PIERRE LANGLOIS v. SARAH OUELLETTE (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Pierre R. Langlois (father) appeals from a judgment, dated March 28, 2024, issued by a judge of the Probate and Family Court, awarding Sarah Ouellette (mother) sole legal and physical custody of the parties’ child, then six years old, awarding the father parenting time, and ordering that the father pay child support.¹

Background. The parties last lived together in April 2021, after which the father had informal overnight parenting time until May 2022, when he filed a G. L. c. 209C complaint for custody, support, and parenting time. In his complaint, the father sought shared custody. The following day, the mother filed her own custody complaint, requesting sole custody, child support, and supervised parenting time for the father. Soon thereafter, the father amended his complaint to seek sole custody.

Trial was scheduled for January 29, 2024, and on January 10, 2024, the father filed a motion “to allow video presentation equipment at trial” with a supporting affidavit, averring that certain video evidence had “probative value” and was admissible. A hearing was held on this motion on January 18, 2024, during which the judge expressed concern that the forty minutes of video recordings the father sought to introduce at trial would be too time consuming, and inquired about the contents of each recording in turn. The judge ruled from the bench that the father could use the video equipment and submit two recordings: a recording showing the child playing tennis with the father and a twenty-second recording showing the child in Connecticut.² The judge excluded additional video recordings of the child as unnecessarily duplicative. He also excluded a video recording the father described as, “You'll see the defendant punching my daughter in the face as well as me ․” The judge excluded the video recording because it was taken without the mother's permission. On January 22, 2024, the father filed a motion to reconsider the exclusion of the video recordings, which was denied on the same date.

One day of trial was held on January 29, 2024. Six witnesses testified, including the parties, the father's girlfriend, the child's maternal grandmother, a representative from the Department of Children and Families (DCF), and the principal of the child's school.

The judgment issued thereafter, and was dated March 28, 2024. The judge found that the mother was the child's primary caretaker, and that the father was present in the child's life and had established a personal and parental relationship with the child. However, the judge further found that granting the father primary or shared physical custody would require the child “to begin living on an extended basis in a residence where she has not spent one night.” The judge noted that the father had moved to Connecticut but did not request permission to remove the child from Massachusetts in his original or amended complaint. After considering the language of G. L. c. 209C, §§ 10 (a), (e), and applying it to the facts as found at trial, the judge concluded that it was in the child's best interest that the mother retain primary physical custody, as the child had lived with the mother for the past six months and she was the child's primary caretaker. The judge also awarded the mother sole legal custody, where the parties had “not successfully exercised joint responsibility for the child.” The father was awarded parenting time, including overnight parenting time beginning in September 2024.

Discussion. The father argues (1) that the judge erred by excluding certain evidence, (2) that certain of the judge's findings supporting the custody determination were clearly erroneous or against the weight of the evidence, rendering the ultimate custody ruling an abuse of discretion, and (3) that the father was deprived of due process in several ways, including that he was only given thirty minutes to present narrative testimony as a self-represented party.

1. Evidentiary issues. The father challenges the exclusion of certain video recordings he sought to present at trial. “We review a trial judge's evidentiary decisions under an abuse of discretion standard. In applying that standard, we look for decisions based on whimsy, caprice, or arbitrary or idiosyncratic notions, and do not disturb the judge's ruling simply because [we] might have reached a different result; the standard of review is not substituted judgment” (quotations and citations omitted). N.E. Physical Therapy Plus, Inc. v. Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013).

The father makes three arguments regarding video evidence. First, he argues that the January 18, 2024, motion hearing was “abruptly transformed ․ without prior notice” into a hearing on the admission of his video evidence, and that this deprived him of due process where he expected the hearing to be limited to his request to bring video recording equipment to trial. We are not persuaded. Where the father's motion and affidavit argued for the admissibility and relevance of the video evidence he sought to admit, and the relief he requested (the use of video equipment at trial) turned on the admission of the evidence itself, the judge properly considered the admission of the video evidence at the hearing, in light of the time available for trial and the father's request to play forty minutes of video recordings. See Babaletos v. Demoulas Super Mkts., Inc., 493 Mass. 460, 465 (2024) (“Relevant evidence is excludable in the judge's discretion as an unduly time-consuming ․ diversion should the probative value of that evidence be substantially outweighed by such a risk” [quotation and citation omitted]).

