHER, VUONO & MEADE, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises from a dispute between a mother and father concerning the custody of their nonmarital child, who was born in May, 2009. By a judgment on the father's complaint for support, custody, and visitation pursuant to G.L. c. 209C, and the mother's counterclaim for custody, a judge of the Probate and Family Court ordered that the parties shall have essentially equal parenting time with the child until the child's enrollment in school and that they shall share legal custody of the child. The father has appealed. We affirm the judgment.
1. Background. The father, a paramedic, and the mother lived together at the time the child was born and continued to live together until February, 2010, when their relationship experienced substantial problems. The judge found that the father had commenced a sexual relationship with another woman in the spare bedroom in the parties' apartment after the mother had agreed to give the other woman temporary refuge from an abusive relationship. The father married the other woman eight months after moving out of his and the mother's apartment, when the other woman was apparently pregnant with their first child, who was born approximately three months later. The judge found that the mother continues to have emotional pain from the circumstances of the parties' break-up.
After the parties' break-up, the mother, who, the judge found, had “apparently limited options,” returned to school to become certified as a sleep technician. During the months immediately following the break-up, the mother granted the father “great leeway in parenting time.”
In April, 2010, the father filed his complaint for support, custody, and visitation and also sought temporary orders for physical custody of the child. In an unsigned affidavit, the father stated that since February, 2010, he had physical custody of the child from Sunday morning to Friday evening and requested that the judge “formalize” that arrangement. By a temporary (ex parte) order dated April 27, 2010, the father was awarded physical custody of the child, the judge stating that there was a real risk that the mother would take the minor child and flee.
The risk of flight was never presented at any subsequent hearing.
On April 30, 2010, the review date for the ex parte orders on the father's complaint, the mother filed a counterclaim for physical custody. The parties then stipulated to a parenting plan where the father was to have “physical custody” of the child (i.e., the father was to have the child from Sunday morning to Friday morning; the mother was to have the child from Friday morning to Sunday morning), and the father and mother were to share legal custody. The stipulation, which was incorporated and made part of an order of the court, further provided that the “[p]arties agree to be fair and adjust scheduling of child care needs as circumstances change....”
Thereafter, the parties continued to spar over the custody of the child. Among other things, the mother, in July, 2010, near the end of her certification training, moved for joint physical custody of the child. After the father filed a motion for appointment of a guardian ad litem (GAL), the parties stipulated that a GAL would be appointed to investigate physical custody. The judge later approved a stipulation of the parties under which the parties agreed to continue to cooperate with the ongoing GAL investigation.
By orders that were issued on December 14, 2010, after a pretrial hearing at which both parties were present, the guardian ad litem investigation was vacated at the request of the parties, and the judge amended the mother's parenting time to award her weekly visits as follows: “[i] From Thursday 9:00 A.M. through Sunday at 9:00 A.M. in week # 1; [ii] From Wednesday at 9:00 A.M. through Sunday at 9:00 A.M. in week # 2.”
In a brief “Memorandum of Orders” the judge stated: “The father has had custody of the infant child since the stipulation of the parties [on] April 30, 2010. Both parent's schedules have changed since that stipulation. Father has become unemployed, mother is no longer in training. Taking each parent's availability into consideration, the child ... is afforded ample parenting time under the above terms with each of his parents.”
Following a trial over two days in October/November, 2011, at which both parties sought primary physical custody of the child, the judge, on December 20, 2011, issued a judgment that contained a weekly parenting plan which is identical to that set out in the order of December 14, 2010.
The judge also awarded the parties shared legal custody of the child. In addition, the judge stated that “[n]otwithstanding the grant of shared legal custody, the mother's residence shall be deemed the child's primary residence for school enrollment purposes.” Finally, for purposes relevant here, the judge stated that “[i]nsofar as the parties have roughly equal parenting time under the above schedule, no child support is ordered at this time. However, it is anticipated that once the child is enrolled in school a child support order may be requested by filing a new complaint.”
The judge restated the time the mother was to have with the child and set out the time (implicit in the order of December 14, 2010) the father was to have with the child, i.e., in week # 1 the child was to be with the father from 9:00 A.M. Sunday through Thursday at 9:00 A. M., and in week # 2 from 9:00 A.M. Sunday through Wednesday at 9:00 A. M.
