Massachusetts Divorce 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, 68 Mass. App. Ct. (2007): 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 Tucson, 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.
Abbott v. Virusso, 450 Mass. 1031 (2008): Custodial mother appealed a judgment from the probate court that denied her request to take her child and move from Newton, MA to Tuscon, AZ. The Supreme Judicial Court affirmed the Appeals Court's decision to vacate that judgment and remand the case back to the probate court. The Supreme Judicial Court held that the probate court did not adequately consider the best interests of custodial mother as they pertained to the best interests of the child.
A.H v. M.P., 447 Mass. 828 (2006): 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.
Altomare v. Altomare, 77 Mass. App. Ct. 601 (2010): Where the wife has sole physical custody of the parties children, she may relocate the children out of state so long as she can show a real advantage to the relocation and that the relocation is in the best interest of the children. The court will apply the out of state removal principles to a custodial parent’s motion to relocate children inside the Commonwealth where relocation significantly disrupts the custodial parent’s visitation rights and where the parents cannot agree to the relocation.
A.Z v. B.Z., 431 Mass. 150 (2000):
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): Court of Appeals held that keeping identical twin girls separated from each other so that each parent could have custody of 1 child was not in the best interest of the children and the best interests of the child will be the guiding principle when determining child custody awards. A judge is allowed to consider the child’s opinion of which parent they would like to live with when determining custody order, but the preference of a younger child is not given decisive weight.
Bailey v. Bailey,
27 Mass. App. Ct. 502 (1989): After divorce proceeding, the probate court awarded the wife custody of the couple's 12 adopted minor children. The probate court also awarded the husband dependency exemptions for 6 of the 12 children under 26 U.S.C.S. § 152(e)(2) of the Internal Revenue Code. The Appeals Court ruled that § 152(e)(2) gave state courts the power to grant dependency exemptions, but the wife needed to make a written declaration pursuant to § 152(e)(2) before the non-custodial husband was granted the exemptions. The Appeals Court remanded the issue to the probate court with these orders.
Barnes vs. Devlin, Docket 12-P-1283 (2013):
B.B.V v. B.S.V, 68 Mass. App. Ct. 12 (2006): 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.
Belfar vs. Lipsett, 439 Mass 1016 (2003):
Bouchard v. Bouchard, 12 Mass. App. Ct. 899 (1981): A judgment of divorce nisi improperly granted wife custody of minor child when the probate court did not weigh all of the relevant factors for determining the child's best interests. The probate court apparently took into account the father's potential violation of G.L. c. 272, § 16, lewdness or lascivious behavior, without evaluating if or how this affected the child's best interests. The case was remanded to the probate court on this issue with additional orders to evaluate the length and nature of the time the child has spent in her father's home and in what respects, if any, such time has benefitted the child's welfare.
Bower vs. Bournay-Bower - No. SJC-11478 (2014):
Cartledge v. Evans, 67 Mass. App. Ct. 577 (2006): A custodial mother had lost her job and moved from Newton, MA to Old Saybrook, CT, where the mother's mother provided free lodging and child care assistance. The custodial mother also enrolled the child in a good parochial school. During this time, the probate court judge issued a judgment denying the mother permission to permanently remove the child from Massachusetts to Connecticut because such a move would have been allegedly too disruptive to the father's relationship with the child. The probate court denied an order granting the removal. On appeal from the mother, a single justice stayed the probate court's order denying the removal. On appeal from the father about this stay, the court determined that the single justice had the power stay the order and that the decision to stay the order was the least disruptive option for the child. The appeals court applied the "real advantage test", namely taking into account the child's best interests but also the well-being/interests of the custodial parent. The mother's marriage had dissolved, she had lost her job and her house, and she was able to find solutions to these issues in Connecticut which was still close enough not to seriously disrupt the father's visitation rights. Moreover, the mother had agreed to extending the times of his visitation to minimize its effect. The disruption of the father's relationship with the child was weighed too heavily when denying the order, and the real advantage test was satisfied, thereby affirming the order of the single justice and approving the mother's application to remove the child.
Charara v. Yatim, 78 Mass. App. Ct. 325 (2010): Massachusetts Probate Court could exercise jurisdiction over child custody proceedings where children had only lived in Lebanon for less than six months when the divorce action was filed pursuant to the Massachusetts Child Custody Jurisdiction Act. The best interest of the child standard which the Massachusetts courts use was not consistent with the Jaafarite Court where there was a presumption in favor of the father and that if both parents were fit the father would be awarded custody. The MA court found that the custody agreement signed by the wife, giving the father custody of the children, was signed under duress, therefore invalid on the issue. The wife entered in to the agreement because she knew she could not obtain custody in the Lebanese courts and was just trying to secure visitation.
