Custody disputes are never easy for the parties, as both parents presume they have the best interests of the child in mind.
When a complaint for modification is filed seeking to modify a custody arrangement, (legal, physical or both,) the burden to be met is that there is a material change in circumstances.
Recently, my client was the physical custodial parent and dad (non custodial) was seeking to expand the amount of visitation he had with the child from a limited schedule of afternoon visits to a schedule which included overnights.
Dad argues Mom is too controlling and keeps the child from him out of spite. Further he believes that the child is now older and therefore should be able to spend overnights with him. Mom is concerned about Dad's ability to parent the child, as he has not been consistent in parenting and has had supervised visits with the child for several years. Further, Dad does not communicate well with Mom and has filed to complete his Parent Education Classes, (as per the Standing Orders.)
Dad files a Complaint seeking to modify the custody and visitation schedule. After much consideration and research of the ALI-ABA guidelines, case law, treatises and the expert opinions on parenting schedules, the strongest argument that Dad should not be allowed his relief boiled down to Dad failed to meet his burden to show there was a material and substantial change in circumstances, and further, the alteration of the schedule is not in the best interest of the child.
A trial judge in a divorce litigation has broad discretion to fashion a visitation arrangement that is in the best interests of the children. Austin v. Austin, 62 Mass.App.Ct. 719, 722 (2004), fur.app.rev. granted on other grounds, 443 Mass. 1107 (2005). Pursuant to G.L. c. 208, s. 28, the initial judgment can only be modified if a "material and substantial change in circumstances have occurred" and an alteration is necessary in the best interest of the children. Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 777-778 (2005). Thus, a judge is limited in her discretion to modify a previous judgment. Cooper v. Cooper, 62 Mass.App.Ct. 130, 134 (2004). Any incidental alteration does not justify a change in a visitation or custody arrangement. The change must be both material and substantial and of sufficient magnitude to warrant an adjustment.
Rosenthal v. Maney, 51 Mass.App.Ct. 257, 261-262 (2001). Once a custody order is in place, it should not be subject to successive efforts to undermine or alter it in various ways. Otherwise, there can be no element of finality to any custodial order. See Keith v. Keith, 66 Mass.App.Ct. 1111, 1111 (2006).
There is an increasing recognition of the psychological impact that divorce has on children. Thus, courts recognize the importance of maintaining stability and continuity. "Stability is itself of enormous benefit to a child and any unnecessary tampering with the status quo simply increases the risk of harm to the child." Custody of Kali, 439 Mass. 834, 842-843 (2003). Therefore, it is critical that probate and family court judges act with care before altering visitation just because one of the parties desires a change.
In this case, the husband has not demonstrated the existence of any substantial and material change. The fact that the daughter has aged a little bit is merely an incidental alteration. For example, in Keith, the court held that the trial court erred in modifying a visitation schedule by awarding a father overnight visits. The court reasoned that the child's change from part-time to full time elementary school was not a substantial change that warranted such modification. The court rejected the father's argument and held that increase in educational responsibility as a child advances in school was an obvious and natural occurrence that cannot be considered a development of any importance; particularly after less than one and one-half years after the earlier judgment.
In my present example, the father can try to claim that a new arrangement would better serve the interests of the children based simply on the fact that the children's needs and interests change as they age. However, if that were the sole fact that could justify an annual modification, courts would then become perpetually involved in litigation over the alteration of visitation arrangements. This is precisely why the standard of "material and substantial" is so high. Cooper, 62 Mass.App.Ct. at 134.
Granting the father's modification will not be in the daughter's best interests because the father could be encouraged to return to court on successive occasions merely because his daughter has grown slightly older. Indeed, he is currently not compliant with a court order, but then seeks to have the court assert its authority over the mother. The father's method of seeking modifications to obtain his own way, but defying a court order, causes unnecessary instability in the custodial relationship and imposes an additional burden on the both the courts and the mother. See Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 781 n.22 (2005).
Additionally, granting unsupervised overnight visits is entirely inconsistent with the child's best interests. In this case, the parties cannot effectively communicate. Therefore, the introduction of unsupervised overnights will introduce yet another element of disagreement which is likely to generate opportunities for further conflict. This is problematic because the father has not even taken the appropriate parenting classes (where, presumably, he would learn strategies to effectively communicate with the mother). That result directly contradicts a desire to maintain stability and continuity. The best interest of the daughter in this case is stability, not conflict.
A modification of a visitation order, absent an agreement of the parties, should not be entertained after such a short period of time unless there are findings that articulate a significant change and demonstrate why alterations in visitation serve the children's best interest. Compare, McMahon v. McMahon, 1 Mass.App.Ct. 647,648-649 (1973) (finding that mother's unjustified anxiety about father's care that caused friction and obstruction of visits justified a change designed to reduce tensions.) Hinds v. Hinds, 329 Mass. 190, 191-192 (1952) (Father's disruptive actions with malevolent intent warranted change in custody.) Here, the father fails to articulate why the introduction of unsupervised overnight visits would benefit the daughter at this time. Rosenberg v. Merida, 428 Mass. 182, 191 (1998).
Even if the mother could be faulted by her approach to dealing with the father in this circumstance, any failure on her part to appropriately communicate with the father is not, in itself, a reason to expand the father's visitation time. The welfare of the children is the controlling consideration in a custody issue and an established arrangement should not be changed as a means to discipline either party. Stevens v. Stevens, 337 Mass. 625, 627 (1958).
by: Julie A. Dialessi-Lafley, Esq.
