Massachusetts Appellate Cases / Child Custody
On this page we are compiling links to the full text of important Massachusetts Appellate Cases on Family Law and Divorce decided by the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court.
These cases are for educational purpose only and should not be used for any official or legal purpose. Please consult official reports. Below you will be able to search for Massachusetts Appeals Court Slip Opinions and Massachusetts Supreme Judicial Court Slip Opinions relating to Child Custody.
Child Custody Cases in Massachusetts
Abbott v. Virusso The Appeals Court, in a two-to-one decision, vacated a judgment of the Probate and Family Court denying a divorced mother's request that she be permitted to remove her son from Newton to Tuscon, Arizona. The court held, among other things, that the record did not reflect whether the probate judge had given adequate consideration to the mother's interests, as custodial parent, when determining whether the proposed move would be in the best interests of the child, "Because the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child's best interest requires that the interests of the custodial parent be taken into account". The court remanded the case to the Probate and Family Court for further hearing so that findings may be made.
Abbot v. Virusso, aff´d 450 Mass. 1030 (2008)
A.H v. M.P. The facts of this case raises two questions of first impression: 1) may an adult who is not the biological or adoptive parent of a minor child assert custody and support rights as a “de facto” parent; and 2) whether and to what extent should the court “recognize estoppel principles as creating parental rights where the party claiming such rights is neither the biological nor adoptive parent of the child and does not meet the criteria of a “de facto” parent. The plaintiff filed a complaint in equity seeking parental rights of a child, whose biological mother is the plaintiff’s former same-sex partner and defendant. By agreement of the parties, the child was conceived by in vitro fertilization during the parties’ relationship, but the parties separated when the child was 18 months old. The plaintiff never adopted the child. In consideration of the best interests of the child, the probate judge found that the parties agreed that the defendant would be the primary caretaker of the child, the plaintiff did not adopt the child during the parties’ relationship, and that the plaintiff showed “and inability to place the child’s needs above her own.” The probate judge also found that while the plaintiff loved the child, and the child might derive benefits from having contact with the plaintiff, the plaintiff does not meet the criteria of a “de facto parent” and the plaintiff is estopped from asserting parental rights the child. The probate judge’s decision was affirmed.
A.Z v. B.Z. The facts of this case involve the enforceability of a consent form between a married couple and an in vitro fertilization (IVF) clinic regarding the disposition of frozen embryos. During the marriage, the parties had difficulty conceiving for several years. Eventually, the parties were able to conceive, and had twin daughters in 1991. In 1995, before the parties separated and without informing the husband, the wife thawed one vial of preembryos, and had one preembryo implanted. A notice from the husband’s insurance agency informed the husband of the wife’s procedure, which caused the parties’ relationship to deteriorate. The wife obtained a restraining order against the husband, they separated and the husband filed for a divorce. The IVF clinic’s consent form required a signature from the parties every time eggs were removed from the wife and combined with the husband’s sperm. The consent form also contained a section that requires the parties to describe the disposition of the frozen preembryos. The first consent form signed by the husband and the wife stated that if the parties separated, they agreed to have the embryos returned to the wife for implant. Each consent form thereafter was blank when the husband signed it, and the wife completed form adding similar language regarding the disposition of the preembryos. The Husband received a permanent injunction that prevented the wife from using the preembryos, which the wife appealed. The appellate court held that the consent form should not enforced based on the circumstances of this case, and that the form itself did not represent the parties’ intention if there was a dispute regarding the disposition of the preembryos. Furthermore, the court held that it would not compel an individual to become a parent over his/her objection. The permanent injunction was affirmed.
Ardizoni v. Raymond - 40 Mass.App.Ct. 734 (1996). The best interests of the child is the guiding principle when determining child custody awards.
Bailey v. Bailey - 27 Mass. App. Ct. 502(1989) The trial court has the power to decide which parent gets the child dependency exemptions for federal tax purposes.
