CAROLYN GANNON KYRPYCH v. YAROSLAV KYRPYCH (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father appeals from a judgment of modification, as amended, issued by a judge of the Probate and Family Court that awarded the mother sole legal and physical custody of the parties’ children and granted the father supervised parenting time. We affirm.

Background. The parties were married in November 2014, and have two children together. When the parties separated, the father moved to Ukraine where his family lived. The parties were divorced in April 2022, and their separation agreement included the following custody provisions: (1) the mother had sole legal custody of the parties’ children; (2) the mother's residence was the children's primary residence; and (3) the parties were to transition to shared legal and physical custody after the father returned to the United States and established residency.

The father returned to Massachusetts in August 2022, and in October 2022, the mother filed a complaint for modification seeking sole legal and physical custody of the children. The father filed an answer and counterclaim also seeking sole legal and physical custody of the children. The judge appointed a guardian ad litem (GAL) “to investigate, report, and make recommendations to the [judge] concerning custody, domestic violence, and a parenting plan.” The GAL recommended, as relevant here, that the mother have sole legal custody of the children and that a parenting plan should be established to slowly increase the father's parenting time, “starting with family therapy and escalating to [the] [f]ather having supervised parenting time.”

After trial, the judge found that it was in the children's best interests for the mother to have sole legal and physical custody because the mother's “conduct is less extreme” than the father's. The judge found that the father “having any form of custody would be detrimental to the children because he fails to appreciate how his conduct affects them and furthermore seeks to minimize his own responsibility when his conduct harms them.” The father was granted supervised parenting time and an “ability to review and access the children's records and providers absent any decision-making authority.” This appeal followed.

Discussion. To obtain a custody modification, the requesting party “must first establish that a material and substantial change in circumstance has occurred to warrant a change in custody, and that the change is in the child's best interests.” E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020). “We review the judgment and the subsidiary findings of fact for abuse of discretion or other error of law, ․ giv[ing] due regard to the judge's assessment and determination of credibility of the witnesses and the weight of the evidence” (citation omitted). Id. at 409.

“In custody matters, the touchstone inquiry [is] ․ what is best for the child” (quotation omitted). Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019), quoting Hunter v. Rose, 463 Mass. 488, 494 (2012). “[T]he best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met” (citation omitted). E.K., 97 Mass. App. Ct. at 408. “The determination of which parent will promote a child's best interests rests within the discretion of the judge ․” (citation omitted), J.S. v. C.C., 454 Mass. 652, 656 (2009), who may consider such factors as

“which parent has been the primary caretaker of, and formed the strongest bonds with, the child, the need for stability and continuity in the child's life, the decision-making capabilities of each parent to address the child's needs, and the living arrangements and lifestyles of each parent and how such circumstances may affect the child.”

El Chaar v. Chehab, 78 Mass. App. Ct. 501, 506 (2010).

The father argues that the judge failed “to honor the statutory mandate that children are best served by maintaining a meaningful relationship with both parents.” However, it is appropriate for the judge to consider the effect of the parties’ relationship on their ability to jointly parent the child. See Smith v. McDonald, 458 Mass. 540, 553 (2010), quoting Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998) (“Joint custody is inappropriate for parents whose relationship to date has been ‘dysfunctional, virtually nonexistent, and one of continuous conflict’ ”). Here, the judge found that the parties had a contentious relationship and were not communicating at the time of trial. The judge also credited the GAL's assessment that “the parties see themselves as wholly good and the other as wholly evil.” Therefore, it was not an abuse of discretion to consider the parties’ relationship in finding that it was in the children's best interests to award the mother sole custody. See O'Connell v. Greenwood, 59 Mass. App. Ct. 147, 155-156 (2003) (“in the face of ‘overwhelming undisputed evidence of hostility between the parents and their disagreement on matters pertaining to the child,’ the child's best interests, always the paramount concern, are likely better served by ending the joint custodial arrangement” [citation omitted]).

The father contends that the sexual abuse allegations “shape[d] the custody outcome,” however, this is belied by the record. The judge decided that awarding custody to the father was not in the children's best interests “[n]otwithstanding the sexual abuse allegations.” Further, the judge stated that the children's allegations would be given “no weight unless an agency found them meritorious following a credible investigation” and the parties’ allegations were given “very little weight” because of credibility issues.

The father further argues that the judge “misrepresented and often mischaracterized the evidence before [her],” overlooked his experts’ testimony, and contends that the “[f]indings of fact, [r]ationale, and [j]udgment ultimately yielded an internal contradiction.” However, “[t]he judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child[ren] and weigh them as she sees fit” (citation omitted). Malachi M., 483 Mass. at 740. The judge, in deciding whether the modification was in the best interests of the children, properly considered the father's behavior and actions such as: the father's interference with one of the children's relationships with her therapist, his “rigidity concerning the children's health,” his “refusal to communicate with the children pursuant to [the] [m]other's boundaries,” and his failure to take responsibility for his actions.

The father's arguments are grounded in the weight the judge gave the evidence and the credibility determinations that she made in deciding whether the mother should have sole custody. The judge was best positioned to assess the witnesses’ credibility and evaluate the evidence, and we “[w]e do not substitute our judgment of the evidence for the subsidiary findings of the judge absent clear error ․, or a ‘firm conviction that a mistake has been committed.’ ” Mason v. Coleman, 447 Mass. 177, 186 (2006), quoting New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). The record before us contains nothing to suggest that the judge overlooked or improperly weighed any critical fact. See E.K., 97 Mass. App. Ct. at 409. Accordingly, we will not disturb the judge's conclusion that it was in the children's best interests for the mother to have sole legal and physical custody. See id. at 412-413 (no clear error where judge issued detailed findings of fact supported by the record and facts supported legal conclusions).¹

Amended judgment of modification dated January 29, 2025, affirmed.

FOOTNOTES

1.   The mother's request for an award of appellate attorney's fees and costs is denied.