Charrier v. Charrier, 416 Mass. 105 (1993):
Crowe vs. Fong, 45 Mass. App. Ct. 673 (1998): 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, 439 Mass. 834 (2003): 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, 422 Mass. 590 (1996): Where a there is a restraining order against a father because of physical violence he afflicted on the mother, a Court cannot award sole or joint custody to that parent without first conducting a finding of fact on the domestic violence issues and a determination of the effects of that violence on the child.
Custody of Victoria, 473 Mass. 64, (2015):
Della Corte vs. Ramirez, 81 Mass. App. Ct. 906 (2012): Mother and her domestic partner were wed two months after the mother was artificially inseminated by an anonymous donor. Upon getting a divorce, the probate court awarded joint legal custody as that appeared in the best interests of the child. The birth mother later sought to modify the custody order by claiming that the domestic partner was not the biological or even legal parent in that she had never even adopted the child. The court upheld the joint legal custody order and found that there must be a substantial and material change in circumstances to justify modifying an order, and such a change did not exist in this case. Additionally, a "best interests of the child" analysis was not conducted precisely because there had not been a substantial and material change in circumstances.
Dickenson v. Cogswell, 66 Mass. App. Ct. 442 (2006): 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, 16 Mass. App. Ct. 499 (1983): 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, 32 Mass. App. Ct. 63 (1992): 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.
Duro v. Duro, 392 Mass. 574 (1984):
E.N. v. E.S.,
67 Mass. App. Ct. 182 (2006): The judge properly ruled that Massachusetts had jurisdiction to determine the custody issue as Massachusetts is the home state of the child. To determine whether the Massachusetts Trial Court had jurisdiction requires a 2 part test: 1) whether MA was the “home state of the children when the divorce action was filed and 2) whether the Trial Court should have exercised jurisdiction under MCCJA and Parental Kidnapping Prevention Act.
Fehrm-Cappuccino v. Cappuccino, No. 15-P-484 (2016):
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 (2000): 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 Appeals court found this to be acceptable under the circumstances.
Gifford v. Gifford, 451 Mass. 1012 (2008): 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.
Hennessey v. Sarkis, 54 Mass. App. Ct. 152 (2002): A husband and wife were involved in a particularly contentious divorce, with the divorce judgment itself leaving several parts of the division of marital property to be effectuated in the future. While these parts were pending, the wife sought a restraining order against the husband as well as a complaint for contempt due to the husband not complying with the divorce judgment. The court ruled that the divorce judgment should not incorporate a new, permanent restraining order without leave from the appellate court, although issuing a temporary restraining order was within the power of the court. The husband was found to be in compliance with the divorce order so he was not found to be in contempt, nor would a violation of that temporary restraining order constitute contempt.
Iv v. Hang, 83 Mass. App. Ct. 598 (2013):
J.F. v. J.F., 72 Mass. App. Ct. 782 (2008): 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.
J.S. v. C.C.,
454 Mass. 652 (2009): The best interest of the child shall determine which parent shall become the primary custodial parent. A trial judge does have discretion in making that determination. The appeals court cannot overturn that decision where it is apparent that the trial judge unless it is plainly wrong.
K.A. v. T.R. - Docket: No. 13-P-108 (2014):
Kendall v. Kendall, 426 Mass. 238 (1997):
(a.k.a. 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 declined to award attorney's fees to the wife.
Mason v. Coleman, 447 Mass. 177 (2006): 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."
Murphy v. Murphy, 82 Mass. App. Ct. 186 (2012): After divorce proceeding, husband and wife shared joint legal custody of their child, but the wife was awarded sole physical custody. The wife moved to New York with the child, and the probate court found good cause for removing the child from Massachusetts because the wife had a sister in New York with whom she could live and also who would provide childcare, the wife had a job opportunity there, and the wife had no motive to deprive the father of any visitation rights. A real advantage existed for the wife's decision to move to New York, and as she had bonded with her child and had a healthy relationship with her, the child's best interests were served. However, the divorce judgment's provision mandating that the husband pay for the child's routine uninsured medical expenses was not in accordance with the statute (Mass. Child Support Guidelines § II(G)(3)), and as such, this part of the judgment was vacated and remanded.
O´Connell v. Greenwood, 59 Mass. App. Ct. 147 (2003): 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.
