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439 Mass. 834, *; 792 N.E.2d 635, **;
2003 Mass. LEXIS 574, ***
Custody of KALI.
SJC-08940.
SUPREME JUDICIAL COURT OF MASSACHUSETTS
439 Mass. 834; 792 N.E.2d 635; 2003 Mass. LEXIS 574
March 6, 2003, Argued
August 1, 2003, Decided
PRIOR HISTORY: [***1] Complaint to establish paternity filed in the
Franklin Division of the Probate and Family Court Department on June
14, 2000. The case was heard by Geoffrey A. Wilson, J. The Supreme
Judicial Court granted an application for direct appellate review.
DISPOSITION: Judgment affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant father sought review of a decision of
the Franklin Division of the Probate and Family Court Department
(Massachusetts), which awarded sole legal and primary physical custody
of the parties' daughter to appellee mother, with visitation and
partial custody awarded to the father. The matter arose out of
paternity and custody proceedings between the unmarried parents.
OVERVIEW: The parents lived together, unmarried, but after the birth
of their child, their relationship deteriorated to the point where the
mother and daughter moved away. They returned during a short period of
reconciliation, but thereafter relocated. The parents worked out a
custody arrangement, which indicated both of their interests and love
for their daughter. After the relationship between the parents ended,
the father commenced his paternity and custody action, which resulted
in a custody award to the mother. On appeal, the court declined to
consider whether the trial court's decision violated the prohibition
against gender discrimination. It also found that employing the "best
interests of the child" standard rather than the "substantial change
in circumstances" standard was proper, as the father had waived his
argument that the standard under Mass. Gen. Laws ch. 209C, § 20 was
applicable. The court found that the award of custody, made under
Mass. Gen. Laws ch. 209C, § 10(a), was based on the appropriate
standard as well as on due consideration of the three required factors
of § 10(a) and accordingly, did not constitute an abuse of discretion.
OUTCOME: The court affirmed the award of the trial court.
CORE TERMS: custody, probate, weekend, caregiver, spend, temporary
order, legal custody, parental, stability, custodial, provider,
daughter, primary caretaker, substantial change, status quo,
caretaker, modification, satisfactory, continuity, parenting,
educational, visitation, paternity, vacation, guardian, attuned,
spent, best interest, parental relationship, proportion
LexisNexis(R) Headnotes Hide Headnotes
Family Law > Child Custody > Enforcement & Modification
Family Law > Child Custody > Jurisdiction
HN1 Mass. Gen. Laws ch. 209C, § 20 gives a Probate Court jurisdiction
to modify an existing judgment for support, custody, or visitation.
Such a modification should be made only if a substantial change in the
circumstances of the parties or the child has occurred. More Like
This Headnote
Family Law > Child Custody > Awards
HN2 Probate judges may not impermissibly take the gender of a parent
into account when making their custody determinations. More Like This
Headnote
Family Law > Child Custody > Awards
HN3 See Mass. Gen. Laws ch. 209C, § 10(c).
Family Law > Child Custody > Awards
HN4 Mass. Gen. Laws ch. 209C, § 10(a) gives a probate judge the power
to award custody of nonmarital children to the mother or the father or
to them jointly as may be appropriate in the best interests of the
child. In reaching a decision on custody, § 10(a) further provides
that the probate judge "shall" (1) preserve "to the extent possible"
the relationship between the child and the primary caregiver; (2)
consider where and with whom the child has resided within the six
months immediately preceding the action; and (3) consider whether
either parent has established a "personal and parental relationship"
with or exercised "parental responsibility" over the child. More Like
This Headnote | Shepardize: Restrict By Headnote
Family Law > Child Custody > Awards
HN5 As a remedy for the perceived vagueness in the "best interests of
the child" custody standard and for its apparent amenability to
inconsistent application, Legislatures, courts, and commentators have
adopted or proposed a number of constraints on judicial discretion or,
in the alternative, specific criteria that a judge must take into
account when ruling on the issue of custody. Some of these constraints
have come in the form of irrebuttable presumptions. These efforts also
reflect the view that it is in the "best interests of the child" to
preserve the current placement with a parent, if it is a satisfactory
one, and that stability and continuity with the child's primary
caregiver is itself an important factor in a child's successful
upbringing. More Like This Headnote | Shepardize: Restrict By
Headnote
Family Law > Child Custody > Awards
HN6 Mass. Gen. Laws ch. 209C, § 10(a) gives direction to a 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. It cautions against rearranging a child's
living arrangements in an attempt to achieve some optimum from all the
available permutations and combinations of custody and visitation,
when it is generally wiser and safer not to meddle in arrangements
that are already serving the child's needs. If the parenting
arrangement in which a child has lived is satisfactory and is
reasonably capable of preservation, it is ordinarily in the child's
best interests to maintain that arrangement, and contrary to the
child's best interest to disrupt it. Stability is itself of enormous
benefit to a child, and any unnecessary tampering with the status quo
simply increases the risk of harm to the child. More Like This
Headnote
Family Law > Child Custody > Awards
HN7 The required considerations of the second paragraph of Mass. Gen.
