ANDRES DOMINGUEZ v. MICHELLE DOMINGUEZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The father, Andres Dominguez, appeals from a judgment of modification of the Probate and Family Court dated October 28, 2024, as amended on March 21, 2025, nunc pro tunc to October 28, 2024, that entered following a two day trial. The judgment granted the mother, Michelle Dominguez, sole legal custody of the parties’ child for the purposes of decision-making pertaining to the child's education and any behavioral or mental health treatment. The father primarily argues that the judge erred in failing to conduct a removal analysis pursuant to G. L. c. 208, § 30, given that, at the time of the judgment, the child was enrolled in a Massachusetts public school and the mother resided in New Hampshire. We affirm.

Background. The parties married in 2003 and had one child who was eleven years old at the conclusion of trial.

A divorce judgment entered on September 13, 2018, and became absolute on December 13, 2018. The divorce judgment incorporated but did not merge the parties’ separation agreement (agreement), except for provisions related to the child. Pursuant to the agreement, the parties agreed to share legal and physical custody of the child and that the child would spend time outside of school equally at the father's Massachusetts residence and the mother's New Hampshire residence according to the parenting time schedule laid out in the agreement. The parties agreed to share the cost of the child's private school. The parties also agreed that “[n]either party shall permanently remove the child from the Commonwealth of Massachusetts or the State of New Hampshire without the prior consent of the other or by Order of the Probate Court obtained pursuant to G. L. c. 208, § 30.”

On January 23, 2023, the mother filed a complaint for modification, seeking sole legal and physical custody of the child, permission for the child to reside with her in New Hampshire, authority to make all educational and medical decisions for the child, an order prohibiting the father from interfering with the child's care providers, an order that the father submit to a psychological evaluation, termination of the mother's child support obligations, and an order that the father pay child support.

The father filed an answer and counterclaim seeking sole legal custody of the child, primary physical custody, an order prohibiting the mother's first cousin from being in the child's presence, an order that the child be enrolled in therapy, and an order that the mother pay child support.²

After two days of trial in July and September 2024, the trial judge issued, in writing, the relevant procedural history, findings of fact, rationale and further findings, and conclusions of law. The trial judge denied the mother's request for sole physical custody of the child, but awarded the mother sole legal custody for the purposes of certain educational decision-making and any behavioral health or mental health treatment. The trial judge later issued an amended judgment clarifying that “for school year 2025-2026 and subsequent school years thereafter,” the mother's educational decision-making authority would include “where [the child] shall be enrolled in school.”³ The father appeals.

Discussion. 1. Removal. The father asserts that the trial judge committed an error of law in failing to conduct a removal analysis pursuant to G. L. c. 208, § 30. Because a removal analysis is not required by statute or by the agreement, we disagree.

“General Laws c. 208, § 30, governs removal from the Commonwealth of children of divorced parents where one parent seeks to relocate without the consent of the other parent.” Miller v. Miller, 478 Mass. 642, 646-647 (2018).⁴ In this case, the mother does not seek to relocate. As of the date of the agreement, September 13, 2018, the mother was living in Seabrook, New Hampshire; after the divorce, she moved to Burlington, Massachusetts; and in December 2019, she moved to Chester, New Hampshire, where she currently resides. The parties agreed to share physical custody of the child, and since 2019 the child's time outside of school has been divided equally between Massachusetts and New Hampshire. By granting the mother the ability to choose the child's school, but denying her request for sole physical custody and preserving the parties’ parenting plan, the trial judge merely allowed the mother to move the child's schooling from Massachusetts to New Hampshire. This arrangement did not change the child's travel time between her parents’ homes, or the amount of time she resided with her father in Massachusetts. In short, because the trial judge's ruling did not reduce the father's equal parenting time, it did not implicate the purpose of the removal statute, “to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationships.” Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775 (2006).

Moreover, the agreement contemplated that the child would have interstate travel and residence. It provides that “[n]either party shall permanently remove the child from the Commonwealth of Massachusetts or the State of New Hampshire without the prior consent of the other or by Order of the Probate Court obtained pursuant to G. L. c. 208, § 30” (emphasis added). We read this language to establish that the parties agreed that a removal analysis would be necessary only if one party sought to remove the child permanently from both Massachusetts and New Hampshire. Therefore, because the mother did not seek to remove the child from New Hampshire, even under the parties’ agreement, the trial judge was not required to conduct a removal analysis.

