F.L. v. O.S. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a trial on the mother's complaint for modification, the father's complaint for modification, and the father's complaint for custody, visitation, and support, a Probate and Family Court judge granted sole legal and physical custody to the mother. The mother was ordered to provide the father with copies of the children's medical, dental, and educational records; the father was ordered not to contact the children's schools or health or dental care providers, nor is he allowed at any school or extracurricular activities in which the children are involved; and the father was granted parenting time one day per week for two hours supervised by a professional supervisor at his own cost, and after six months of successful visits, he would be allowed to increase his visit to three hours per week. The father argues that the judge erred in: (1) awarding sole legal and physical custody of the children to the mother, and (2) in requiring that the father's parenting time be supervised at a visitation center.² The mother did not file a responsive brief. We affirm.

Discussion. a. Custody. The father argues that the judge erred in granting sole legal and physical custody of the children to the mother instead of the father. He argues that the judge ignored or minimized the evidence against the mother, and made clearly erroneous findings about the father. He does not contend that shared custody was appropriate.

We review custody determinations for an abuse of discretion. See Schechter v. Schechter, 88 Mass. App. Ct. 239, 245 (2015). “In custody matters, the touchstone inquiry [is] ․ what is ‘best for the child.’ ” Hunter v. Rose, 463 Mass. 488, 494 (2012), quoting Custody of Kali, 439 Mass. 834, 840 (2003). See G. L. c. 208, § 28. “The determination of which parent will promote a child's best interests rests within the discretion of the judge ․ [whose] findings ․ must stand unless they are plainly wrong.” Hunter, supra, quoting Custody of Kali, supra at 845.

Here, the judge's findings acknowledge the mother's significant mistakes and a period of probation the mother served after a drug charge was continued without a finding. Nonetheless, the judge acted within her considerable discretion to credit the evidence that at the time of her decision, the mother had successfully parented these two children, and the mother's two older children, for at least the last year and one-half. She had “made strides and improvements in her life and ha[d] been able to put the needs of her children first.” She also had been fully compliant with the requirements of the Department of Children and Families (DCF).

The father also argues that the judge inflated the father's deficits, particularly arguing that certain factual findings were clearly erroneous. Specifically, the father challenges the finding that he was arrested for arson. He also argues that the judge should not have considered his arrest for breaking and entering of a church, a charge that was dismissed, and an entry on his criminal record indicating that he failed to register recently as a sex offender.

Even assuming these findings were clearly erroneous, considerable additional findings supported the judge's custody determination. See Guardianship of Clyde, 44 Mass. App. Ct. 767, 775 (1998) (even if judge made some erroneous findings, errors were harmless where they did not affect judge's conclusion of parent's fitness and child's best interests).

The judge found that it would not be in the children's interest to grant the father physical custody of the children, as he did not understand “how his actions ha[d] a negative emotional and psychological impact” on them, which prevented him from providing the children with a safe environment. Indeed, the judge found that the father was unable to have unsupervised parenting time with the children. The father refused to allow a social worker from DCF to visit the father's apartment, confirm a lease, or assess the home for safety concerns. The father was unable to keep his mental health regulated, and whatever mental health treatment he was receiving was not addressing his issues. Due to the father's volatility, DCF hired a police officer to be present during his visits with the children. At the time of trial, the father had open criminal matters and the mother and the father's mother had active restraining orders against him. In addition, the father threatened the safety of personnel at the Salem District court house. Finally, the father is a level one registered sex offender.

In light of all of these findings, we conclude that the judge neither abused her discretion nor applied an improper analysis in awarding sole legal and physical custody to the mother. See Hunter, 463 Mass. at 494-495.

b. Supervised visitation. The father argues that the judge erred in requiring that the father's parenting time be supervised at a visitation center because “it is not supported by the evidence.” Again, we disagree.

“The governing principle by which the court must be guided in deciding [custody and visitation] is the welfare of the child.” Vilakazi v. Vilakazi, 371 Mass. 406, 409 (1976). “To change visitation [a party] must ․ demonstrate that a material and substantial change [of circumstances] has occurred and that a change in visitation would be in the best interest of the children.” Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 289 n.1 (1996), citing G. L. c. 208, § 28. See 3 Kindregan & Inker, Family Law and Practice 3d § 70:8 (2002). The promotion of a child's best interests “may involve some limitation of the liberties of one or other of the parents.” DiRusso v. DiRusso, 12 Mass. App. Ct. 892, 893 (1981), quoting Felton v. Felton, 383 Mass. 232, 233 (1981). See 2A Kindregan & Inker, Family Law and Practice 3d § 48:1 (2002). Furthermore, supervised visitation may “be required by the court to protect the child's welfare,” Harvey, Moriarty & Ryan, Massachusetts Domestic Relations 2d § 8-95 (2003), and “much must be left by necessity to the discretion of the trial judge.” Petruzziello v. Newman, 8 Mass. App. Ct. 896, 897 (1979).

There is nothing in the father's argument that would cause us to disturb the court's judgment as it pertains to supervised visitation. The judge found that the father needs to have supervised visitation until such time as he is willing and able to enroll in mental health treatment and “get his anger under control,” as the father struggled to control his behavior when interacting with DCF even when the police were present. This illustrates “a need for the continuation of [the father's] parenting time to be supervised in a safe, structured setting.” While the father's lack of resources and a wait list at a community facility have interfered with the father's visitation, we cannot discern an abuse of discretion in the judge's decision that supervision by an adult from the father's church would not provide sufficient protection for the children. The judge even considered testimony from the father's pastor, who admitted after seeing the father's social media posts, that the father had not progressed very far. Moreover, even when the father was supervised by a DCF social worker, there were safety concerns.

The father also contends that the judgment fails to conform to the Probate and Family Court Department of the Trial Court: Guidelines for Court Practices for Supervised Visitation (Apr. 2005) (guidelines) because it does not contain a specific review date for visitation. Rather, the judgment sets forth specific milestones that, if met, permit expanded visitation such as an increase in visitation. Paragraph eleven of the judgment further provides that after the father completes one year of supervised visitation, with the written permission of the court, he can file a complaint for modification to further expand his parenting time and request unsupervised visitation. Although the judgment sets forth a review date in a period of months as opposed to a specific month and day, we conclude that this language constitutes a specific review date in accordance with the guidelines. Even if it did not, we discern no abuse of discretion. The guidelines are nonbinding guidance for the court when issuing judgments regarding supervised visitation, and, although the father must seek the court's permission beforehand, the judgment does not preclude him from seeking review in the trial court before the one year date. It cannot be said that this language "falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Judgment affirmed.

Orders dated March 12, 2019, and May 6, 2019, affirmed.

FOOTNOTES

2.   The father appeals from the January 29, 2019, judgment on the mother's complaint for modification, the father's complaint for modification, and the father's complaint for custody. He also appeals from the March 12 and May 6, 2019, orders denying his requested relief regarding visitation.