Laws ch. 209C, § 10(a ) neither replace the "best interests of the
child" standard nor limit the factors that a judge may consider in
determining what custodial arrangements are in the best interests of
the child. Nor do they create a presumption that the caretaker with
whom the child is primarily residing will be awarded permanent
custody. There may be serious shortcomings in the primary caretaker's
parenting to date, or evidence that a previously exemplary caretaker
will not be able to continue providing adequate care. Or, even
assuming that the primary caretaker has been providing good care, and
all indications are that that parent would continue to do so, it is
possible that the other parent may offer some extraordinary advantage
to the child that makes the disruption in the child's life worth the
risk. In most cases, however, if the child has been living with one
parent for some time, the child's needs are being adequately met under
that parent's care, and that parent is capable of continuing to care
for the child, it is not in the child's best interests to disrupt that
successful arrangement. Rather, it is in the child's best interests to
preserve it. Belief that the other parent might be a little better in
some areas ought not suffice to disrupt a child's satisfactory home
life with the caretaker parent. More Like This Headnote | Shepardize:
Restrict By Headnote
Family Law > Child Custody > Awards
HN8 The three requirements set forth in the second paragraph of Mass.
Gen. Laws ch. 209C, § 10(a) must be carefully considered by a judge in
reaching a decision regarding custody. Moreover, merely considering
these requirements at the end stages of the custody proceedings is not
enough. In order to provide a child with the benefits of stability and
continuity, these principles also need to be applied during the
pendency of the proceedings. When the child has been living with one
parent, the judge's initial inquiry on any motion for a temporary
order of custody must be whether there would be any harm to the child
in maintaining that status quo pending the outcome of the case. By
definition, the significant benefits of maintaining the status quo,
and the option of preserving those benefits, may be irreparably lost
if the status quo is disrupted at the outset of the proceedings. More
Like This Headnote
Family Law > Child Custody > Awards
Civil Procedure > Appeals > Standards of Review > Plain Error
HN9 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. However, an
appellate court will not sustain an award of custody unless all
relevant factors in determining the best interests of the child have
been weighed. More Like This Headnote | Shepardize: Restrict By
Headnote
Family Law > Child Custody > Awards
HN10 In awarding primary custody between two working parents, day care
is a fact of life in such circumstances and ought not be used as the
measure of a parent's ability or commitment to provide a protective,
healthy, and positive environment for the child. More Like This
Headnote
Hide Headnotes / Syllabus
HEADNOTES: Minor, Custody. Parent and Child, Custody. Probate Court,
Custody of child.
COUNSEL: Wendy H. Sibbison (John C. Gates with her) for the father.
Janet Hetherwick Pumphrey for the mother.
Thomas F. Reilly, Attorney General, & William E. Reynolds, Assistant
Attorney General, for Department of Social Services, submitted a
brief.
JUDGES: Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin,
Sosman, & Cordy, JJ.
OPINIONBY: CORDY
OPINION: [*834] [**636] CORDY, J.
This case arises from a custody dispute between the unmarried parents
of a child whom we shall call Kali. On July 12, 2002, a judge of the
Probate and Family Court awarded sole legal and primary physical
custody of Kali to her mother, and visitation and partial custody to
her father. The father appealed [*835] and this court granted his
application for direct appellate review. We affirm the judgment.
1. Background. We summarize the findings of the probate judge. The
mother and the father began dating in 1994 and the next year began
living together in the father's home in Conway, [***2]
Massachusetts. In January, 1998, the mother gave birth to Kali. n1 The
relationship between the father and the mother (both of whom worked)
rapidly deteriorated, in part because of disputes regarding Kali's
care and the father's often extended work schedule. As a result, Kali
and her mother moved to her mother's family home in Montague in the
spring of 1998. They returned to the father's home later that year
after the mother and the father reconciled, but moved back to Montague
in January, 1999. In March, 1999, the mother moved to Ledyard,
Connecticut, to work in Groton for an employer who also had operations
in Springfield. She initially anticipated that she would be
transferred back to Springfield, which is located near Montague. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 The father's paternity of Kali was not adjudicated by a court until
he filed a complaint to establish paternity and obtain legal custody
of Kali, which commenced this action.
n2 The parties and the judge each present a different chronology of
these events. The judge found that the mother began working in
Connecticut in March, 1999, and commuted from Montague to Groton for
one year before permanently relocating to Connecticut. According to
the father, the mother began working in the Ledyard, Connecticut,
office in March, 1999, and immediately rented an apartment in Ledyard.
