E.K. v. S.C.

• Decision Date: 12 May 2020
• Docket Number: No. 18-P-1650,18-P-1650
• Citation: 97 Mass.App.Ct. 403,148 N.E.3d 414
• Parties: E.K. v. S.C.
• Court: Appeals Court of Massachusetts

97 Mass.App.Ct. 403

148 N.E.3d 414

E.K.

v.S.C.

No. 18-P-1650

Appeals Court of Massachusetts, Essex..

Argued January 3, 2020

Decided May 12, 2020

Robert E. Curtis, Jr., for the mother.

Christine A. Faro, for the father.

Present: Hanlon, Blake, & Hand, JJ.

BLAKE, J.

In this custody modification, we consider the standard to be used when a noncustodial parent, who is living out-of-State, seeks custody of a child and permission to move the child out-of-State. Following a trial in the Probate and Family Court, an amended judgment issued awarding the father, E.K., sole legal and primary physical custody of the parties' minor child. That judgment also permitted the father to move the child to New Hampshire.¹ The mother, S.C., appeals, claiming that the judge failed to enter findings of fact on a temporary order permitting the father to move the child out-of-State, erred in failing to reopen the evidence, and did not adequately consider the child's best interests. We affirm.

Background. We summarize the relevant facts as found by the judge after five days of trial, supplemented by uncontested evidence from the record. The parties are the never married parents of one child, born in December 2007. A judgment of paternity, which incorporated the parties' stipulation, entered on February 26, 2010. Among other things, that judgment awarded the parties shared legal custody and the mother primary physical custody of the child, and the father had parenting time one weeknight per week and every other weekend. It also included a prohibition on removing the child from the Commonwealth "for purposes of changing his domicile without the express written consent of the other or an order of the Essex Probate and Family Court." See G. L. c. 208, § 28. At that time, both parties lived in Massachusetts.

In March 2010, the father moved to New Hampshire. At the time of trial, he was living in Bedford, New Hampshire with his fiancée and her children, and was working in Boston. After the move, the father did not exercise his weeknight parenting time regularly but continued to see the child on weekends according to the schedule.

The child has significant educational and medical needs. In 2014, he was diagnosed with attention deficit/hyperactivity disorder (ADHD) and disruptive mood regulation. Beginning in October 2014, he was enrolled in a specialized educational program that provided emotional and educational support and a "home base" for the child each day. The child also had a pediatric psychologist and therapist, and was prescribed Tenex

and Risperdal . He attended therapy regularly between September 2012 and June 2014, and then he restarted therapy in February 2016.

Beginning in or about November 2015, the mother's interactions with the school became problematic. She was disruptive at school events, made demands of the staff, and tried to remove the child from a classroom. On January 26, 2016, the father filed a complaint for modification, alleging that the mother was acting contrary to the health, welfare, and education of the minor child by unilaterally stopping the child's medication, withdrawing him from a special needs school program without the father's consent, and maintaining uninhabitable living conditions. On February 17, 2016, the mother filed an answer and counterclaim for modification, seeking sole legal custody.

Throughout 2016, the mother made numerous claims about the child's school, including that the child was being held illegally and that the program violated his rights. As an example of the mother's escalating conduct at the school, in March 2016, she became so upset and refused to abide by the principal's requests that the principal was forced to call 911 and the school was placed in lockdown. The mother agreed to leave the school after the police arrived, but later that day she brought the child to the police department and asked that an officer interview him regarding an incident at school. During the interview the child claimed he had been assaulted by a teacher two days earlier. After a police investigation, the allegation was determined to be unfounded.

In addition to her oppositional approach to the school, the mother was disorganized and frequently late -- the child was tardy or absent seventy-two times between kindergarten and second grade, and photographs of her home revealed "an inordinate amount of clutter and disorganization."