2. Sufficiency of evidence. While the father's brief is not a model of clarity, in an abundance of caution, we address his apparent claim that there was insufficient evidence to support awarding the mother sole legal custody of the child for the purposes of educational decision-making, including where the child would go to school, and any behavioral or mental health treatment.

“Upon a complaint after a divorce, filed by either parent ․, the court may make a judgment modifying its earlier judgment as to the care and custody of the minor child[ ] 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 child[ ].”

G. L. c. 208, § 28. “In determining whether there has been a material change in the parties’ circumstances, the probate judge must weigh the relevant circumstances; the resolution of the various factors rests with the judge's sound discretion.” Bush v. Bush, 402 Mass. 406, 411 (1988). “The judge is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit” (citation omitted). Smith v. McDonald, 458 Mass. 540, 547 (2010). “When determining ․ modifications of custody awards based on changed circumstances, the guiding principle always has been the best interests of the child[ ].” Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996).

We review the judge's decision for an abuse of discretion. See Pierce v. Pierce, 455 Mass. 286, 293 (2009).

“We examine (1) whether the factual findings are clearly erroneous, giving ‘due regard ․ to the opportunity of the trial court to judge of the credibility of the witnesses, Mass. R. Dom. Rel. P. 52(a) (2008); (2) whether there were errors of law; and (3) whether the judge appears to have based her decision not on sound discretion, but on whimsy, caprice, or arbitrary or idiosyncratic notions” (quotations and citation omitted).

Id. “The standard of review reflects substantial, but not unlimited, deference to the judge who saw the witnesses and heard the evidence.” Id. “The decision of which parent will promote a child's best interests is a subject peculiarly within the discretion of the judge” (quotation and citation omitted). Ardizoni, 40 Mass. App. Ct. at 738.

The record amply supported the trial judge's conclusion that it was in the best interest of the child to award the mother sole legal custody of the child for the purposes of educational and mental health decision-making. Primarily, the judge reasonably relied on the well-supported opinion of the guardian ad litem (GAL). The trial judge credited the GAL's observation that the father's conduct, in some instances, has negatively affected the child. Specifically, the judge considered the GAL's opinions concerning the impact of the father's e-mail messages to the staff of the school, which the child attended from preschool to partway through fourth grade; the father's routine of studying with the child during the summer; and the father's previous infliction of physical punishment on the child when she was disobedient. The judge also credited the GAL's observation that the mother was well-informed about the child's functioning, whereas the father's judgment on the issue was skewed by a belief that there was a conspiracy to give the child an incorrect diagnosis. Finally, the trial judge reasonably found that the mother had made efforts to communicate with the father, but that the father's unsupported beliefs about the mother's relationship with her cousin precluded the parties from communicating and cooperating in order to make joint decisions in the child's best interest.

We perceive neither clear error in the judge's evaluation of the evidence, nor an abuse of discretion in her determination of what was in the child's best interest. See Pierce, 455 Mass. at 293.⁵ ,⁶

Judgment of modification affirmed.

FOOTNOTES

2.   The father also sought an order that the child undergo a neuropsychological evaluation. The parties agreed to that prior to trial.

3.   The trial judge denied the mother's request for sole physical custody of the child, ordered that the parties continue to share legal custody for the child's medical needs and religious practices, ordered that the father “shall have unfettered access to [the child's] medical and academic records and providers,” ordered that the mother enroll the child in individual therapy, and denied the mother's request to terminate her payment of child support to the father, instead increasing her child support obligation to $387 monthly. Because neither party addresses these rulings on appeal, we do not discuss them further.

4.   General Laws c. 208, § 30, provides in relevant part, “A minor child of divorced parents who is a native of or has resided five years within this commonwealth ․ shall not ․ be removed out of this commonwealth ․ without the consent of both parents, unless the court upon cause shown otherwise orders.”

5.   In the table of contents of his brief, and his summary of argument, the father briefly raises two additional arguments: (a) that the trial judge erred in finding that the parties agreed to raise their child in the Christian faith and (b) that the trial judge erred by not making findings on which school system was better suited to address the child's educational needs. Because the father made no more than “passing reference in the text” to these arguments and offered no citation to the factual record or legal authority in support, they are waived. Popp v. Popp, 477 Mass. 1022, 1023 n.1 (2017). See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). The father's repeated references to his request for letters rogatory to question the mother's cousin, which is not among his listed arguments, suffers from the same infirmities.

6.   The mother's request for attorney's fees is denied.