Opinion
21-P-495
04-07-2022
Georgia KRITIKOS v. Nicholas DEROSA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The mother appeals from a modification judgment of the Probate and Family Court that awarded the father sole legal and physical custody of their child. On appeal, the mother argues that the judge erred in awarding custody to the father (1) because the father -- who lived in New Hampshire during the entire pendency of this case -- did not specifically plead to remove the child from Massachusetts, nor meet the showing required for removal, and (2) because there had been no substantial change of circumstances that would warrant a modification of custody. We affirm.
Background. The mother and the father, who were never married, have one child together, born in 2007. Throughout the relevant time period, the mother lived in Haverhill, Massachusetts, and the father in Salem, New Hampshire, which are adjacent municipalities. In September 2011, the Probate and Family Court awarded joint legal custody of the child to the parents, and physical custody to the mother. The court's order granted the father parenting time every Monday to Tuesday and Friday to Saturday. The parties had a positive coparenting relationship for several years, while the child split his time between his mother's home and his father's home. The child attended public school in Haverhill.
In February 2018, the mother filed a complaint for modification that sought to reduce the father's parenting time because he worked on Saturdays. The father filed a counterclaim seeking joint physical and legal custody, and authority to be the primary parent scheduling medical and educational appointments. In September 2018, the judge appointed a guardian ad litem (GAL) to evaluate custody and parenting time issues.
In December of 2018 the GAL filed an interim report with the court. In her report, the GAL described the mother as "uncooperative, scattered, inappropriate and at times dramatic or grandiose," and described the mother's communications to the father as "threatening, shrill and ... at times illogical." The GAL also identified posts made by the mother on the social media platform Facebook that contained similarly disturbing statements. When questioned about these posts, the mother told the GAL that she saw nothing wrong with them. The GAL report recommended that the mother undergo a psychological evaluation.
Two days after the GAL report was submitted, the father filed an emergency motion for temporary custody. After a hearing, on December 10, 2018, the judge issued a temporary order that, among other things: (1) gave the father sole legal and physical custody, (2) required the mother's parenting time to be supervised, and (3) directed both parents to complete psychological assessments as recommended by the GAL. The mother refused to complete the ordered psychological evaluation. In December of 2018, the father amended his counterclaim for modification to seek sole physical and legal custody of the child.
After trial concluded in October 2020, the judge awarded the father sole legal and physical custody in January 2021. The judge's findings and rationale identified several points of serious concern regarding the mother, including (1) her judgment regarding her child's medical care, (2) her troubling and illogical behavior, and (3) her refusal to undertake the court-ordered psychological evaluation. The judge further found that the child was demonstrating significant new neurological health issues, at least some of which subsided after legal and physical custody was transferred to the father.
The judge also found that the child had come out to his father as gay. The judge's findings noted that the father was supportive of the child's sexual orientation, while the child indicated he knew that his mother did not want him to be gay. The mother testified that if the child is gay, "I will not force my will on him."
Specifically, the judge found that at two years of age, the child demonstrated speech delays and that at the father's instigation, the child was referred to specialists and was diagnosed with autism. Nevertheless, the child's medical records reflected that from 2010 to 2016, the mother repeatedly denied that the child had been diagnosed with autism or showed any developmental concerns. The judge further found that the mother subjected the child to unnecessary allergen testing in 2018, against the advice of the child's physician.
The judge also found that in November 2018, while in the mother's care, the child reported to the mother that he heard a voice that told him to be bad. The child also reported to the GAL that he saw things that were not there, such as "chickens, explosions, [and] ghosts." The mother contacted the child's doctor, explained the situation, and wanted to discuss it during the child's next annual physical, which was three months away. The doctor advised the mother to bring the child into the emergency room for a crisis evaluation; the mother waited two days before doing so. The judge found that the mother did not inform the father about the child's reported hallucinations or the crisis evaluation.
The judge further found that "the record is replete with [the mother's] illogical and non-sensical communications." For instance, the mother told the GAL that she was acting as a journalist when she made the derogatory Facebook posts, although the posts bore no characteristics of journalism. The judge's response to the mother's illogical behaviors was to order the mother to complete a psychological evaluation, which the mother refused to do.