The judgment is supported by a memorandum of decision which we shall discuss more fully, infra.
The judge elaborated in her memorandum of decision on her orders concerning the child's enrollment in school: “Once the child is enrolled in school, and assuming no change in proximity of the parents [at the time of trial the father lived approximately two hours travel time and about 80 miles distance from the mother's residence], it is anticipated and expected that the parenting plan referenced above [in the judgment] will no longer be practical. The adjudged parenting plan anticipates that [the mother] will enroll the child full time in school when it is time. If the parties are not able to come to terms as to an amended parenting plan including child support which will take into consideration the child's school schedule, a complaint for modification may be filed.”
2. Discussion. The father argues that the judge “abused [her] discretion in denying [his] request for full custody [of the child], ordering shared custody initially but awarding primary physical custody to the mother at the time the child is enrolled in school.” In fashioning his argument the father asserts that certain findings of the judge are unsupported by the evidence and are plainly wrong. The father also urges that the judge abused her discretion in awarding joint legal custody of the child to the parties.
The best interests of the child is the “touchstone inquiry” in child custody cases. Smith v. McDonald, 458 Mass. 540, 544 (2010), quoting from Custody of Kali, 439 Mass. 834, 840 (2003). See J.S. v. C.C., 454 Mass. 652, 656 (2009). See G.L. c. 209C, § 10( a ). “ ‘The determination of which parent will promote a child's best interests rests within the discretion of the judge ... [whose] findings in a custody case ‘must stand unless they are plainly wrong.’ “ Custody of Kali, 439 Mass. at 845, quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998). “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” J.S. v. C.C., 454 Mass. at 657, quoting from Mason v. Coleman, 447 Mass. 177, 186 (2006). An appellate court, however, will not sustain an award of custody unless all relevant factors have been weighed in determining the best interests of the child. J.S. v. C.C. supra.
With respect to awards of custody of nonmarital children, G.L. c. 209C, § 10( a ),
“gives direction to the judge's consideration of a child's ‘best interests' by ‘evincing a general intent on the part of the Legislature to maintain the bonds between the child and her caregiver.’ “ Custody of Kali, 439 Mass. at 843, quoting from Custody of Zia, 50 Mass.App.Ct. 237, 244 (2000). As we have suggested, § 10( a ) does not limit the factors a judge may consider in determining what custodial arrangements are in the best interests of the child. Custody of Kali, supra at 483–484.
.General Laws c. 209C, § 10( a ), inserted by St.1986, c. 310 § 16, provides, in part: “Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly ... as may be appropriate in the best interests of the child.
“In awarding custody to one of the parents, the court shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent. The court shall also consider where and with whom the child has resided within the six months immediately preceding proceedings pursuant to this chapter and whether one or both of the parents has established a personal and parental relationship with the child or has exercised parental responsibility in the best interests of the child.”
Here, for apparent purposes of § 10( a ), the judge made findings concerning the history of the child's living arrangements with each parent and the establishment by each parent of a personal and parental relationship with the child. However, as to the required consideration of § 10( a ) that the judge shall, to the extent possible, preserve the relationship between the child and the primary caretaker parent, the father points out that the judge's order of December 14, 2010, “effectively destroyed” his role as the primary caregiver of the child. While the father faults the judge for undermining the child's stability by failing to maintain the status quo during the outcome of this case, see Custody of Kali, 439 Mass. at 843–844, 846,
he acknowledges that given the fact that neither parent occupied the role of primary caregiver at the time of trial, with “both parents regularly exercis [ing] proportional parental responsibility over [the child's] care,” it was within the judge's discretion to conduct a “point-by-point comparison between [the] parents.” Id. at 846–847.
The father does not assert that he sought review of the order dated December 14, 2010. As indicated, the judge explained briefly the reasons for the order. See note 2, supra. We have not been provided with a transcript of the hearing which resulted in that order.
In the instant matter, the judge considered numerous factors, including the arrangements for the child's care
and the parties' stipulation that the child was “healthy” with “no medical problems at this time.” We think it is apparent that the judge's judgment was intended to preserve “to the extent possible” the relationship between the child and his parents at the time of the judgment. Id. at 847. As in Custody of Kali, supra, “[t]he judgment was structured to ensure that both parents, each of whom had, during the pendency of the action, established responsibility as [the child's] caregiver, and each of whom had established a positive parental relationship with [the child], would be able to preserve, foster and strengthen those relationships.”
