E.K. vs. S.C.

BLAKE, J. In this custody modification, we consider the standard to be used when a noncustodial parent, who is living out-of-State, seeks custody of a child and permission to move the child out-of-State. Following a trial in the Probate and Family Court, an amended judgment issued awarding the father, E.K., sole legal and primary physical custody of the parties' minor child. That judgment also permitted the father to move the child to New Hampshire. [Note 1] The mother, S.C., appeals, claiming that the judge failed to enter findings of fact on a temporary order permitting the father to move the child out-of-State, erred in failing to reopen the evidence, and did not adequately consider the child's best interests. We affirm.

Background. We summarize the relevant facts as found by the judge after five days of trial, supplemented by uncontested evidence from the record. The parties are the never married parents of one child, born in December 2007. A judgment of paternity, which incorporated the parties' stipulation, entered on February 26, 2010. Among other things, that judgment awarded the parties shared legal custody and the mother primary physical custody of the child, and the father had parenting time one weeknight per week and every other weekend. It also included a prohibition on removing the child from the Commonwealth "for purposes of changing his domicile without the express written consent of the other or an order of the Essex Probate and Family Court." See G. L. c. 208, § 28. At that time, both parties lived in Massachusetts.

In March 2010, the father moved to New Hampshire. At the time of trial, he was living in Bedford, New Hampshire with his fiancée and her children, and was working in Boston. After the move, the father did not exercise his weeknight parenting time regularly but continued to see the child on weekends according to the schedule.

The child has significant educational and medical needs. In 2014, he was diagnosed with attention deficit/hyperactivity disorder (ADHD) and disruptive mood regulation. Beginning in October 2014, he was enrolled in a specialized educational program that provided emotional and educational support and a "home base" for the child each day. The child also had a pediatric psychologist and therapist, and was prescribed Tenex and

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Risperdal. He attended therapy regularly between September 2012 and June 2014, and then he restarted therapy in February 2016.

Beginning in or about November 2015, the mother's interactions with the school became problematic. She was disruptive at school events, made demands of the staff, and tried to remove the child from a classroom. On January 26, 2016, the father filed a complaint for modification, alleging that the mother was acting contrary to the health, welfare, and education of the minor child by unilaterally stopping the child's medication, withdrawing him from a special needs school program without the father's consent, and maintaining uninhabitable living conditions. On February 17, 2016, the mother filed an answer and counterclaim for modification, seeking sole legal custody.

Throughout 2016, the mother made numerous claims about the child's school, including that the child was being held illegally and that the program violated his rights. As an example of the mother's escalating conduct at the school, in March 2016, she became so upset and refused to abide by the principal's requests that the principal was forced to call 911 and the school was placed in lockdown. The mother agreed to leave the school after the police arrived, but later that day she brought the child to the police department and asked that an officer interview him regarding an incident at school. During the interview the child claimed he had been assaulted by a teacher two days earlier. After a police investigation, the allegation was determined to be unfounded.

In addition to her oppositional approach to the school, the mother was disorganized and frequently late -- the child was tardy or absent seventy-two times between kindergarten and second grade, and photographs of her home revealed "an inordinate amount of clutter and disorganization."

The Department of Children and Families (DCF) became involved with the family in 2008 and had intermittent contact with them over the years. As of January 2016, nine G. L. c. 119, § 51A, reports (51A reports) were filed involving the parents. The mother was the subject of five 51A reports; all were screened in for investigation, and three were supported for abuse. The father was the subject of four 51A reports; only one was screened in, but it was unsubstantiated after an investigation. [Note 2]

Eventually, the child's therapist informed the parents that she

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could no longer serve as his therapist. She explained that she believed that the mother was constantly trying to get the child to report negative things about his father, and that this was compromising her role as the child's therapist. [Note 3]

In March 2016, two more 51A reports were filed. One alleged that, while the child was in the hospital after threatening to harm himself, he said that his mother did not give him his ADHD medication on a regular basis and that he had missed school because he stayed up all night with his mother. The second report alleged that the mother sexually abused the child because he attempted to rub his buttocks on a teacher's legs and that he slept in the same bed as the mother. DCF supported the allegations of abuse by the mother and opened the case for services.

DCF concluded that the mother's mental health concerns interfered with her ability to parent the child. This was evidenced by the fact that she discussed topics with the child that were not age appropriate, and the child missed mental health appointments and failed to take prescribed medication. DCF also concluded that the parents were unable to coparent and recommended support services.

During the pendency of the case, the judge appointed a guardian ad litem (GAL) who filed two reports. In the first report, the GAL offered criticism of each parent, but found that the father set reasonable limits with the child and held him accountable for his behavior. The GAL also expressed concern that the father had not adjusted his work schedule to spend more time with the child. As to the mother, the GAL expressed concerns that the mother was sharing a bed with the child who was eight years of age, and that she failed to regularly administer the child's medication or bring him to medical appointments. He also expressed concern about the mother's persistent negative comments in the child's presence about the child's school and his father. Finally, he noted that the child was frequently late for school.