Pedersen v. Klare, 74 Mass. App. Ct. 692 (2009): A trial court found a wife in contempt of a divorce judgment because she did not allow her four children, at the time the oldest being twelve and the youngest being five, to fly alone from Atlanta to Hartford. The husband and the marital property were located in Hartford and the husband had corresponded through his attorney with the wife's attorney, indicating the itinerary for the children. The wife's attorney expressed serious concern over the travel arrangements and indicated that she would want to coordinate a mutually agreed upon adult to accompany them. The husband never responded to this correspondence, the children did not visit the father, and the trial court held the mother in contempt of the divorce judgment's child custody provisions. The appeals court held that her admonitions were not unreasonable and were not an attempt to deny the father his visitation rights, particularly because the children's health, safety, or welfare were not affected. The trial court's contempt order was overruled and the husband's attorney's fees she paid were to be returned to her.
Prenaveau v. Prenaveau,
75 Mass. App. Ct. 131 (2009): Minor children who have lived in the Commonwealth for five years or more cannot be removed from the Commonwealth without a showing to the court of good cause. Good cause is the best interest of the child standard.
R.H. v. B.F, 39 Mass. App. Ct. 29 (1995): 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 , 12 Mass. App. Ct. 398 (1981): 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, 57 Mass. App. Ct. 71 (2003): In situations where divorced parents have differences in religious views or practices the State cannot intervene to vindicate one parent’s fundamental rights to the exclusion of the other parent’s rights unless there is a compelling State interest, such as physical or physiological harm can be shown.
Shao v. Ma, 68 Mass. App. Ct. 308 (2007): Court of Appeals held that where a father had taken child back to China and Mother obtained divorce judgment in China, which awarded custody to the Father, Massachusetts Courts was required to make a statutory finding as to whether it could make a determination regarding child custody. The Court also held that the Court had jurisdiction to distribute property both inside and outside of Massachusetts.
S.W. v. D.P., 68 Mass. App. Ct. 901 (2007): 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.
Tammaro v. O'Brien,
76 Mass. App. Ct. 254: Mother filed post-divorce modification to remove children from the Commonwealth to New Hampshire. Court Granted request and husband appealed. A modification is not the appropriate action when requesting to relocate the children outside of the Commonwealth, however as long as the complaint provides notice to the opposing party specifically what the relief sought is, relocation, then it is sufficient.
Ventrice v. Ventrice, 87 Mass. App. Ct. 190 (2015):
Wasson v. Wasson, 81 Mass. App. Ct. 574 (2012): A wife had filed a complaint seeking to modify the child support order, stating that the husband's capital gains income was excluded from determination of child support payments. The judge responsible for modifying the child support order deviated from statutory guidelines and did not offer an explanation for his deviation in specific written findings when he granted that modification order. The husband claimed that he was subjected to "double dipping," where a party will be awarded an asset or property through the division of property only to have that be used a source of income for child support purposes. The husband's situation with his capital gains income did not fall within the typical circumstances surrounding "double dipping", but as the modification judge made no specific written findings dealing with this issue, the wife's modification order was vacated and remanded for a proper determination.
White v. Laingor, 434 Mass. 64 (2001): A divorced father and mother agreed to a modification of child-support payments. The mother had remarried and her new husband wished to adopt the children: if the father consented to the adoption, his lump-sum payments would be reduced. One of the children objected to the adoption, and thus the adoption did not occur. The father claimed that he was entitled to the reduced child-support payments because he consented to the adoption. The Supreme Judicial Court determined that the reduction in child-support payments was not enforceable because the probate court did not take into account whether adoption by the new husband would be in the child's best interests.
White v. White, 40 Mass. App. Ct. 132 (1996): 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.
Woodside v. Woodside, Mass. App. Ct., No. 10-P-149 (2011):
79 Mass. App. Ct. 713 (2011): The “real advantage test” is used when a custodial parent seeks to relocate children outside of the Commonwealth without consent of the non custodial parent. Under the “real advantage test” the custodial parent must show that the child’s quality of life may be improved by the move. This can also include an improvement to the custodial parent’s life. The court must look at the effect relocation will have on the child’s emotional, physical, and developmental needs.
Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985): 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.
Zeitler v. Kendall, 426 Mass. 238 (1997) See: Kendall v. Kendall A divorced defendant father and plaintiff mother sought to modify the divorce judgment, with the father claiming that the judgment infringed on his freedom of religion and the mother claiming that the judgment should not have awarded joint custody and divided property and attorney's fees as it did. The father had converted to an extreme practice of Christianity, and he frequently created turmoil in the family based on his hostility towards his children's and mother's Jewish faith. The divorce judgment was not found to "establish Judaism" as the religion of the children, only limiting the father's exposure of his faith to the children. The principal reason for allowing this limitation was that his practice of faith was creating a "substantial harm" to the children. The best interests of the children were considered and their strong identification with Judaism, coupled with the father's emotionally damaging hostility, resulted in the court limiting the father's religious rights with his children. The mother was not awarded any change in the judgment with respect to her issues as the court did not find the probate judge abused her discretion or erred with any part of the judgment.