B.B.V v. B.S.V - We consider in this appeal the Hobson's choice that a Probate judge sometimes confronts in determining what is in the best interests of the children when granting physical custody. The husband, B.S.V., appeals from so much of a divorce judgment as grants sole physical custody of the parties' twin sons (W.V. and G.V.) to the wife, B.B.V. See G. L. c. 208, § 31. Based on the recommendations of a guardian ad litem (GAL), therapists, and his own appraisal, the judge determined that as between the husband and the wife, it was in the present best interests of the children that their physical custody be with the wife. On appeal, the husband contends that the judge abused his discretion in granting the wife physical custody because the wife had an incestuous relationship with her own father, R.S. The terms of the judgment awarding sole physical custody to the wife are vacated and the case is remanded to the Probate Court for the entry of an appropriate judgment in accordance with this opinion. It is open to the judge on remand to consider such additional safeguards on the grant of physical custody to the wife as may be in the children's best interests. Of course, the order of custody is open to modification should the circumstances change in the future.
Crowe vs. Fong In an action seeking modification of a child support order, the judge's findings, which were supported by the record, that there were material changes in the father's financial circumstances, and the judge's ruling that the father's witnesses were not credible, warranted an increase in the father's child support payments from $75 to $150 per week.
Custody of Kali The court declined to consider a claim that did not rise to the level of acceptable appellate argument and a claim not raised in the trial court. Discussion of the origin of the "best interests of the child" standard, as applied in child custody determinations, and the criteria established by G. L. c. 209C, s. 10 (a), that a judge must consider in reaching a decision on the issue of custody. In a child custody dispute between unmarried parents, the judge's final custody determination did not constitute an abuse of discretion, where his findings, although not specifically referencing G. L. c. 209C, s. 10 (a), or the required considerations contained therein, reflected that he weighed all of the circumstances before him and attempted to structure 'a permanent custodial award to serve the child's best interests, including her continued and substantial involvement with both parents.
Custody of Vaughn A custody matter was remanded to the Probate and Family Court for detailed and comprehensive findings of fact on the issues of domestic violence and its affect on the child in question and on the father's parenting ability.
Dickenson v. Cogswell A probate judge properly denied the request of a custodial parent to remove her minor child from Massachusetts to California (away from the biological father) on the ground that notwithstanding the sincerity of the mother's reasons for removal (i.e., being with her new husband), the collective balancing of interests established that removal would not be in the child's best interests, as it would force the child into a bi-coastal existence involving frequent flights for visitation purposes; diminish the child's financial security; and negatively impact the father-child relationship.
Doe vs. Doe A Probate Court awarded the parties joint legal and physical custody of their child and ordered the wife to release all her interest in the marital residence in exchange for payment by the husband of an amount of money which exceeded the parties' equity in that property. On the husband's appeal, we reverse that portion of the judgments pertaining to a division of the marital residence, but affirm the remainder and remand the cases for further proceedings.
Doe vs. Roe A complaint for child custody and support of a child born out of wedlock did not substantiate the defendant's claim that he was prejudiced by alleged lack of notice that the judge intended to make a final order for support. The evidence warranted the judge's decision to increase the amount of support. The judge properly took into account the defendant's family obligations incurred prior to the birth of the child. The judge acted properly in awarding the plaintiff her attorney's fees. A provision in the judge's order that the father pay costs of the eight year old child's higher education was premature. The defendant seeking modification of the child support order while the matter was on appeal should have sought leave from this court for the trial judge to enter a modification order.
E.N. v. E.S. - The judge properly ruled that Massachusetts had jurisdiction to determine the custody issue as Massachusetts is the home state of the child.
Fort v. Fort - 12 Mass App. Ct. 411 (1981) – The fact that the husband was cohabiting with an unmarried woman was not, in and of itself, sufficient to deny custody to the husband. Judges should not make moral judgments but should look for evidence of the effect on the interests of the child.
Freedman v. Freedman 49 Mass. App. Ct. 519 – Court ordered the child to spend one year with one parent and the next year with the other parent in rotation. In a shared legal custody arrangement. The Appelas court found this to be acceptable under the circumstances.
Gifford vs. Gifford Wife appeals from a judgment of a single justice of the court denying her petition for relief in which she sought a stay pending appeal of certain orders entered in the Probate and Family Court. The single justice neither erred nor abused his discretion and a stay pending appeal was neither required nor appropriate.
J.F. vs. J.F. Case involving a modification of custody and summary judgment. In proceedings arising from a father's complaint for modification of a judgment awarding sole physical custody of a child to the mother, the probate judge erred in granting summary judgment in favor of the mother, where, viewing the evidence in the light most favorable to the father, it could reasonably be inferred that the child's emotional needs were not being adequately met in the mother's household subsequent to the divorce.