Ultimately, the GAL recommended that the mother retain primary physical custody of the child, "unless or until" the father provided the judge with a proposed plan for addressing the child's needs if the child were moved to New Hampshire. The GAL also

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recommended that, irrespective of who had physical custody of the child, the father should have legal custody and make all educational, health, and therapy decisions, with the mother having access to the information.

On February 1, 2017, shortly before the trial was to start, the GAL filed a second, updated report. The GAL reported that, since his first report, the father had moved in with his fiancée; she worked in the New Hampshire school system as a speech and language pathologist and was available to care for the child after school. In addition, the father provided the GAL with information about the school [Note 4] the child would attend in New Hampshire, and the names of mental health providers for the child.

The GAL also provided updated information about the child. In September and October 2016, the child was asked to leave two afterschool programs due to his aggressive behavior. He also noted that the child was no longer sleeping in the same bed as the mother, but his concerns about the mother's mental health remained unabated. The GAL reported that the mother continued to make unsubstantiated allegations about and disparage the father and the child's school, and she did not hold the child accountable for his behavior. The GAL recommended that the father be granted sole legal and physical custody of the child with permission to move him to New Hampshire.

The trial and posttrial motions. The trial was held over five nonconsecutive days between February 8 and May 22, 2017. [Note 5] On June 12, 2017, after the close of evidence, the father filed an ex parte motion for temporary orders pending judgment. He requested sole legal and physical custody, permission to move the child to New Hampshire, suspension of his child support obligation, and supervised parenting time for the mother. He alleged that since the close of the evidence, the mother had been involved in a number of incidents involving the child and the child's school; that she "demonstrated an inability to cooperate, engage in meaningful discussion, or listen to others"; and that DCF was involved.

The judge did not act on the motion ex parte. Rather, she scheduled the motion for a hearing on short notice. Following that hearing, at which both parties appeared with counsel, the judge granted the father temporary physical custody and authorized him

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to remove the child to New Hampshire and enroll him in school. The judge also established a parenting schedule for the mother. She did not change legal custody at that time, nor did she order supervised parenting time. The judge did not issue findings of fact contemporaneously with the temporary order. The mother filed a petition for interlocutory relief, pursuant to G. L. c. 231, § 118, that was dismissed with a directive that the mother challenge the temporary order in her appeal from a final judgment.

On August 1, 2017, the mother filed motions to reconsider the temporary order, [Note 6] reopen evidence, and impound and stay the temporary order. After a hearing, the motions were denied. Thereafter, on October 17, 2017, the modification judgment issued along with findings of fact and a rationale, effective as of May 22, 2017. In addition, the judge issued findings of fact and a rationale on the temporary order, dated September 22, 2017, as of August 17, 2017.

Custody determination. As in any modification proceeding, the father must first establish that a material and substantial change in circumstance has occurred to warrant a change in custody, and that the change is in the child's best interests. Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 777-778 (2005). "[T]he best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met." Charara v. Yatim, 78 Mass. App. Ct. 325, 336 (2010). "In custody matters, the touchstone inquiry [is] . . . what is best for the child, and [t]he determination of which parent will promote a child's best interests rests within the discretion of the judge . . . [whose] findings . . . must stand unless they are plainly wrong" (quotations omitted). Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019), quoting Hunter v. Rose, 463 Mass. 488, 494 (2012). "The judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit."

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Malachi M., supra, quoting Smith v. McDonald, 458 Mass. 540, 547 (2010).

"We review the judgment and the subsidiary findings of fact for abuse of discretion or other error of law." Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). "A trial judge's findings of fact will not be set aside unless clearly erroneous." Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). The reviewing court will give due regard to the judge's assessment and determination of credibility of the witnesses and the weight of the evidence. R.D. v. A.H., 454 Mass. 706, 718-719 (2009). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, the judge issued detailed findings of fact that are amply supported by the record, all of which support her conclusion that there was a material and substantial change in circumstance that warranted a change in custody. The record is replete with examples of the mother's destructive relationship with the child's school and treatment professionals. This is especially important because of the child's emotional and educational needs. The mother was unable to act in the best interests of the child as demonstrated by her decision to take the child out of his specialized education program; her actions that caused the resignation of the child's therapist; her failure to administer the child's medication; the child's repeated and unnecessary hospital visits; the tardiness of the child; her inappropriate parenting decisions; and her use of DCF to retaliate against the father. Notably, the mother does not allege that any of the judge's findings are clearly erroneous.