The father's second claim has more substance. He argues that the exclusion of a video recording that he initially described as showing “the defendant punching my daughter in the face as well as me and one of the instances that she was charged with,” was an abuse of discretion.

To begin with, if not otherwise prohibited by law, a video recording of domestic violence perpetrated by a parent against a child or the other parent should be admitted so the judge may examine it and take it into account. Before excluding evidence alleged to have such content, the judge therefore must at least review it. This is so even if the video recording is, as this one apparently was, about five years old.

When the father sought to have this video recording admitted, the judge asked if the father had the mother's permission to film her, which he did not. The judge then said, “Let me say this. In this courtroom unless the other party has agreed to the video or recording, I shall not hear it.”

The judge did not spell out his reasoning, but he seems to be referring to the wiretap statute, G. L. c. 272, § 99. Assuming “interceptions,” as defined in the statute, may not be admitted in civil proceedings such as this, however, permission is not always required to render recordings admissible. Only “secretly recording” someone creates an interception. As the Supreme Judicial Court has explained, and as the self- represented father actually argued below, “[a] recording that is made with the actual knowledge of all parties is not an interception, even if they have not affirmatively authorized or consented to it.” Commonwealth v. Boyarsky, 452 Mass. 700, 705 (2008).

The father's offer of proof amounted only to his description of the video recording. And there is at least some reason to think it does not show precisely what he described. At trial, the father asked the mother about “video evidence where my daughter was inadvertently struck in the face,” which may have referred to this same video recording and which is substantially different from punching the child. And there was evidence, admitted only for impeachment, that a DCF social worker and supervisor who had viewed some video evidence provided by father alleged to show violence by mother against him, were not persuaded that it had any bearing on the mother's fitness to parent the child.

Nonetheless, given the description father gave of the video recording, and the fact that it was excluded based on an erroneous reading of the wiretap statute, the case will have to be remanded for the judge to view the video recording and determine what it shows and whether it warrants vacatur of the order and further proceedings. We are of course aware there is no prejudice where even improperly excluded evidence could not have materially affected the result in this case. See DeJesus v. Yogel, 404 Mass. 44, 48 (1989). And we are aware of the judge's detailed findings, including findings about the mother's role as primary caretaker, the child's residence for the six months prior to the proceedings, the parties’ relationships with the child, various restraining orders taken out against the father, his own criminal past, some of his behavior at the child's school, the fact that the child had not ever been overnight in his home, and that he had not sought to remove her to Connecticut, where she had never lived, but where, he testified, he did. But, without seeing what it shows, we do not think we can properly conclude that a video recording alleged to show the mother committing domestic violence could not materially affect the result.

Finally, the father argues that a video recording offered to impeach the mother's trial testimony was erroneously excluded at trial. Here, though, we cannot properly conclude that it was an abuse of discretion for the judge to decline to admit such evidence to rebut the mother's testimony at trial. See Drake v. Goodman, 386 Mass. 88, 92 (1982) (“A trial judge has substantial discretion whether to permit the presentation of rebuttal evidence”). The father's testimony as to the purported contents of the recording was found to be credible, the judge saying, “The court credits the father's testimony that the mother sought to fabricate an allegation of abuse,” and he offered the recording only to rebut the mother's testimony about the context in which the recording was created. As such, the father has not shown that the exclusion of the recording was an abuse of discretion or that it had a material effect on the case.

2. Custody determination. The father challenges the judge's weighing of the evidence, determinations of credibility, and findings of fact, which underlie the ultimate award of primary physical custody and sole legal custody to the mother. “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Mass. R. Dom. Rel. P. 52 (a). “We 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” (quotations and citations omitted). Mason v. Coleman, 447 Mass. 177, 186 (2006).