The mother claimed that she began working in Connecticut in 1998,
commuting to Connecticut until March, 1999, at which point she moved
there permanently. Because the chronology on this point found by the
probate judge does not fit logically with the rest of his findings, we
accept that the mother relocated to Connecticut in March, 1999.
Whether she commuted to Connecticut before that date is of no
consequence to the legal questions at hand.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***3]
When the mother moved to Connecticut, both parents agreed that it
would be best for Kali to live with her father at his home in Conway
during the week and spend weekends with her mother. During her
weekdays in Conway, Kali was principally in the care of a day care
provider whom the mother had previously selected. Typically, Kali
would be awakened by her father at approximately 5 A.M. and taken to
the day care provider's home by 5:45 A.M. The father then left for his
job as a mason, which required him to travel throughout western
Massachusetts [*836] and occasionally Vermont. He would pick Kali up
between 4:15 and 5 P.M. and spend each evening with her.
On the weekends, Kali visited her mother in Connecticut or the mother
returned to Massachusetts to spend time with Kali either in Montague
or at the father's home. As the father and the mother still maintained
their relationship, the father often joined them on weekends. Although
the mother claims that she paid for Kali's [**637] care during their
weekends together and contributed $ 100 a week toward Kali's
Massachusetts expenses, the father denies that the latter contribution
was ever made, and the judge made no findings on this [***4] point.
These custodial arrangements continued until June, 2000, when the
relationship between the father and the mother ended. The father then
instituted the present action to establish paternity and obtain legal
custody of Kali. In August, 2000, the probate judge adjudicated the
father's paternity, and entered a temporary order awarding legal and
physical custody of Kali jointly between the mother and the father,
with each to have physical custody of Kali on alternating weeks. The
judge also appointed a guardian ad litem (guardian) to observe Kali in
each parental setting. Thereafter, during the weeks spent in
Massachusetts with her father, Kali's daily schedule was the same as
it had been during the previous year. During the weeks Kali spent with
her mother in Connecticut, Kali was awakened at approximately 5:45
A.M. in order to be at day care by 6:45 A.M., where she would stay
until 3:30 or 4 P.M. when her mother finished work.
Trial commenced seventeen months later, in January, 2002. The
witnesses included the guardian, the day care provider, a friend of
the father, family, and a clinical psychologist. The guardian
testified that the parties should share legal custody [***5] and that
primary physical custody should reside with the father. In July, 2002,
the judge entered his final order, supported by findings of fact and
conclusions of law. The judge awarded legal custody of Kali to the
mother, and divided physical custody between the father and the mother
corresponding with the school [*837] year and vacations. n3 During
the school year, Kali was to reside principally with her mother, with
the father having custody of her three weekends a month. During the
summer, Kali was to reside principally with her father, with the
mother having custody every other weekend. n4 School vacation periods
were to be split between the mother and the father. In addition, the
father was to have unimpeded access to Kali's educational and health
records, and was to be informed at least one week before, and have
written input into, any major nonemergency decision with respect to
her upbringing.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 The order was stayed by the Appeals Court pending the resolution of
this appeal or Kali's entrance into kindergarten this fall, whichever
occurs first. It appears that, at the present time, Kali is still
living with each parent on alternating weeks. [***6]
n4 Each party was also able to designate an uninterrupted period of up
to two weeks to spend with Kali during the summer.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The judge's custody award was based on his conclusion that these
arrangements were in the best interests of the child. This conclusion
was based, in turn, on a number of findings, including, inter alia,
that the mother and the father are not able to make shared decisions
relative to their daughter's welfare, and joint legal custody would
not be in Kali's interest; n5 that the mother provides well for Kali's
physical needs, is concerned with her health and educational issues,
and is the one who "preoccupies herself" with Kali's care regarding
clothing, hygiene, doctor's appointments, and child care providers;
[**638] that the father, while clearly fond of his daughter, and
engaged in a positive relationship with her, does not appear to be
"overly concerned" about Kali's physical needs "beyond the basics,"
and has "minimized" her medical needs and her need for medical care in
general; that the father works long hours often involving overtime,
resulting in Kali's spending most [***7] of her time during the week
in day care; that the mother has more flexible hours and is able to
spend more time with Kali during the weekdays; that the mother is more
"attuned" to Kali's medical, educational, and daily needs and is
better able to [*838] provide for Kali's welfare and physical needs
during the week; that the father is more "attuned" to many of the
activities that he and Kali can pursue together when time constraints
because of his work schedule and her school do not interfere; and that
it is important that Kali be able to spend as much time as possible
with her father on weekends, holidays, and during school vacations to
continue to foster their close and positive relationship.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 The parties do not contest the judge's conclusion that joint legal
custody was not appropriate in light of the past inability of the
parents to communicate productively about and jointly work together in
making major decisions concerning Kali's well being. Rolde v. Rolde,
12 Mass.App.Ct. 398, 404-405, 425 N.E.2d 388 (1981). See G.L. c. 209C,
§ 10 (a ).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***8]
2. The father's claims. On appeal, the father claims that (1) the
decision of the probate judge was in error because it violated the
prohibition against gender discrimination contained in art. 1 of the
Massachusetts Declaration of Rights, as amended by art. 106 of the
Amendments (prohibiting discrimination based on sex); (2) the probate
judge applied the wrong standard ("best interests of the child") when
he should have applied the "substantial change in circumstances"
standard applicable to custody modification proceedings brought under
G.L. c. 209C, § 20; n6 and (3) the probate judge failed to acknowledge
adequately or consider adequately the standards for awarding custody
to unmarried parents set forth in G.L. c. 209C, § 10 (a ).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 General Laws c. 209C, § 20, HN1gives the Probate Court jurisdiction
to modify an existing judgment for support, custody, or visitation.