By contrast, the father showed a willingness and ability to respond to the child's needs. He heeded the advice of medical and educational providers and provided a more stable home for the child. The evidence supported the conclusion that the father is the parent who is best able to put the complicated needs of the child first. We discern no abuse of discretion in granting the father primary physical custody and legal custody of the child. See Hunter, 463 Mass. at 494, quoting G. L. c. 208, § 31 ("The judge shall consider 'whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health'"); Macri v. Macri, 96 Mass. App. Ct. 362, 369-370

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(2019); O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 155-156 (2003) ("in the face of 'overwhelming undisputed evidence of hostility between the parents and their disagreement on matters pertaining to the child,' the child's best interests, always the paramount concern, are likely better served by ending the joint custodial arrangement" [citation omitted]).

Removal and best interests. As the Supreme Judicial Court (SJC) has held, when deciding whether removal of a child out-of-State should be permitted, the particular criteria depend on whether physical custody of the child is sole or shared. Miller v. Miller, 478 Mass. 642, 643 (2018). Where the parent seeking removal has sole physical custody, the request is analyzed using the real advantage standard of Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985). Where the parents share physical custody, a parent's removal request is analyzed using the best interests of the child standard pursuant to Mason v. Coleman, 447 Mass. 177, 184-186 (2006).

Where no prior custody order existed at the time of the proceedings, the SJC held "that the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties' respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard." Miller, 478 at 643.

Unlike Yannas, Mason, and Miller, here, the judge transferred physical custody from the mother to the father, who has been living out-of-State for many years. Thus, having determined that there was no error in the judge's custody decision, we must determine what standard applies to the father's request to move the child to New Hampshire. Because Yannas is inapplicable in these circumstances, the judge must first conduct an analysis that includes consideration of whether the parent's initial move was motivated by a desire to deprive the other parent of time with the child, and the current advantages of the out-of-State residence to the parent seeking custody. As in Yannas, however, such an analysis includes, collectively, the soundness of the reasons for the move, the presence or absence of a motive to deprive the other parent of time with the child, and the advantage to the parent of the move. See Yannas, 395 Mass. at 711-712. The analysis differs from Yannas in two ways. First, the judge must assess the intent of the noncustodial parent's initial move out-of-State. The judge must find that the intent of the move was not to interfere with the in-State parent's relationship with the child, and was not designed

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to establish a basis to request a change in physical custody. [Note 7] If the judge so finds, the second inquiry is whether the out-of-State parent is rooted in the community in which that parent seeks to move the child. Assuming the judge makes such a finding, this may be considered a real advantage to that parent. The judge may consider, among factors, the out-of-State parent's employment, financial situation, housing, family composition, and the social and emotional benefits in that parent's current circumstances. Thus, once the out-of-State parent has demonstrated a "good, sincere reason," id. at 11, for the move, the best interest of the child analysis begins and includes the impact of the move on each parent and the resultant effect on the child.

The judge, relying on Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131 (2009), concluded that the father's removal request must be supported by "'compelling' evidence that moving to New Hampshire will provide 'distinct advantages' to [the child] such that relocation is in his best interest." Finding that the facts here were analogous to those in Prenaveau, the judge found that there was "compelling evidence that the move will provide distinct advantages to [the child] such that the relocation is in his best interest." In addressing the impact of the move, the judge acknowledged that moving may cause the child "some distress and anxiety in the short-term," but she also found that the father was well equipped and committed to ensuring a successful transition. And, she reasoned, because the child will be living in southern New Hampshire, he would continue to see the mother on approximately the same schedule that he previously saw the father. Here, Prenaveau has limited application because in Prenaveau the parties shared legal and physical custody of the children prior to the husband's request to remove them to his new home in New Hampshire. In fact, there are important differences that call for a different analysis. And, ultimately consideration of the best interests of the child is paramount. Nonetheless, the judge's findings, amply supported by the record, meet the standard that we set forth herein.

We review a judge's decision regarding the removal of a child out-of-State for "abuse of discretion or other error of law," accepting the judge's findings unless shown to be clearly

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erroneous. Murray, 87 Mass. App. Ct. at 148. The judge found that the father moved to New Hampshire long before any custody modification proceeding was contemplated. At the time of trial, he was firmly rooted in the community, living with his fiancée and her children. He had a strong job prospect in New Hampshire that would afford him more free time with the child. Taken in its totality, the father's decision to move to and remain in New Hampshire provided him with a real advantage. See Murphy v. Murphy, 82 Mass. App. Ct. 186, 190-191 (2012) (real advantage to parent seeking to be closer to family and job opportunity); Woodside v. Woodside, 79 Mass. App. Ct. 713, 719 (2011) (parent not motivated by intent to deprive other parent of relationship with children); Altomare, 77 Mass. App. Ct. at 607-608 (emotional support is sincere reason for move).

