JOURET v. BUTEAU (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Stefan L. Jouret (father) and Jennifer Buteau (mother) were divorced in 2012, pursuant to a divorce judgment granting the parties joint legal custody of their two minor children, with primary physical custody to the mother and supervised parenting time to the father. On January 27, 2017, a judge of the Probate and Family Court issued a “corrected consolidated judgment” (modification judgment) granting the mother sole legal and physical custody of the children (paragraph two), eliminating the father's parenting time (paragraph one), and prohibiting the father from initiating contact with the children (paragraph three). The judge found that the children, having refused to visit with the father for over two years, were “now entrenched in a position that the Court must honor.” The father appeals. Because we conclude that the judge improperly gave the children's preferences regarding visitation “decisive weight,” Bak v. Bak, 24 Mass. App. Ct. 608, 617 (1987), we vacate the portions of the modification judgment eliminating the father's parenting time and prohibiting him from contacting the children and remand those matters for further proceedings consistent with this memorandum and order. The remainder of the modification judgment is affirmed.

Discussion. We review custody determinations for an abuse of discretion. Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). “When determining ․ modifications of custody awards based on changed circumstances, the guiding principle always has been the best interests of the children.” Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996). See G. L. c. 208, § 28.³ A judge may terminate a noncustodial parent's visitation if the judge “determin[es] that visitation would not be in the best interests of the child[ren].” Schechter, supra at 248. See Vilakazi v. Maxie, 371 Mass. 406, 409 (1976). In determining the children's best interests, the judge may “consider the widest range of permissible evidence, including the reports and testimony of a court appointed investigator or G.A.L., evidence of the history of the relationship between the child and each parent, [and] evidence of each parent's ․ over-all fitness to further the child's best interests.” Ardizoni, supra. Moreover, the judge may “consider the expressions of a preference by a child in a custody dispute”; however, they “ ‘must be treated with caution,’ particularly where, as here, custody is hotly disputed.” Id., quoting Hale v. Hale, 12 Mass. App. Ct. 812, 820 (1981).

Here, the primary evidence before the judge consisted of (1) the parties' testimony, (2) the report and testimony of Mark Keays, a visitation supervisor appointed to supervise a handful of brief, unsuccessful visits between the father and the children, and (3) the report and testimony of the guardian ad litem (GAL), Dr. Dante Spetter, a licensed psychologist appointed to investigate and make recommendations regarding parenting time. During the course of her investigation, the GAL interviewed the parties, the children, and several collaterals, including the children's prior therapist, Dr. Kevin Kennedy. The GAL concluded that contact between the father and the children needed to recommence, and made a specific recommendation for unsupervised visits at least once per month. The GAL offered a detailed, thoughtful plan designed to encourage the children's attendance, while recognizing their reluctance to visit their father.

The judge ultimately “disagree[d]” with the GAL's recommendation “to reinstitute some type of relationship” between the children and the father. In reviewing the judge's findings, however, “we cannot ascertain why the judge chose not to follow the recommendations of the GAL.”⁴ Ventrice v. Ventrice, 87 Mass. App. Ct. 190, 196 (2015). Though the judge was not required to adopt the GAL's recommendations, see Pizzino v. Miller, 67 Mass. App. Ct. 865, 876 (2006), “[i]t is not obvious” from the judge's findings whether or not he “found [the GAL's observations and recommendations] credible.” Ventrice, supra. The judge simply concluded that “forc[ing]” the children to attend visitation with the father “could cause serious emotional and psychological damage.” There is no indication in the record that this conclusion was based on evidence from a mental health professional.⁵ See Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 142 (2009), quoting Felton v. Felton, 383 Mass. 232, 240 (1981) (“an ultimate conclusion needs a foundation in the record supported by ‘ground-level facts’ ”). While the GAL acknowledged the father had detrimentally affected his relationship with the children by his behavior, she did not find that the visits between the father and the children are in any way dangerous. She opined that some of the estrangement between the father and the children is attributable to the mother's anxieties. We are unable to determine whether the judge found the GAL's assessment of the mother to be credible, as he simply concluded the mother was not “responsible for the children's estrangement,” and that while she “may have affirmed [the children's] reluctance to see their father,” it was “not relevant.”

