Opinion
10-P-1569
01-03-2012
PAMELA SZAJDA v. KENNETH SZAJDA.
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 father appeals from an amended judgment of the Probate and Family Court that ordered, in connection with the divorce of the parties, the mother to have sole physical custody of the couple's three children (albeit with liberal visitation for the father). The father contends that the judge erred in rejecting the recommendations set forth by the guardian ad litem (GAL) of joint physical custody. Specifically, the father avers the judge (1) improperly rejected the GAL's recommendations without adequate analysis or good cause, (2) failed to take proper notice of the harmful effect of the mother's boyfriend on the children, and (3) abandoned a gender-neutral analysis by failing to consider whether the parties' roles had changed or should change following their separation. The father contends in the alternative that even if the grant of sole physical custody to the mother was proper, the judge nonetheless should have ordered that the children attend school in Holliston due to the superior nature of the Holliston school system in comparison to the children's current school system in North Attleboro. We affirm.
Discussion. 1. Rejection of GAL's recommendations. The father argues first that the judge erred in granting sole physical custody of the children to the mother. The judge's decision shows that it was appropriately grounded in concern with the best interests of the children. See Rolde v. Rolde, 12 Mass. App. Ct. 398, 402 (1981) (in deciding issues involving custody, overriding concern must be best interests of children and their general welfare). Based on the ample evidence set forth in the record and the judge's findings, the judge did not abuse his discretion.
'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. 834, 845 (2003), quoting from Rosenberg v. Merida, 428 Mass. 182, 191 (1998). '[D]ue regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.' Mason v. Coleman, 447 Mass. 177, 186 (2006), quoting from Mass.R.Dom.Rel.P. 52(a). 'However, we will not sustain an award of custody 'unless all relevant factors in determining the best interests of the child have been weighed." Custody of Kali, supra, quoting from Rosenberg v. Merida, supra.
'[A] judge may consider any factors found pertinent to those interests in the circumstances of the dispute.' Custody of Zia, 50 Mass. App. Ct. 237, 243 (2000). See Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996) ('The decision of which parent will promote a child's best interests 'is a subject peculiarly within the discretion of the judge''), quoting from Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987). In determining the best interests of the children the judge may consider 'the widest range of permissible evidence,' including the report of the GAL, 'evidence of the history of the relationship between the child and each parent,' and 'evidence of each parent's present home environment and overall fitness to further the child's best interests.' Ardizoni, supra. Where a GAL is involved in a custody dispute, '[t]he [GAL] is free to make recommendations, 'provided the judge draws his own conclusions and understands that 'the responsibility of deciding the case [is] his and not that of the [GAL]."" Pizzino v. Miller, 67 Mass. App. Ct. 865, 876 (2006), quoting from Delmolino v. Nance, 14 Mass. App. Ct. 209, 212 (1982).
Here the judge reached his own conclusion based on the evidence presented. The judge rejected the GAL's recommendation of joint physical custody because of an inherent bias or prejudgment held by the GAL favoring joint physical custody in all cases. The judge acutely pointed out that the GAL did not consider other relevant factors that were properly before the court, including (1) the mother's history as the primary care giver; (2) the father's apparent lack of interest in providing care until recently; (3) the effect of what would amount to a custody change on the children (temporary orders gave the mother sole physical custody); and (4) the effect on the children of spending at least half their time in different communities (as the GAL recommended). While the judge deemed both parties fit and responsible parents, the judge believed that the parties were unable to effectively communicate on a variety of issues and, therefore, determined that the status quo (sole physical custody with the mother and the children remaining in their present North Attleboro school system) would be in the children's best interests. Such a finding fell within the discretion afforded to the judge under Massachusetts law.
2. Consideration of the impact of mother's boyfriend. The father avers that the judge failed to consider in his custody ruling the deleterious effects of the mother's affair with the boyfriend as well as the boyfriend's presence in the lives of the children. However, contrary to the father's claim, the judge did consider the presence of the boyfriend and dismissed it as having no adverse effects upon the children.
The main inquiry of a custody award is the well-being of the child: '[t]he weight ascribed to the respective factors [in determining custody] is to be measured solely in terms of its effect on the welfare or well being of the child.' Bouchard v. Bouchard, 12 Mass. App. Ct. 899, 899 (1981). However, as noted in Fort v. Fort, 12 Mass. App. Ct. 411, 415 (1981), 'in the usual case, judges should avoid making moral judgments on the life-styles of proposed custodial parents, recognizing that such judgments are appropriate only when it can be shown that a parent's life-style has a direct and articulable adverse impact on the child, or where there can be no real dispute in the circumstances of the particular case that the behavior of the custodial parent is related to his or her parenting ability.' See Kelly v. Kelly, 12 Mass. App. Ct. 937, 938-939 (1981) (husband failed to demonstrate as clearly erroneous the judge's finding that the wife's ongoing relationship with a married man had little negative effect, if any, on the welfare of the children, where there was 'conflicting evidence on the nature of the relationship' and 'little evidence of any substance on what effect, if any, the relationship might have had on the welfare of the children').
Accordingly, the judge found that the mother's relationship with her current boyfriend did not affect the custody determination. The judge noted that, while the boyfriend does have contact with the children, there is no evidence that his contact was in any way unfavorable. The father has not shown this finding to be plainly wrong.
3. Failure to consider postseparation conduct of the parties. Upon review, we find the judge did not ignore the increased efforts the father has made to be involved in the lives and activities of the children since the separation of the parties. Rather, it was undisputed that thus far the mother acted as the primary caretaker throughout the children's lives, and the judge properly relied on this fact in deciding that the mother should continue to do so in order to provide stability and consistency, factors that the judge properly recognized in making a custody determination. See Custody of Kali, 439 Mass. at 843-844. See also G. L. c. 208, § 31; Rolde v. Rolde, 12 Mass. App. Ct. at 405-406.
4. School placement of the children. With respect to the impact of the judge's decision on the school placement of the children, the father has failed to demonstrate that the judge abused his discretion in permitting the children to remain in the North Attleboro school system.
Amended judgment affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),