The mother, who maintains two jobs, and who has “provided housing for herself and the child in the face of great odds” is assisted in care of the child during her parenting time by her family members and friends. The father is currently unemployed, but seeking employment, and is married to a nurse. He presently stays at home with his wife's two children from prior relationships (ages twelve and one-half and four), and their infant son who was born in January, 2011. The father and his wife are expecting a second baby who is due soon.
At the same time, the judge made findings which militate against an award of primary physical custody to the father. Among other things, the judge found that the father is “the less likely of [the child's] parents to keep the other parent involved in the child's life in a meaningful and positive way,”
see Hunter v. Rose, 463 Mass. 488, 494–495 (2012), citing Custody of Zia, 50 Mass.App.Ct. at 244 (“custody to parent willing to respect other parent's role in child's life”), that the mother was worthy of more respect than she appears to have been afforded by the father and his wife, that the father's household has moved three times in less than two years and that insufficient time had passed for the judge to infer that the household was sufficiently stable under these circumstances, and that throughout the proceedings the mother had put the child's best interests first in terms of her proposals for and agreements to parenting plans. The judge also found that many of the allegations made by the father in support of his requests for full custody—that the mother was angry, volatile, and subject to unkind outbursts directed at him or his girlfriend, now wife, had to be viewed in the context of the husband's conduct at the time of the parties' break-up.
This finding is the product of inferences drawn by the judge “from the content of [the father's] interactions with and references to [the mother] as a mother, his lack of candor as to the circumstances under which the relationship ended, and his geographical distancing of himself and his new family from where he and [the mother] were raising [the child].” While there is little in the record to suggest that the father distanced himself geographically with the intention of affecting the mother's involvement with the child, we think, on the whole, and contrary to the father's position, that the judge's finding flows from the inferences.
While the judge did not condone the mother's temperamental behavior and, at times, hurtful comments and outbursts, she noted that the mother had expressed regret for her behavior at trial and she admonished the mother against any such unseemly behavior in the future.
The father challenges the judge's finding concerning his conduct at the time of the break-up, stating that there is absolutely no support in the record that he commenced a sexual relationship in the spare bedroom of the couple's apartment with a woman to whom the mother had agreed to give temporary refuge from an abusive relationship. Continuing, the father states that the judge used this “fiction” to excuse the mother's angry and volatile behavior. The mother, who was acting pro se, testified, inter alia: “[W]hat [the father] failed to mention to you was that in February he moved his now wife into our household while I was taking care of [the child].... I was taking care of [the child] while they were upstairs in the next room. And, maybe, yes, I have been hostile about that. It was upsetting and that course made to leave the residence in the first place. At first, it was supposed to be a night and she was having marital problems with her ex-husband. He moved her in.” While we think the judge reasonably could infer from the foregoing that the father and his now wife were engaging in sexual conduct, even were we to assume that such an inference was not reasonable, the wife's testimony, at a minimum, reflects grossly insensitive conduct on the part of the father which, as the judge noted, gave context to the mother's (at times) angry and unkind behavior towards the father and his now wife.
In the circumstances, we cannot say that the judge abused her discretion by failing to award “full custody” to the father.
The judge also noted that throughout the litigation the father had made allegations and raised issues concerning the mother's “parenting, sanity and homemaking skills.” Yet, the judge stated, after the father requested and was given the opportunity to have a GAL investigation on the issues of parenting and custody, he declined to go forward with the investigation. The judge did not credit the father's testimony to the extent it suggested that the mother was inept or deliberately uncooperative as a parent. In addition, the judge found that while the father had consistently raised safety issues in the mother's home as reasons why he should be the custodial parent, the most serious accident suffered by the child occurred while he was in the father's care, when he fell backwards down a long staircase and was taken to the hospital for examination.