Such a modification should be made only if "a substantial change in
the circumstances of the parties or the child has occurred." Id.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***9]
a. Claims under the Constitution and G.L. c. 209C, § 20. We can
readily dispose of two of the father's three claims for relief. With
respect to his constitutional claim, the father does little more than
cite the Massachusetts Constitution and make an assertion that the
probate judge's order would have been different had the genders of the
parties been reversed. This claim does not rise to the level of
appellate argument, and we decline to consider it. See Mass. R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975) (appellant's arguments
shall contain "citations to the authorities, statutes and parts of the
record relied on"); Adoption of Kimberly, 414 Mass. 526, 536-537, 609
N.E.2d 73 (1993) (three-sentence argument did not assist court with
meaningful citation of authority and did not rise to level of
acceptable appellate [*839] argument). n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 While we do not consider the father's constitutional claim of sex
discrimination, HN2probate judges may not, of course, impermissibly
take the gender of a parent into account when making their
determinations. See Silvia v. Silvia, 9 Mass.App.Ct. 339, 340-342, 400
N.E.2d 1330 (1980).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***10]
We also decline to consider the father's claim that the probate judge
should have applied the "substantial change in the circumstances"
standard applicable to modification actions brought under G.L. c.
209C, § 20, rather than the "best interests of the child" standard
applicable to custody determinations under G.L. c. 209C, § 10 (a). The
premise of the father's claim is that G.L. c. 209C, § 10 (c), operated
to give him sole legal custody of Kali when the mother moved to
Connecticut [**639] and "relinquished" Kali's care to the father, n8
and, consequently, any change in Kali's legal custody would constitute
a modification under § 20. While the mother disputes the father's
contention that she "relinquished" the care of Kali within the meaning
of § 10 (c), it is not necessary for us to consider the merits of
their various points. It is clear from the record that the case in the
Probate Court was tried under G.L. c. 209C, § 10 (a), not G.L. c.
209C, § 20, and on the theory that, prior to the trial proceedings,
the mother and the father had [***11] joint custody of Kali. The
father's arguments that G.L. c. 209C, § 10 (c), applies, that he was
the sole legal custodian at the time the proceedings commenced, and
that that status cannot be modified in the absence of a "substantial
change in the circumstances" (as required by § 20) were not made to
the probate judge and are waived. See Baccanti v. Morton, 434 Mass.
787, 803, 752 N.E.2d 718 (2001), and cases cited. While this court
has, in exceptional cases, exercised its discretion to consider a
claim not raised in the trial court where the opposing party would not
be prejudiced by such consideration and consideration was necessary in
order to prevent injustice or resolve an important question of law,
see Cruz v. Commissioner of Pub. Welfare, 395 Mass. 107, 111-112, 478
N.E.2d 1262 (1985), those circumstances are not present in this case.
See Commonwealth v. Fernette, 398 Mass. 658, 667, 500 N.E.2d 1290
(1986), quoting Santa Maria v. Trotto, 297 Mass. 442, 447, [*840] 9
N.E.2d 540 (1937) ("theory of law on which by assent a case is tried
cannot be disregarded when the case comes before an [***12] appellate
court for review").
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 General Laws c. 209C, § 10 (c), states that HN3"if either parent is
dead, unfit or unavailable or relinquishes care of the child or
abandons the child and the other parent is fit to have custody, that
parent shall be entitled to custody."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -b. The
requirements of G.L. c. 209C, § 10 ( a) . We turn now to the father's
sole preserved claim on appeal, that the probate judge failed to
consider adequately the statutory factors set forth in G.L. c. 209C, §
10(a) .