Kendall v. Kendall (Zeitler v. Kendall) Based on a report of a guardian ad litem, a judge supported her order restricting the father's freedom to educate the three children in the tenets of his religion. The order was not an unconstitutional burden on the father's right to practice religion, nor did the order violate art. I of the Amendments to the Massachusetts Constitution or the establishment clause of the First Amendment to the United States Constitution. Parties were awarded joint legal custody of their children and declinined to award attorney's fees to the wife.
Mason v. Coleman - The parents were divorced in 198, and per their divorce agreement, they had joint physical custody of their children. The parties also agreed not to move twenty-five miles from Chelmsford, Massachusetts. After some time, both parties remarried and the father moved to Nashua, New Hampshire, which is seventeen miles from Chelmsford. The mother sought removal of the children from Chelmsford to Bristol, New Hampshire because of her new husband and other family ties. The father refused to consent to the removal, and the mother filed a complaint for modification. When parents have joint physical custody, removal "upon cause shown" under G.L. c. 208, section 30, means showing that removal is in the "best interests of the children." The trial court did not abuse its discretion by denying the mother's request for removal because removal was not in the "best interests of the children."
O´Connell v. Greenwood A probate and family court judge properly entered a contempt judgment against a mother who failed to produce the subject child for a scheduled holiday visit with the father pursuant to a clear and unequivocal court order, where the mother's offered evidence of the child's illness during the visitation period fell far short of showing an inability to comply with the underlying order.
R.H. v. B.F In an action for custody of a child, the trial judge's findings with respect to the significance of domestic violence within the family were clearly erroneous where they were unsupported by the evidence or inconsistent with evidence about which no findings were made: the judge's custody determination was not otherwise supportable on the record and the matter was remanded for further proceedings. An award of joint legal custody of a child was inconsistent with the express language of G. L. c. 209C, Section 10 (a), where it was inconsistent with the evidence of hostility of the parents and of their disagreement on matters pertaining to the child on the record of the proceeding.
Rolde v. Rolde Both parties in a divorce action were found to have and would continue to have substantial incomes. They each had substantial financial assets, and, because of their difficulty in communicating and inability to cooperate with each other, the best arrangement would be to prohibit all personal interaction and financial transactions between the parties. The judge awarded the marital home to the wife and relieved the husband of all alimony and child support payments. The personal hostility between the parties and their inability to cooperate or agree on proper child-rearing practices precluded an award of joint custody of their three minor children. The children's best interests would be served by awarding sole custody to the mother. The husband's visitation with his three minor children was reduced to less than it had been under a temporary custody order.
Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001). A parent may remove a child out of the Commonwealth of Massachusetts if he/she has established a “good, sincere, reason” or a “real advantage” for moving.
Sagar v. Sagar In this divorce proceeding, the judge awarded joint legal custody to the parents and designated the wife's residence as the child's primary residence with liberal visitation to the husband.
Shao v. Ma Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on June 10, 2005. The judgment of dismissal is vacated, and the case is remanded to the Probate Court for further proceedings consistent with this opinion.
S.W. v. D.P. This appeal arises from a custody dispute involving a now six year old child who lived in Massachusetts for the first year of his life, but who has since resided in Ontario, Canada. The matters of custody, visitation, and support were initially determined by the Probate and Family Court in February, 2004, after litigation lasting more than two years. The judgment dismissing the complaint is affirmed.
White v. White A Probate Court judge erred in taking testimony with respect to the credibility of statements and witnesses from the adult daughter of the parties in a private session where neither party nor their counsel were present; further, substantial injustice resulted where the testimony contained inadmissible prejudicial evidence that clearly influenced the judge in denying the father custody and visitation rights with his minor daughter: the matter was remanded for a new trial before a different judge on the issues of custody and visitation.
Yannas v. Frondistou-Yannas Case in which custody of the parties' two minor children was in issue, the evidence warranted the judge's conclusion that awarding physical custody to the wife was in the best interests of each child. The judge was warranted in determining that the wife's removal of the children from the Commonwealth to Greece would be in the best interests of the children.
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