This is particularly concerning in light of the judge's conclusion that the children “will refuse any order” for visitation, and “are now entrenched in a position that this Court must honor.” The difficulty posed by the children's resistance to visits with the father does not, in and of itself, warrant the elimination of the father's parenting time. “It may well be that․ the most well conceived plan for visitation may not be fruitful․ Tentative results in difficult cases ․, however, do not excuse effort.” McCarthy v. McCarthy, 21 Mass. App. Ct. 924, 924 (1985) (vacating and remanding for a determination of appropriate parenting plan where trial judge refused to order visitation on the basis that “[a]ny court order ․ would lead to another round of court involvement and escalated trauma for the children”). “Here, the judge's obligation was clear: to craft a creative order drawing on the evaluations and recommendations of the professionals and his own insight, experience and knowledge.” Id. However, the judge's “articulated reasoning manifests an excessive reliance upon the [children's] preferences,” while largely ignoring the observations and recommendations of the GAL, a licensed psychologist. Ardizoni, 40 Mass. App. Ct. at 741. “We have examined․ the record from the proceedings below ․ and find no evidence from which the judge properly could have concluded that” the children would be harmed by visits with the father. Id. at 739. It is therefore apparent that the judge impermissibly gave “decisive weight” to the children's preferences regarding visitation. Bak, 24 Mass. App. Ct. at 617 (a judge may consider an older child's preference regarding custody, but that factor should “not [be] given decisive weight”). See Schechter, 88 Mass. App. Ct. at 247 (“our duty as a reviewing court is to ensure that the record reflects that all relevant factors have been considered by the judge, and that the decision is based on a fair weighing of the factors”). Accordingly, the matter must be remanded for a redetermination of the father's parenting time.

Turning to the issue of legal custody, we discern no error in the judge's decision to modify the prior shared legal custody award by granting sole legal custody to the mother. “Shared legal custody” is defined as “continued mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.” G. L. c. 208, § 31. “[F]or joint custody or shared responsibility to work, both parents must be able mutually to agree on the basic issues in child rearing and want to cooperate in making decisions for [their] children” (quotation and citation omitted). Rolde v. Rolde, 12 Mass. App. Ct. 398, 404 (1981). Here, the judge found the parties have “no ability to communicate” or “coparent effectively,” crediting the testimony of both parties and the GAL. See Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998), cert. denied, 525 U.S. 1073 (1999) (joint legal custody not appropriate where “the relationship of the parties has been dysfunctional, virtually nonexistent, and one of continuous conflict”). As there is nothing in the record convincing us that these credibility determinations were “plainly wrong,” we decline to disturb them. Zaleski v. Zaleski, 469 Mass. 230, 237 (2014). We are likewise unpersuaded by the father's contention that modifying legal custody was improper in the absence of a material change in the parties' ability to communicate since the prior judgment. It is apparent that the judge found the ongoing conflict between the parties to be contrary to the children's best interests, thus warranting a change in legal custody.⁶ See Rosenthal v. Maney, 51 Mass. App. Ct. 257, 262 (2001) (inferring material change in circumstances from best interest determination).

Conclusion.⁷ Paragraphs one and three of the corrected consolidated judgment dated January 27, 2017, nunc pro tunc to December 14, 2016, terminating the father's parenting time and prohibiting him from contacting the children are vacated, and those matters are remanded for further proceedings consistent with this memorandum and order. In all remaining respects, the corrected consolidated judgment dated January 27, 2017, nunc pro tunc to December 14, 2016, is affirmed.

So ordered.

Vacated in part and remanded; affirmed in part.

FOOTNOTES

3.   “Upon a complaint after a divorce, ․ the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.” G. L. c. 208, § 28.

4.   We reject the mother's assertion that the court-appointed GAL “testified as [the] [f]ather's paid expert.” The mother's own counsel stated at the trial that the GAL was the “Court's witness,” with which characterization the judge agreed.

5.   We recognize there is evidence in the record indicating that the younger child is being treated by a therapist for anxiety and trichotillomania. The court-appointed parenting supervisor testified that neither child expressed any fear of the father during their brief visits with him. The GAL's expressed observations were consistent with those of the parenting supervisor.

6.   By way of example, the judge described the father's “unilateral request” to have one of the children “subjected to a special education evaluation,” and his “attempts to have [the other child] medicated by a psychiatrist without disclosing [it] to the mother.” The judge concluded that the “[m]other must have sole legal custody,” as “[t]his Court cannot continue to subject the boys to this type of behavior” by the father.

7.   We briefly address the father's challenge to the “gatekeeper” order requiring him to obtain permission from the Probate and Family Court before filing further pleadings below. The father has failed to establish in his brief that the judge abused his discretion or committed an error of law in making such an order. We leave it to the judge to decide whether the order should remain in place on remand. With respect to the father's other arguments not addressed herein, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).