Section 10(a ) HN4gives a probate judge the power to award custody of
nonmarital children "to the mother or the father or to them jointly
... as may be appropriate in the best interests of the child." G.L. c.
209C, § 10(a), first par. In reaching a decision on custody, the
statute further provides that the probate judge "shall" (1) preserve
"to the extent possible" the relationship between [***13] the child
and the primary caregiver; (2) consider "where and with whom the child
has resided within the six months immediately preceding" the action;
and (3) consider whether either parent has established a "personal and
parental relationship" with or exercised "parental responsibility"
over the child. G.L. c. 209C, § 10(a), second par. This case raises
the question of the relationship between the "best interests of the
child" standard set forth in the first paragraph of the statute and
the three requirements set forth in the second. To resolve this
question, we examine the origin of the "best interests of the child"
standard, whether that standard has been modified by the enactment of
G.L. c. 209C, and the judge's application of the standard in the
present case.
In custody matters, the touchstone inquiry of what is "best for the
child" is firmly rooted in American history, dating back to the
Nineteenth Century. See generally Mercer, A Content Analysis of
Judicial Decision-Making--How Judges Use the Primary Caretaker
Standard to Make a Custody Determination, 5 Wm. & Mary J. of Women &
the L. 1, 13-32 (1998) (describing evolution of Anglo- American
[***14] jurisprudence since Seventeenth Century). [**640] This
legal principle replaced the notion that children were the property of
their parents, and instructed courts to view children as individuals
with interests independent of their parents. See id. at 21-29. The
"best interests" standard appeared in our case law at least as early
as 1865, in Wardwell v. Wardwell, 91 Mass. 518, 9 Allen 518, 522
(1865), in which the court held that [*841] a judge should not
follow a father's wish regarding the guardianship of his son if
custody by the proposed guardian would not be in the child's "best
interests." It has been adhered to ever since. See, e.g., Blixt v.
Blixt, 437 Mass. 649, 657, 774 N.E.2d 1052 (2002), cert. denied, 537
U.S. 1189, 154 L. Ed. 2d 1022, 123 S. Ct. 1259 (2003) (best interests
standard "has long been used in Massachusetts to decide issues of
custody and visitation"); Yannas v. Frondistou-Yannas, 395 Mass. 704,
710, 481 N.E.2d 1153 (1985) ("best interests of the children always
remain the paramount concern"); Surrender of Minor Children, 344 Mass.
230, 234, 181 N.E.2d 836 (1962), quoting Erickson v. Raspperry, 320
Mass. 333, 335, 69 N.E.2d 474 (1946) [***15] ("most fundamental
[principle] is that the paramount issue is the welfare of the child");
DeFerrari v. DeFerrari, 220 Mass. 38, 41, 107 N.E. 404 (1914) (custody
award is subject to revision "as the best interests of the child may
demand"). See also Mercer, supra at 13 (calling best interests
standard "prevalent ethical principle governing child custody
decisions today"); Catania, Accounting to Ourselves for Ourselves: An
Analysis of Adjudication in the Resolution of Child Custody Disputes,
71 Neb. L.Rev. 1228, 1244 (1992) ("In the overwhelming majority of
jurisdictions in the United States, the guiding principle of law in
child custody disputes ... is the 'Best Interests of the Child'
standard").
In spite of its widespread use as an appropriate standard for custody
determinations, the "best interests of the child" formulation has been
criticized by a number of commentators, who contend that the
open-endedness of the standard leads either to an inconsistency of
results or to the systematic imposition by courts of unnamed
prejudices regarding what outcomes represent a child's best interests.
See, e.g., Crippen, Stumbling Beyond Best Interests of the Child:
[***16] Reexamining Child Custody Standard-Setting in the Wake of
Minnesota's Four Year Experiment with the Primary Caretaker
Preference, 75 Minn. L.Rev. 427, 499-500 (1990) (best interests
standard "risks unwise results, stimulates litigation, permits
manipulation and abuse, and allows a level of judicial discretion that
is difficult to reconcile with an historic commitment to the rule of
law" [footnotes omitted]); Elster, Solomonic Judgments: Against the
Best Interest of the Child, 54 U. Chi. L.Rev. 1, 16 (1987) ("best
interest principle is usually indeterminate when both [*842] parents
pass the threshold of absolute fitness"); Glendon, Fixed Rules and
Discretion in Contemporary Family Law and Succession Law, 60 Tul.
L.Rev. 1165, 1181 (1986) ("'best interests' standard is a prime
example of the futility of attempting to achieve perfect,
individualized justice by reposing discretion in a judge... Its
vagueness provides maximum incentive to those who are inclined to
wrangle over custody").
