Guardianship of Yushiko

• Decision Date: 08 June 2000
• Docket Number: P-1922
• Citation: 735 N.E.2d 1260
• Parties: (Mass.App.Ct. 2000) GUARDIANSHIP OF YUSHIKO. <A HREF="#fr1-1" name="fn1-1">1 No.: 99- Argued:
• Court: Appeals Court of Massachusetts

735 N.E.2d 1260 (Mass.App.Ct. 2000)

GUARDIANSHIP OF YUSHIKO.¹

No.: 99-P-1922.

Massachusetts Court of Appeals Barnstable County

Argued: June 8, 2000.

Decided: October 3, 2000.

Present: Porada, Gillerman, & Laurence, JJ.

Guardian. Probate Court, Guardian. Parent and Child, Custody. Minor, Custody.

Petition for guardianship filed in the Barnstable Division of the Probate and Family Court Department on September 10, 1997.

A petition for removal of guardians, filed on December 11, 1998, was heard by Robert A. Scandurra, J.

Herbert F. Lach, Jr., for the father.

Mark D. Carchidi for the guardians.

PORADA, J.

The father appeals from a judgment of the Barnstable Probate and Family Court denying his petition to remove as guardians of his minor daughter the child's grandparents.² The father contends that many of the judge's findings are clearly erroneous as they are not supported by the evidence and that the judge's ultimate conclusion, that, even without a determination of parental unfitness, the best interests of the child require that the child remain with her guardians, is not supported by clear and convincing evidence. We reverse.

We summarize those findings of the judge which are uncontroverted and the proceedings in this case. The father and mother of the child were married on September 17, 1995. The child was born on June 7, 1996. The father and mother separated on August 28, 1996, at which time the father left the mother with the child. At that time the father, mother, and child resided with the guardians, in whose home the child has resided ever since. A report of neglect of the child by the mother caused the Department of Social Services (department) to conduct an investigation. As a result of that investigation, in which the father did not participate, the department recommended that the maternal grandparents file a petition for guardianship of their granddaughter. Both the mother and the father assented to the allowance of the petition. The petition was granted on September 12, 1997. Although the grandparents had physical and legal custody of the child, the father did exercise his visitation rights with the child. At first, the visitation was sporadic, but for a period of many months preceding the petition for removal of the guardians, the father exercised overnight visitations every weekend. On September 20, 1998, the guardians advised the father that the step-grandfather had a job opportunity in Florida which would require him to relocate to Florida. They then discussed the father's possible relocation to Florida and changes in visitation. On September 23, 1998, the father assented to the relocation. The guardians made plans to move to Florida. Immediately before they did so, the father changed his mind about their move, apparently at the urging of his family members. On December 11, 1998, the father filed a petition for removal of the grandparents as guardians and requested a restraining order precluding the guardians from removing the child from the Commonwealth. The restraining order was denied. The guardians and child now reside in Florida where the father has been permitted to visit with his daughter.

We address first the standard applied by the judge in reaching his ultimate conclusion in this admittedly difficult case. The judge properly recognized that the dispositive issue in this case is whether the father was currently fit to further the welfare and best interests of his daughter. Bezio v. Patenaude, 381 Mass. 563, 576 (1980). Guardianship of Clyde, 44 Mass. App. Ct. 767, 772 (1998). Nevertheless, in deciding this issue, the judge focused chiefly on the best interests of the child. He determined that the emotional, financial, and physical stability that the guardians have provided the child, evidenced by her excellent physical and emotional state, mandated that the child's custody remain with her guardians. He based that determination in part upon "the emotional well being and potential for emotional distress that [the child] may suffer and has exhibited to some degree during the time after visitations with the Father and his extended family, and the fact that [the child's] station in life would not be furthered by a return to live with her father." The emotional distress to which the judge referred rested on his finding that the child experienced stuttering problems and physical manifestations of emotional upset upon her return from visitation with her father and that those episodes occurred more frequently prior to the move to Florida. However, there is nothing in the evidence to suggest that the emotional distress experienced by the child after visits with her father was caused by those visits rather than the child's anxiety over the move to Florida. Nor was there evidence that the return to her father would cause the child severe emotional trauma. Cf. Wilkins v. Wilkins, 324 Mass. 261, 263 (1949). The judge's reasoning that the child's station in life would improve if she remained with her guardians is also problematic. That the guardians can do more for the child than her father or that the father's income is less than that of the guardians is of little consequence in considering what is in the child's best interests. Richards v. Forrest, 278 Mass. 547, 554 (1932). Gordon v. Gordon, 317 Mass. 471, 476 (1945). See Custody of a Minor, 389 Mass. 755, 765-767 (1983) ("[a] comparison of the advantage the prospective custodian may offer to the child with those that may be offered by the natural parents is inappropriate").

Of greater import, however, is the judge's failure to recognize that the best interests of the child cannot be determined separate and apart from a determination of the current fitness of the father. Bezio v. Patenaude, 381 Mass. at 576-577. "The resolution of any custody dispute involving a . . . parent necessarily begins with the premise that parents have a natural right to the custody of their children." Guardianship of Clyde, 44 Mass. App. Ct. at 772, quoting from Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 587 (1981...