The father also takes issue with that part of the judgment which provides that “the mother's residence shall be deemed the child's primary residence for school enrollment purposes.” The husband states that under this provision his parenting time will, of necessity, be reduced to weekends and school vacation time upon the child's enrollment. To the extent the father asserts that the judge's order will “produce a significant disruption in the stability and continuity of the child's life when that time arrives” (thus, in the father's opinion, reflecting a lack of consideration by the judge of the child's future best interests), the judge's order simply reflects the reality of parties living a substantial distance from each other. As to the father's additional arguments that the judge's findings fail adequately to explain or support a conclusion that an award of physical custody to the mother would be in the best interests of the child at the time of the child's enrollment in school, it is apparent that the judge had in mind certain of the considerations stated above, including the father's lack of respect for the mother, the greater likelihood that the mother will keep the father involved in the child's life in a positive way, and the mother's history of putting the child's best interests first in working on parenting arrangements. The judge found that “[t]here was no credible evidence to suggest that [the mother] is unfit as a parent nor that [the child] would not benefit from being in her primary care as opposed to his father's when the time comes for him to enroll in school.” While the judge's findings might have been more comprehensive on the point, we think they adequately reflect the judge's rationale and, in the circumstances, we decline to disturb the judgment.
Of course, should circumstances change, the father would be free to file a complaint for modification.
Finally, the father argues, briefly, that the judge abused her discretion in awarding joint legal custody of the child to the parties. More specifically, the father states that the award fails to comply with G.L. c. 209C, § 10( a ), third par.
the parties did not enter an agreement satisfying the requirements of G.L. c. 209C, § 11( c ), as amended by St.1998, c. 64, and the judge did not make an express finding that the parties had successfully exercised joint responsibility for the child and had the ability to communicate and plan with each other concerning the child's best interests.
.General Laws c. 209C, § 10( a ), third par., provides: “In awarding the parents joint custody, the court shall do so only if the parents have entered into an agreement pursuant to section eleven or the court finds that the parents have successfully exercised joint responsibility for the child prior to the commencement of proceedings pursuant to this chapter and have the ability to communicate and plan with each other concerning the child's best interests.”
“In awarding joint custody absent an approved custody agreement between the parties, to comply with G.L. c. 209C, § 10( a ), the judge's findings must support the conclusion that the parties can cooperate in making decisions for the child and have done so in the past.” Smith v. McDonald, 458 Mass. at 553. “An explicit written finding, while preferable, may be unnecessary when the record indicates an entirely amicable relationship and readily ‘supports an inference that the requisite findings are implicit in the judge's order.’ “ Ibid., quoting from K.J.M. v. M.C., 35 Mass.App.Ct. 456, 458 (1993). When the record reflects, however, a “hostile and tumultuous relationship between the parties, positive findings are required to support an inference that joint decision-making authority is appropriate for the future.” Ibid.
While in the instant matter, it would have been preferable for the judge to make an explicit written finding concerning joint legal custody, we think the record supports the inference that an order for joint decision making authority is appropriate in the present case. It is noteworthy that notwithstanding the problems in the parties' relationship, the judge found that the parties agreed on April 30, 2010, that they would share legal custody of the child. The joint custody arrangement was continued by the order of December 14, 2010, and remained in effect, as the father acknowledges in his proposed findings, at the time of trial in October, 2011.
As we have indicated, the judge also found that throughout the proceedings the mother had put the child's best interests first in terms of proposals for and agreements to parenting plans. It reasonably may be inferred from this finding that the mother was flexible and willing to work with the father on matters concerning the child. Clearly, the judge was of the view, as were the parties when they entered into their agreement for joint legal custody, that despite the conflict and issues between the parties themselves, they could work together to make decisions in the best interests of the child.
It is to be noted that the judge who issued the judgment in the present case is the same judge who approved the parties' agreement of April 30, 2010, and ordered that certain prior orders shall continue on December 14, 2010. The judge was intimately familiar both with the history of the case and the parties.
See Doe v. Doe, 16 Mass.App.Ct. 499, 502 (1983). We decline to disturb the judge's order for joint legal custody.
As the judge stated in her closing remarks to the parties, it was time to stop pointing fingers at each other and start focusing on “what you tell me you're focused on, which is [the child].” “There's no doubt in my mind that you both want what is best for the child.”
There is nothing in the father's remaining arguments that would cause us to vacate the judgment.
Judgment affirmed.