Indeed, this analysis is not dissimilar to parents who share physical custody when one seeks to remove the child to another State, because "[t]he advantage to the . . . parent [already living out-of-State] becomes merely a relevant factor in the over-all inquiry of what is in the child's best interests." Miller, 478 Mass. at 651, quoting Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 776 (2006). And, "[t]he importance to the child[] of one parent's advantage in relocating outside the Commonwealth is greatly reduced." Miller, supra, quoting Mason, 447 Mass. at 185. The same holds true here. See Malachi M., 483 Mass. at 740, quoting Smith, 458 Mass. at 547 ("The judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit").

Turning to the best interest of the child analysis, the judge's findings on the custody determination apply with equal force. The factors to be considered include "(1) whether the quality of the child[]'s [life] will be improved, including any improvement that 'may flow from an improvement in the quality of the custodial parent's life'; (2) any possible 'adverse effect of the elimination or curtailment of the child[]'s association with the noncustodial parent'; (3) 'the extent to which moving or not moving will affect the [child's] emotional, physical, or developmental needs'; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent." Murray, 87 Mass. App. Ct. at 150, quoting Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006). The judge's findings address all of these factors, either explicitly or implicitly, and are supported by the record.

The mother's objections are grounded in the weight the judge

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gave the evidence and the credibility determinations that she made in balancing the benefits of the move against the disruption in the child's life. [Note 8] "We do not substitute our judgment of the evidence for the subsidiary findings of the judge absent clear error . . . , or a 'firm conviction that a mistake has been committed.'" Mason, 447 Mass. at 186, quoting New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). Moreover, the touchstone inquiry in any child custody dispute is the best interests of the child. As the judge found, a transfer of custody of the child to the father is in the child's best interests. Accordingly, we will not disturb the judge's ultimate conclusion that the father had the superior ability to address the child's significant needs.

Procedural issues. The mother contends that the judge erred in issuing temporary orders that changed custody of the child without contemporaneous findings of fact, and it was further improper to do so on a hearing that was scheduled on a short order of notice. [Note 9] Pursuant to G. L. c. 208, § 28A, [Note 10] the judge was required to set forth the "injury, harm or damage that might reasonably be expected to occur if relief pending a judgment of modification is not granted." Here, the findings issued four months after the temporary order entered. The better practice would have been to issue them contemporaneously, or, as soon as possible following entry of the temporary order. However, time requirements for the issuance of statutorily required findings have been largely viewed as regulatory. See Warman v. Warman, 21 Mass. App. Ct. 80,

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82-83 (1985). A judge's failure to abide by the statutory directive for issuing specific findings of fact will not result in a reversal of the order where "remand in those circumstances would be for purely technical rather than substantive reasons." Id. at 83. See Zatsky v. Zatsky, 36 Mass. App. Ct. 7, 11-12 (1994), citing Warman, supra. The judge noted that these findings were made as a result of the evidence at trial, and not based on the information contained in the father's posttrial motions for temporary orders. Because the mother is unable to demonstrate prejudice from the delayed findings, any remand would be purely technical as the underlying findings of fact and rationale support the change in custody. But cf. Rosenthal v. Maney, 51 Mass. App. Ct. 257, 264-265 (2001).

Next, the mother argues the judge abused her discretion in denying her motion to reopen the evidence in order to consider evidence related to the child's transition into the father's home in New Hampshire. See Dominick v. Dominick, 18 Mass. App. Ct. 85, 90 & n.4 (1984) (whether to reopen trial for new evidence is left to discretion of trial judge). The mother bears the burden of showing that the judge committed "a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L., 470 Mass. at 185 n.27. The mother has not met her burden. She argues that new facts relative to the child's well-being in the father's care demonstrated that, in fact, the order granting the father physical custody, and permitting him to relocate the child, had not been in the child's best interests. We conclude that the new evidence on which the mother focuses is merely support for the fact, which the judge anticipated and addressed in her findings and rationale, that there would likely be a period of adjustment following the child's move to the father's home. Moreover, the motion was filed shortly after the move. Cf. Loebel v. Loebel, 77 Mass. App. Ct. 740, 747 (2010) ("We agree with the mother that it was an abuse of discretion to deny her an opportunity to present new evidence on remand . . . two years after the original order"). Finally, child custody determinations remain modifiable only based on a complaint showing a substantial and material change of circumstances, and a parent cannot avoid that standard by filing posttrial motions alleging new facts. See R.S. v. M.P., 72 Mass. App. Ct. 798, 803 (2008) ("The requirement of a change in circumstances is grounded in the interests of finality of judgments"). Cf. Adoption of Scott,

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59 Mass. App. Ct. 274, 277 (2003) ("in the absence of extraordinary circumstances, not here present, the mother may not rely on posttrial changes in a proposed plan for the child to reopen the proceedings even if they precede the entry of the decree"). There was no error. [Note 11]

Amended judgment affirmed.