12 Mass. App. Ct. 869

June 5, 1981

Both the present judgments are vacated, and the case is remanded to the Probate Court for the prompt

Page 870

conduct of a new evidentiary hearing and for a prompt, fresh determination of who is presently entitled to the custody of Michele and Melissa under G. L. c. 119, Section 23(C), as appearing in St. 1973, c. 925, Section 40. If the custody of either or both of the children is awarded to the Department of Social Services (see G. L. c. 119, Section 21, as most recently amended by St. 1978, c. 552, Section 28), there shall also be a contemporaneous fresh determination of the mother's visitation rights. Both determinations (if both are necessary) are to be made in light of all the relevant principles and requirements expressed and enunciated in the cases of Bezio v. Patenaude, 381 Mass. 563 , 570-571, 573-574, 576-577 (1980), Petition of the Department of Pub. Welfare, 383 Mass. 573 , 583-584, 585-586, 587-594 (1981), Custody of a Minor, 383 Mass. 595 , 600-601 (1981), and Guardianship of a Minor (No. 1), 11 Mass. App. Ct. 980 (1981), all of which were decided subsequent to the entry of the present judgments. Custody and visitation pending the further proceedings are to be in the discretion of the Probate Court.

So ordered.