HN5As a remedy for the perceived vagueness in the standard and for its
apparent amenability to inconsistent application, Legislatures,
courts, and commentators have adopted [***17] or proposed a number of
constraints on judicial discretion or, in the alternative, specific
criteria that a judge must take into account when ruling on the issue
of custody. Some of these constraints have come in the form of
irrebuttable presumptions, see, e.g., Garska v. McCoy, 167 W. Va. 59,
69, 70, 278 S.E.2d 357 (1981) [**641] (primary caretaker proving to
be fit parent of child of "tender years" must be awarded custody);
others have come in the form of legislatively required considerations.
See, e.g., Or.Rev.Stat. § 107.137 (2001).
These efforts also reflect the view that it is in the "best interests
of the child" to preserve the current placement with a parent, if it
is a satisfactory one, and that stability and continuity with the
child's primary caregiver is itself an important factor in a child's
successful upbringing. See, e.g., Catania, supra at 1260-1261
(describing primary caretaker presumption as "fair," "gender-neutral,"
"creating a legal norm that encourages nurturing behavior," and
"serving as a concrete model for the kind of fiduciary conduct that
members of a reordering family should continue to expect from one
another"). [***18] Roen v. Roen, 438 N.W.2d 170, 174 (N.D.1989)
("Continuity in a child's relationship with the closest, nurturing
parent is also a very important aspect of stability"); Davis v. Davis,
749 P.2d 647, 648 (Utah 1988) ("considerable weight should be given to
which parent has been the child's primary caregiver"). Echoing this
view, the American Law Institute's Principles of the Law of Family
Dissolution (2002) (ALI Principles) state that a judge "should"
allocate custody in proportion to the amount of time [*843] each
parent previously spent providing care, subject to eight listed
exceptions. ALI Principles, supra at § 2.08(1). n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 Section 2.08(1) of the American Law Institute's Principles of the
Law of Family Dissolution (2002) (ALI Principles) states, in pertinent
part, that custody should be awarded "so that the proportion of
custodial time the child spends with each parent approximates the
proportion of time each parent spent performing caretaking functions
for the child prior to the parents' separation or ... before the
filing of the action." The exceptions to this guideline are (a) that
the award of custody should align with any "uniform rule of statewide
application"; (b) that the award should respect the "firm and
reasonable preferences" of a child of a certain (undefined) age; (c)
that siblings should remain together if "necessary to their welfare";
(d) that the award should reflect any "gross disparity" in the child's
attachment to the parents or in the parents' abilities to "meet the
child's needs"; (e) that the award should reflect any prior agreement
between the parties; (f) that the award should not create an
"extremely impractical" custodial situation; (g) that the award should
address a parent's decision to relocate to a distance away; and (h)
that the award should "avoid substantial and almost certain harm to
the child."
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***19]
General Laws c. 209C, § 10 (a), which was enacted in 1986, reflects
this trend and is consistent with the more recently adopted ALI
Principles. n10 HN6The statute 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 Zia, 50 Mass.App.Ct. 237,
244, 736 N.E.2d 449 (2000). It cautions against rearranging a child's
living arrangements in an attempt to achieve some optimum from all the
available permutations and combinations of custody and visitation,
when it is generally wiser and safer not to meddle in arrangements
that are already serving the child's needs. If the parenting
arrangement in which a child has lived is satisfactory and is
reasonably capable of preservation, it is ordinarily in the child's
best interests to maintain that arrangement, and contrary to the
child's best interest to disrupt it. Stability is itself of enormous
benefit to a child, and any unnecessary tampering with the status quo
simply increases the risk of harm to the child.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 General Laws c. 209C (concerning nonmarital children) was a new
chapter of the General Laws inserted by St.1986, c. 310, § 16.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***20]
HN7 [**642] The required considerations of the second paragraph of
G.L. c. 209C, § 10 (a ), neither replace the "best interests of the
child" standard nor limit the factors that a judge may consider in
determining what custodial arrangements are in the best [*844]
interests of the child. See Custody of Zia, supra at 243-244 ("judge
may consider any factors found pertinent to [child's best] interests
in the circumstances [and] judge is to identify and weigh those
factors"). Nor do they create a presumption that the caretaker with
whom the child is primarily residing will be awarded permanent
custody. See id. at 242-243. There may be serious shortcomings in the
primary caretaker's parenting to date, or evidence that a previously
exemplary caretaker will not be able to continue providing adequate
care. Or, even assuming that the primary caretaker has been providing
good care, and all indications are that that parent would continue to
do so, it is possible that the other parent may offer some
extraordinary advantage to the child that makes the disruption in the
child's life worth the risk. In most cases, however, if the child has
been [***21] living with one parent for some time, the child's needs
are being adequately met under that parent's care, and that parent is
capable of continuing to care for the child, it is not in the child's
best interests to disrupt that successful arrangement. Rather, it is
in the child's best interests to preserve it. Belief that the other
parent might be a little better in some areas ought not suffice to
disrupt a child's satisfactory home life with the caretaker parent.
