Youmans v. Ramos

Decision Date22 June 1999
Citation429 Mass. 774,711 N.E.2d 165
PartiesDonald R. YOUMANS v. Cynthia M. RAMOS.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Michael J. Traft, Boston, for the plaintiff.

Robert L. Rice, Jr., Gardner (Gregory V. Roach, Fitchburg, with him) for the defendant.



We consider in this case whether, attendant to a judgment awarding a father custody of his then eleven year old daughter, a judge in the Probate and Family Court may order visitation between the child and a guardian with whom she had lived for many years, and who had long filled the role of the only parent for the child.

In 1997, Donald R. Youmans (father), a resident of Georgia, sought legal and physical custody of his daughter, Tamika E. Youmans. Tamika, who was born in 1986 had lived with Cynthia M. Ramos, her maternal aunt, in Massachusetts for most of her life. The aunt, previously appointed as Tamika's permanent guardian, sought to retain custody of Tamika. After a trial, the judge vacated the aunt's guardianship, awarded custody of Tamika to her father and, without request from the parties, ordered that Tamika visit her aunt during a school vacation each winter and for six weeks each summer, at the father's expense. He also ordered the father to permit and encourage weekly telephone contact between Tamika and her aunt.

The aunt does not appeal from the custody determination. The father challenges so much of the judgment as concerns visitation and other contacts between the aunt and his daughter. He argues that, in the absence of a statute expressly permitting the order of visitation privileges to a "nonparent," the judge had no legal authority to order the visitation, and that the order violates his liberty interest, protected by the Federal and State Constitutions, in raising his child without State interference. In the alternative, he challenges the extent of the visitation and the imposition of its costs on him. We affirm the judgment of the Probate and Family Court.

1. Background. We summarize the facts as found by the judge or stipulated by the parties. Tamika Youmans and her twin, Tisha, were born on March 31, 1986. Their parents, Luz Ramos (mother) and Donald Youmans, never married. Youmans and the mother met in 1982 while he was serving in the military and stationed at Fort Devens in Massachusetts. When the father was transferred to Fort Benning, Georgia, in 1984, the mother visited him, but never moved to Georgia. Tamika and Tisha were born prematurely in New York. 1 The father obtained leave and visited them in the hospital. The twins and their mother lived for a few months in Georgia before returning to Massachusetts to live near the mother's sister, Cynthia Ramos (aunt). But for those initial few months in Georgia, Tamika has lived only in Massachusetts, almost entirely with her aunt. The father has never lived in Massachusetts with his daughter.

Tisha died on February 19, 1988. She was never a healthy child, and the aunt took care of Tamika from infancy so that the mother could care for Tisha. The mother died when Tamika was five years old, at which time the aunt became Tamika's sole caretaker. 2 According to the aunt's undisputed testimony, Tamika learned to walk, to talk, and to read in her care; the aunt arranged for Tamika's medical care; accompanied her to all of her appointments; oversaw her progress at school; took her to church every Sunday; and arranged for and participated in all of her extracurricular activities. Tamika refers to the aunt as her "mom," and to the aunt's biological children as her "brothers" and "sisters." The aunt testified that she has cared for Tamika "like a child of my own." She was in every sense Tamika's de facto parent. 3

While the mother was alive, the father provided financial support for his twin daughters by an allotment from his military pay. In 1987, the father was transferred from Georgia to Germany. He returned to Massachusetts for five days on emergency leave to attend Tisha's funeral in 1988, at which time he also saw Tamika. He next saw Tamika in 1990 when he again visited Massachusetts. During that two-week visit, he and the mother executed a domestic relations agreement regarding Tamika's custody, support, and medical insurance. They agreed that they would share legal custody of Tamika, that the mother would continue to have sole physical custody of her, and that the father would have reasonable visitation rights. 4 They further agreed that, if the mother were to predecease the father, he would assume physical custody of Tamika.