In her findings, the judge also rejected the mother's arguments that the father could not be awarded custody because he had not pleaded removal of the child to New Hampshire. The judge concluded that no such pleading was required because the father had lived in New Hampshire for many years, and thus was not seeking a change in location but rather a change in custody. This appeal followed.
Discussion. 1. Removal of the child from Massachusetts. The mother argues that the judge erred by granting custody to the father when he had not pleaded to remove the child from Massachusetts. The mother argues that under Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712 (1985), the judge was required to find that (1) removing the child to New Hampshire meets the "real advantage" test, and (2) that removal is in the child's best interests. She also maintains that she was prejudiced because she lacked notice of the intended removal, and therefore was not able to offer evidence regarding the relative benefits of the school districts in Massachusetts and New Hampshire. We disagree.
To begin, the mother had ample notice that the father was seeking to have the child live with him in New Hampshire. The father had lived in New Hampshire for years prior to the modification being initiated, and the father's pleadings clearly sought sole physical custody of the child. The child had lived with the father in New Hampshire for over a year prior to trial, since custody had been temporarily transferred in 2018. While it might have been better practice to specifically plead removal, under the circumstances, such a pleading was not required. The matter was tried against the backdrop that the father's requested relief would result in relocation to New Hampshire. See Mass. R. Dom. Rel. P. 15(b) (permitting pleading amendments to conform to evidence). See E.K. v. S.C., 97 Mass. App. Ct. 403, 414 (2020) (declining request for relief based upon "purely technical rather than substantive reasons").
As to the applicable legal standard for removal, our recent decision in E.K., 97 Mass. App. Ct. 403, is particularly instructive. In that case, the father lived in New Hampshire while the mother lived in Massachusetts. Id. at 404. The parents in E.K. shared legal custody of their child while the mother had primary physical custody. Id. We held in E.K. that when a judge transfers custody to a parent that is already living outside of Massachusetts, the judge must first assess: (1) whether the noncustodial parent's initial move out of state was designed to interfere with the existing custody arrangements, and then (2) whether the out-of-state parent is rooted in the community where he or she seeks to remove the child. Id. at 410-411. Following this analysis, the judge must then consider the best interests of the child -- as the judge would for any modification complaint. Id. at 411 ; G. L. c. 209C, § 20.
Under E.K., 97 Mass. App. Ct. at 410, the "real advantage" test of Yannas is inapplicable in circumstances where the judge transfers custody to a parent already living out of state, because the Yannas standard applies to custodial parents seeking to move with their children to a new jurisdiction. 395 Mass. at 705.
Although here the judge did not undertake the E.K. analysis explicitly, her findings are sufficient to justify removal. The judge found that the father had coparented with the mother successfully for many years while living in New Hampshire, and that he had not sought sole custody until after reviewing the GAL report, in 2018. Moreover, the mother did not dispute that the father had roots in New Hampshire. Thus, this is not a case where a parent has relocated in order to interfere with the other parent's ability to coparent the child.
The judge also found that it was in the best interests of the child to live with the father, rather than the mother. As described supra, the judge found many concerning behaviors by the mother that indicated she would not always act in the child's best interests. In contrast, the father has consistently looked out for the child's best interests, and has ensured that the child has received "appropriate medical and mental health care."
Finally, the mother was not prevented from presenting evidence regarding the child's schooling. The mother called the child's teacher as a witness, who testified that the child received services through his individualized education plan (IEP) at his school in Massachusetts, and that the child would have to change schools if the judge awarded physical custody to father. The mother was not prejudiced by the lack of a formal pleading requesting removal.
2. Custody order. The mother next argues that the judge erred because there had not been a change in circumstances since the prior custody order in 2011 that warranted modification. We are not persuaded.
The judge's "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." Mass. R. Dom. Rel. P. 52(a). To order a modification of custody, the judge must find that "a substantial change in the circumstances of the parties or the child has occurred" and that "modification is in the child's best interests." G. L. c. 209C, § 20. Here, there was evidence of a substantial change in circumstances. In particular, the GAL report contained considerable new information, including the mother's repeated illogical and overtly antagonistic behavior, her refusal to complete a psychological evaluation, and the child's distress in the mother's care -- visual and auditory hallucinations -- that the mother did not promptly address. These new developments since the 2011 custody order satisfy the test of a substantial change in circumstances.
The wife's other arguments "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Modification judgment dated January 25, 2021, affirmed.