For these reasons, HN8the three requirements set forth in § 10 (a),
second par., must be carefully considered by the judge in reaching a
decision regarding custody. Moreover, merely considering these
requirements at the end stages of the custody proceedings is not
enough. In order to provide a child with the benefits of stability and
continuity, these principles also need to be applied during the
pendency of the proceedings. See ALI Principles, supra at § 2.08(1)
(custody decisions should reflect each parent's performance of
caretaking functions "before the filing of the action"). When the
child has been living with one parent, the judge's initial inquiry on
any motion for a temporary order of custody must be whether [***22]
there would be any harm to the child in maintaining that status quo
pending the outcome of the case. By definition, the significant
benefits of maintaining the status quo, and the option of preserving
those benefits, may be irreparably lost if the status quo is disrupted
at the outset of the proceedings.
In light of these principles, we now consider the circumstances of this case.
[*845] 3. Discussion. HN9"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.' " Rosenberg v. Merida, 428 Mass. 182, 191, 697
N.E.2d 987 (1998), quoting Prindle v. Fisk, 2 Mass.App.Ct. 843, 844,
311 N.E.2d 586 (1974). However, we will not sustain an award of
custody "unless all relevant factors in determining the best interests
of the child have been weighed." Rosenberg v. Merida, supra, quoting
Bouchard v. Bouchard, 12 Mass.App.Ct. 899, 899, 422 N.E.2d 471 (1981).
The father contends that the judge's findings do not acknowledge or
adequately consider the factors required by G.L. c. 209C, § 10(a)
[***23] . He is correct that the judge's findings do not specifically
reference § 10 (a) or the three requirements of the second paragraph.
He is incorrect, however, in his claim that the judge did not
adequately consider them in his final [**643] custody determination.
Ordinarily, a judge should both reference the statutory requirements
and explain their impact, if any, on the custody award. Nevertheless,
in this case, we look to the substance of the judge's findings and not
to their form.
Beginning with the third required consideration (the establishment of
a parental relationship with or responsibility over the child), the
judge's findings are unequivocal: both parents established close
personal and parental relationships with Kali, and in the long period
between the entry of the temporary custody order and the date of
judgement both parents regularly exercised parental responsibility
over her health and well-being. As to the second required
consideration (where and with whom the child resided within six months
of the initiation of the proceeding), the judge's findings are equally
clear. Kali resided with her father during the week and with her
mother (often joined by her father) [***24] on the weekends.
Finally, with respect to the first requirement that the judge preserve
"to the extent possible" the relationship between the child and the
primary caregiver, the father argues that the judge's permanent
custody order should have reverted to and preserved the specific
arrangements for Kali's care that existed before the proceeding
commenced because the father was Kali's primary caregiver. The
temporary custody order entered at the [*846] beginning of this
action significantly altered Kali's living arrangements and the
parties' parental responsibilities. Assuming that the father was the
primary caregiver before proceedings began, his role as the primary
caregiver was effectively destroyed by that order. A judge should not
temporarily change a child's existing living arrangement so that he
(or a guardian ad litem) can "compare" the two parents, their
respective homes, and their respective day care providers "on an even
basis," or to give feuding parents an "incentive to get this matter
heard as quickly as possible," as the judge said when he entered the
temporary order requiring that Kali live with each parent on alternate
weeks. Because of the temporary order, by the time [***25] the judge
rendered his findings, the benefits of stability and continuity that
should have been a major focus of the judge's analysis were
eviscerated by two years of shuttling Kali from one parent to the
other on a weekly basis. n11 Although [**644] the judge did not make
a finding regarding which parent (if either) was the primary caregiver
at the time of trial, it was certainly within his discretion to
proceed as if neither parent occupied that role where the record
contained ample evidence that, at that [*847] point, both parents
regularly exercised proportional parental responsibility over Kali's
care. Given such circumstances, the judge had little choice but to do
what he did: abandon the requirements of the second paragraph of §
10(a) in favor of a point-by-point comparison between two fit parents.