On May 12, 1991, Tamika's mother died. Because it is relevant to our holding, we describe in some detail the various actions and inactions relating to Tamika's custody after the death of her mother. On May 17, 1991, the aunt filed a petition for guardianship of Tamika and was appointed temporary guardian by a judge in the Probate and Family Court. 5 When the father learned of the mother's death, he came to Massachusetts from his military station in Europe on emergency leave and, on May 28, 1991, filed in the same court a separate equity petition for custody of Tamika. 6 The next day a judge issued a temporary order of visitation between the father and Tamika, appointed a guardian ad litem for the father, declined to vacate the aunt's temporary guardianship of Tamika, and declined to grant the father's request for temporary custody. The father never challenged any aspect of that order.

For reasons that are not explained, neither the father nor the father's counsel appeared at the next hearing on October 31, 1991, and the judge continued the temporary guardianship of the aunt. A report filed in November, 1991, by the father's guardian ad litem reported that the father was still living in Europe and, in a telephone conversation with his guardian ad litem, had expressed a desire for custody of Tamika. 7 The report also stated that the father was eligible for leave in June, 1992, and had requested a hearing on custody at that time. On July 14, 1992, after continuances on February 20, 1992, and April 14, 1992, the aunt was appointed permanent guardian of Tamika. The father was not present at that hearing and his counsel did not appear. The father never challenged that order.

From July, 1991, until June, 1992, the father was stationed in Iraq in his capacity as a member of the armed forces in the Gulf War. 8 After returning briefly to Germany, in 1993 the father was transferred to the United States, and received an honorable discharge from the army in 1995. In the interim he had married a German national; his wife and their son moved with him to Georgia. The father made no attempt to obtain custody of Tamika, and continued to provide financial support for her by sending his payments to the aunt. 9 The father next saw Tamika in the summer of 1994, when she came to stay with him for two weeks. 10 She returned again for two visits of approximately ten days each in December of 1995 and the summer of 1996. In April, 1997, Tamika visited her father at his home in Georgia for five days.

In March, 1997, when Tamika was eleven years old, the father filed this, his second, petition in equity for custody of Tamika. He sought to terminate the aunt's guardianship of Tamika, and requested "temporary orders to facilitate the transfer of [Tamika's] custody" to him. The aunt opposed the petition. She did not seek visitation privileges in the event custody was awarded to the father. That same month, a judge issued a temporary order in this case, 11 incorporating a stipulation of the parties that provided for the father's visitation with Tamika in Georgia during the April school vacation and the summer months, and for reasonable telephone contact between father and daughter.

The trial was held on July 14, 1997. With the agreement of the parties, the judge interviewed Tamika in his chambers. There is no transcript of that interview. On August 29, 1997, the judge issued his findings of fact, conclusions of law, and judgment. He found that the father had maintained a "continuing presence" in Tamika's life, had provided financial support for her, and over the years had telephoned, written to, and periodically visited Tamika. He made further findings concerning the father's financial well-being, his living arrangements in Georgia, his planned second marriage, and his planned child care and other arrangements for Tamika. He also found that there was no evidence that the father "is unfit to assume full custodial responsibilities of Tamika." The judge vacated the aunt's appointment as permanent guardian of Tamika. However, he found that it is in Tamika's best interests to maintain contact with the aunt and the aunt's family, and, "[i]n light of the role of caretaker and guardian that [the aunt] has played in the first eleven years of Tamika's life," ordered "liberal visitation and contact" between Tamika and her aunt. He ordered the father to assume the costs of visitation because the father's financial resources "greatly exceed" those of the aunt.

2. The statutory challenge to the visitation order. In Massachusetts no statute expressly authorizes an aunt or former guardian of a minor child to seek visitation privileges with the child. The father argues that a judge may grant visitation rights only to persons specifically authorized by statute to receive them, and that the judge had no legal authority to order visitation between Tamika and her aunt. He points to G.L. c. 209C, pertaining to children born out of wedlock. Section 10 of that chapter, 12 he says, provides the exclusive legislative authority for custody determinations of children born out of wedlock, and he observes that G.L. c. 209C provides no authority for visitation privileges for adults other than a biological parent. 13

The father did not assert his claim for...

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