The Department of Children and Families (DCF) became involved with the family in 2008 and had intermittent contact with them over the years. As of January 2016, nine G. L. c. 119, § 51A, reports (51A reports) were filed involving the parents. The mother was the subject of five 51A reports; all were screened in for investigation, and three were supported for abuse. The father was the subject of four 51A reports; only one was screened in, but it was unsubstantiated after an investigation.²

Eventually, the child's therapist informed the parents that she could no longer serve as his therapist. She explained that she believed that the mother was constantly trying to get the child to report negative things about his father, and that this was compromising her role as the child's therapist.³

In March 2016, two more 51A reports were filed. One alleged that, while the child was in the hospital after threatening to harm himself, he said that his mother did not give him his ADHD medication on a regular basis and that he had missed school because he stayed up all night with his mother. The second report alleged that the mother sexually abused the child because he attempted to rub his buttocks on a teacher's legs and that he slept in the same bed as the mother. DCF supported the allegations of abuse by the mother and opened the case for services.

DCF concluded that the mother's mental health concerns interfered with her ability to parent the child. This was evidenced by the fact that she discussed topics with the child that were not age appropriate, and the child missed mental health appointments and failed to take prescribed medication. DCF also concluded that the parents were unable to coparent and recommended support services.

During the pendency of the case, the judge appointed a guardian ad litem (GAL) who filed two reports. In the first report, the GAL offered criticism of each parent, but found that the father set reasonable limits with the child and held him accountable for his behavior. The GAL also expressed concern that the father had not adjusted his work schedule to spend more time with the child. As to the mother, the GAL expressed concerns that the mother was sharing a bed with the child who was eight years of age, and that she failed to regularly administer the child's medication or bring him to medical appointments. He also expressed concern about the mother's persistent negative comments in the child's presence about the child's school and his father. Finally, he noted that the child was frequently late for school.

Ultimately, the GAL recommended that the mother retain primary physical custody of the child, "unless or until" the father provided the judge with a proposed plan for addressing the child's needs if the child were moved to New Hampshire. The GAL also recommended that, irrespective of who had physical custody of the child, the father should have legal custody and make all educational, health, and therapy decisions, with the mother having access to the information.

On February 1, 2017, shortly before the trial was to start, the GAL filed a second, updated report. The GAL reported that, since his first report, the father had moved in with his fiancée; she worked in the New Hampshire school system as a speech and language pathologist and was available to care for the child after school. In addition, the father provided the GAL with information about the school⁴ the child would attend in New Hampshire, and the names of mental health providers for the child.

The GAL also provided updated information about the child. In September and October 2016, the child was asked to leave two afterschool programs due to his aggressive behavior. He also noted that the child was no longer sleeping in the same bed as the mother, but his concerns about the mother's mental health remained unabated. The GAL reported that the mother continued to make unsubstantiated allegations about and disparage the father and the child's school, and she did not hold the child accountable for his behavior. The GAL recommended that the father be granted sole legal and physical custody of the child with permission to move him to New Hampshire.

The trial and posttrial motions. The trial was held over five nonconsecutive days between February 8 and May 22, 2017.⁵ On June 12, 2017, after the close of evidence, the father filed an ex parte motion for temporary orders pending judgment. He requested sole legal and physical custody, permission to move the child to New Hampshire, suspension of his child support obligation, and supervised parenting time for the mother. He alleged that since the close of the evidence, the mother had been involved in a number of incidents involving the child and the child's school; that she "demonstrated an inability to cooperate, engage in meaningful discussion, or listen to others"; and that DCF was involved.

The judge did not act on the motion ex parte. Rather, she scheduled the motion for a hearing on short notice. Following that hearing, at which both parties appeared with counsel, the judge granted the father temporary physical custody and authorized him to remove the child to New Hampshire and enroll him in school. The judge also established a parenting schedule for the mother. She did not change legal custody at that time, nor did she order supervised parenting time. The judge did not issue findings of fact contemporaneously with the temporary order. The mother filed a petition for interlocutory relief, pursuant to G. L. c. 231, § 118, that was dismissed with a directive that the mother...