Here, none of the father's several arguments show that the judge's findings were erroneous. For example, the father contests the judge's finding that the mother was the child's primary caretaker from the child's birth, relying in part on the mother's prior testimony in an unrelated Connecticut proceeding. In this testimony, the mother described the parties’ life with the child when they were residing together in 2018, and testified that the father cared for the child during the work week, while the mother was at work. This does not show, as the father suggests, that the mother was not the child's primary caretaker. Similarly, the father's reliance on the findings of a Connecticut judge, about the custody of another child, is misplaced. He argues that a Connecticut judge's finding that the opposing party in that matter “align[ed] herself” with the mother in this case should undermine the mother's credibility here. We disagree. The judge in this case had the opportunity to hear the mother's trial testimony, subject to cross-examination, and “[w]e accord the credibility determinations of the judge who heard the testimony of the parties ․ [and] observed their demeanor ․ the utmost deference” (quotations and citation omitted). Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 394 (2022). The father also argues that text messages between himself and the child's maternal grandmother show that the mother was abusive and that he was the child's primary caretaker. However, the text messages he offered do not compel either conclusion.

The father argues that alleged inconsistencies make some of the mother's testimony implausible, and that some acts -– for example, his buying the child a snorkel and flippers -– must be construed as he argues. But the judge has sole authority to judge credibility and to draw reasonable inferences from the evidence.

3. Procedure. The father argues that he was denied due process as a result of the alleged errors discussed above, and by the procedure by which the trial was conducted. “Procedural due process requires at least the opportunity to be heard at a meaningful time and in a meaningful manner” (quotation and citation omitted). Thaddeus v. Secretary of the Executive Office of Health & Human Servs., 101 Mass. App. Ct. 413, 424-425 (2022). The father argues he did not have a “meaningful ability to present his case and evidence” because he was given only thirty minutes “to present a complex custody defense.” The judge, to accommodate the self-represented parties, allowed each party to testify, in narrative form, on their own behalf. Although the judge stated that each party would be given one-half hour to offer such testimony, the father was permitted to begin his testimony a little before the court's 1 P.M. recess, and was given thirty more minutes to testify when trial resumed. The father was also permitted to directly examine or cross-examine the other witnesses, including the mother. Finally, at the conclusion of the trial, the father was permitted to offer several documents into evidence which he did not offer while testifying or examining witnesses, subject to the mother's notations of objections. The father has not demonstrated how the full day of trial was insufficient to present his case. As such, we cannot properly say that the judge abused his discretion or deprived the father of due process by imposing time limits on each party's narrative testimony, or otherwise. See Babaletos, 493 Mass. at 468.³

We vacate the judgment on custody to the extent necessary to remand the matter to allow the judge to reconsider the order excluding the video recording, including viewing the video recording, and, to the extent the judge deems it necessary, to hear argument from the parties or take further evidence. The judge shall determine whether the video recording requires vacatur of the judgment and further proceedings, or any other order or orders. The judgment on custody is otherwise affirmed, and all terms of that judgment shall remain in effect as a temporary order, subject to any order to the contrary of the judge, pending the judge's ultimate determinations on remand. The judgment on contempt is affirmed.

So ordered.

FOOTNOTES

1.   A separate judgment, dated the same date, was issued on a related contempt action filed by the mother, in which the father was found in contempt for nonpayment of child support. Because the father's arguments on appeal relate only to child custody matters, and he did not challenge the judgment of contempt in his appellate brief, any claim of error regarding the contempt judgment is waived, and we affirm. We limit our discussion to the judgment awarding the mother custody. See Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 421 n.19 (2005) (argument not pressed on appeal waived).

2.   Although the self-represented father did not originally submit the full transcript to the court, according to an affidavit he submitted, he realized that it was his responsibility to transmit to us, not, as he had thought, something done automatically by the trial court. His motion for leave to file an amended five-volume appendix, which includes the full transcripts of the relevant proceedings is allowed.

3.   The mother's request for appellate attorney's fees is denied. To the extent that we do not address any remaining contentions by the father as to evidentiary rulings, the weight of the evidence, credibility determinations, the conclusions of the judge, procedural fairness, or the father's glancing allegations of “obstruction,” “interference,” “retaliation,” or “bias” by the judge and court staff, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).