KATHY NANCE DELMOLINO vs. JAMES S. NANCE.

SMITH, J. On March 15, 1977, Kathy Nance (mother) was granted a divorce from James S. Nance (father) and legal and physical custody of their minor child, Nicole, then age seven, was given to the mother. The father was given visitation rights and was required to pay child support. In 1978, the father married his present wife and in 1980, the mother married her present husband, William Delmolino.

Since the time of the divorce, bitterness and animosity have characterized the relationship between the parties. The mother filed several complaints for contempt alleging that the father had failed to pay child support. The father, in turn, on February 12, 1979, filed a complaint for modification which requested permanent custody of Nicole. This complaint was not marked up for a hearing until certain events took place in 1980.

In August, 1980, Delmolino received a promotion which required the family to move to Ohio. Upon hearing of the

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imminent departure of Nicole to Ohio, the father obtained an order that temporarily granted him custody of Nicole for a two-week period. [Note 1] Unable to locate Nicole in Massachusetts, the father went to Ohio, removed Nicole from a school bus, brought her back to Massachusetts, and obtained temporary custody pending the hearing on his complaint for modification. Prior to removing Nicole from the Commonwealth, the mother did not seek the consent of the judge. See G. L. c. 208, Section 30.

A hearing was held before a Probate Court judge on the father's complaint for modification in which he requested permanent custody of Nicole and on the mother's complaint for modification in which she requested permission to remove Nicole from the Commonwealth. [Note 2] After the hearing, the judge modified the original judgment and ruled that "[l]egal and physical custody of Nicole shall be joint and equal in both parents." Despite ruling that physical custody of Nicole shall be "equal in both parents," the judge ruled that "Nicole shall reside with [the father] during the school year . . . and . . . with [the mother] during the Thanksgiving, Christmas, February, Easter and summer school recesses." [Note 3] The judge took no action on the mother's request for permission to take Nicole to live with her in Ohio. The mother has appealed and claims, among other things, that the judge erred in ordering a change in custody without first finding that a relevant change in circumstances had occurred since the entry of the judgment that awarded sole custody to her. We have before us a complete transcript of the evidence and the judge's memorandum in support of his decision.

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The law in this type of case is simple and easy to grasp, although, at times, difficult of application. For decades, it has been the law that the original judgment awarding custody to a parent is presumed to have been correct, see Hersey v. Hersey, 271 Mass. 545, 554 (1930); Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974); Haas v. Puchalski, 9 Mass. 555, 557 (1980), and that before a judge can order a transfer of custody from one parent to another, he must affirmatively find that there is a relevant change in circumstances. See Hinds v. Hinds, 329 Mass. 190, 191 (1952); Haas v. Puchalski, supra at 557. In addition, "that change must be of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]." Fuller v. Fuller, supra at 376. The original judgment here had given the mother sole custody of Nicole. The judge's ruling stripped sole custody of the child from the mother and ordered that custody be shared by the father and mother. In addition, the judge gave the father physical custody of the child for the entire year, with the mother limited to physical custody during school recesses. Obviously, the move to Ohio was a change in circumstances, but there is nothing in this record or in the judge's memorandum that dictates that the best interests of the child require a transfer in custody.

The memorandum is replete with praise for the mother and stepfather. The judge found that the mother "is a fine parent" who "loves Nicole very much, and is deeply interested in Nicole's future." The mother is praised for teaching Nicole "good personal values" and for being at all times "deeply interested in Nicole's academic progress." The judge was also unstinting in his praise for Nicole's stepfather, William Delmolino. [Note 4] There is nothing in the record or in the judge's memorandum to indicate that the mother has been an inadequate parent in any respect, or that her second marriage has been detrimental to Nicole. Id. at 377.

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It is apparent from an examination of the judge's memorandum that he relied, to a great extent, on the report of a guardian ad litem, appointed under G. L. c. 215, Section 56A. [Note 5] The appointment directed the guardian ad litem to report the facts and to make a "custodial recommendation." There is nothing in G. L. c. 215, Section 56A, that specifically authorizes a Probate Court judge to request a guardian ad litem to make a custodial recommendation. On the other hand, there is no prohibition against it, provided the judge draws his own conclusions and understands that "the responsibility of deciding the case [is] his and not that of the guardian." Jones v. Jones, 349 Mass. 259, 265 (1965). The guardian, in his report, under the heading of "Conclusion and Recommendations," of which the material parts are outlined in the margin, [Note 6] stated that "[i]t is difficult to see how another

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change [in schools] would be in her [Nicole's] interest, particularly since she seems to have adjusted well in the Nance home," and then made the custodial recommendation that the judge adopted, with one minor exception. In making that recommendation, it is plain that the guardian ad litem did not take into consideration the law that is applicable to a change of custody matter. [Note 7]

In addition to reliance on the guardian ad litem's recommendation, the judge in his memorandum gave two reasons for his decision to change custody. He stated that "[two teachers of Nicole] feel that the child's continued involvement in the Needham schools is in her best interests." The judge, as quoted in the margin, [Note 8] also stated that he was impressed by Nicole's unique bond of friendship and happiness which she shares with her classmates and teachers at the

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Hillside School in Needham. It should be noted that in the very next sentence the judge stated, "[t]o be sure, the child has prospered academically, and has been happy and well-adjusted at each school she has attended." Of course, the judge's comment includes the school in Mason, Ohio, that the child was attending before she was whisked off a school bus by her father and brought back to Massachusetts.

In sum, there is nothing in the record that shows any relevant change in circumstances that would justify the transfer of custody ordered in this case. [Note 9] The fact that the mother did not seek permission to remove the child from the Commonwealth does not give the judge discretion to order a change in custody solely because of the failure to obtain consent. Hale v. Hale, 12 Mass. App. Ct. 812, 816 n.5 (1981).

The judgment is vacated. If the mother's present plans are to reside outside the Commonwealth with the child, a hearing must be held in regard to her complaint for modification in which she requested permission to remove the child from the Commonwealth. At the hearing the judge must consider the factors outlined in Hale v. Hale, at 815-819, in making the decision on the complaint.

So ordered.