It is apparent that the judge's final judgment was intended to
accomplish the objective of preserving "to the extent possible" the
relationship between the child and her parents at the time of his
decision. The judgment was structured to ensure that both parents,
each of whom had, during the pendency of the action, exercised
responsibility as Kali's caregiver, and each of whom had established
[***26] a positive parental relationship with her, would be able to
preserve, foster, and strengthen those relationships. Kali is to spend
school weekdays with her mother because her mother's schedule was
sufficiently flexible to ensure that Kali's needs during those periods
will be attended to, and because that schedule would also provide
ample opportunity for the mother and daughter to spend time together.
To the same end, the order provides that Kali is to spend most school
year weekends with her father, when he will not be constrained by long
work days. n12 The order splits summer and school vacations, with the
larger block of time awarded to the father, to accommodate the type of
activities that the trial evidence suggested formed the strongest
basis for the ties between the father and daughter. Ultimately, the
judge concluded that the mother was more "attuned to [Kali's] medical,
educational, and daily needs" and this tipped the balance as to where
the best interests of the child lay. n13
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 The validity of the temporary order is not before this court. That
the order may have affected the outcome of this case underscores the
importance of carefully considering the preservation of stable living
arrangements at the outset of a custody dispute. When the father
sought a temporary order that he be allowed to maintain custody of
Kali pending the outcome of the case, Kali had been living with him
for over a year, from the time she was fourteen months old until she
was two and one-half years old. Although she had been seeing her
mother on weekends, she was often accompanied by her father during
those weekend visits. Kali's home, and, at that age, the only "home"
that she could ever remember, had been with her father. That
arrangement could have been preserved with only the most minor
difference, namely, that the father would no longer remain with her
during any of her weekend visits to her mother. In all other respects,
her life could have gone on normally, with no perceptible change in
what she understood to be her "home." Yet, rather than inquire whether
there would be any problem with leaving Kali at "home" pending the
outcome of the proceedings, the judge entered an order that Kali split
her time evenly between the two parents, spending alternate weeks with
each. The child bounced back and forth in this fashion at least until
the judge rendered his findings in July, 2002, and, we assume,
thereafter. Moreover, the ostensible benefits that the judge used to
justify Kali's living arrangements during the pendency of the
proceedings proved ephemeral. The guardian ad litem, after making the
even comparison, recommended that the father be awarded custody, but
the judge rejected that recommendation. As for an expeditious
resolution, it still took two years to complete the proceedings.
[***27]
n12 We would be troubled if the judge's award of primary custody
between two working parents was based solely on the minor differences
in the amount of time the child would spend in day care. HN10Day care
is a fact of life in such circumstances and ought not be used as the
measure of a parent's ability or commitment to provide a protective,
healthy, and positive environment for the child. We are satisfied here
that the judge considered Kali's respective day care arrangements and
the work schedules of her parents in the context of balancing many
factors to reach a conclusion as to what is in Kali's best interests.
n13 Indeed, this case illustrates how subjective value judgments
affect a judge's assessment of the child's best interests. See ALI
Principles, supra at § 2.08 comment b (approach to determining child's
best interests "draws the court into comparisons between parenting
styles and values that are matters of parental autonomy not
appropriate for judicial resolution") and § 2.02 comment c ("When the
only guidance for the court is what best serves the child's interests,
the court must rely on its own value judgments, or upon experts who
have their own theories of what is good for children and what is
effective parenting"). Beyond the comparison of the day care providers
and schedules, the judge was critical of the father because he "does
not appear to be overly concerned about [Kali's] physical needs beyond
the basics," whereas the mother "preoccupies herself with [Kali's]
care regarding clothing, hygiene, doctor's appointments and childcare
providers." To some, it would be preferable that a parent stay focused
on "the basics" and not become "overly concerned" about things beyond
those "basics," and some might think it a disadvantage to have a
parent "preoccupied" with the child's clothes and cleanliness. Even on
the issue of medical care, where the judge viewed the mother as "more
attuned," the differences between the two parents reflected
justifiably different attitudes. Keeping the focus on whether the
child's primary caretaker has provided and can continue to provide
satisfactory care, rather than engaging in an inherently subjective
assessment of which parent will provide what the judge views as
optimal care, is part of the purpose behind § 2.08(1) of the ALI
Principles and the second paragraph of G.L. c. 209C, § 10 (a).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***28]
[**645] The facts of this case, as presented to the judge at the
trial, [*848] made the decision regarding custody a difficult one.
Both parents obviously love and are capable of and committed to caring
for their daughter. Leaving aside the award of temporary custody (from
which the father did not take an appeal), the judge's findings reflect
that he considered all of the circumstances before him and attempted
to structure a permanent custodial award to serve the best interests
of Kali, including her continued and substantial involvement with both
parents. In these circumstances, we cannot say that the judge's
resolution of the merits as they stood at the time of trial was an
abuse of discretion.
4. Conclusion. The order of the Probate and Family Court judge is affirmed.
So ordered. |
