Opinion
16-P-800
06-23-2017
Y.L.R. v. M.K.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following the breakdown of his eleven-year relationship with M.K., Y.L.R. filed a verified complaint in equity seeking a declaration that he is the de facto parent of M.K.'s minor children, John and Jane. A judge in the Probate and Family Court concluded after a trial that, while Y.L.R. has a substantial relationship with John, it would not be in either child's best interest for Y.L.R. to be a de facto parent. This appeal ensued. We affirm.
The children's names are pseudonyms. Y.L.R. also requested (1) shared legal custody and visitation with the children, (2) that the children's last names be changed to his, (3) access to the children's medical and school records, (4) an order compelling M.K. to attend Alcoholics Anonymous meetings and anger management classes, and (5) an order allowing him to retrieve personal property from M.K.'s home.
Background. The parties met through an online dating Web site in 2000. At that time, M.K. was married with one child, and Y.L.R. was living with a partner and her two children. In 2004, M.K.'s divorce was finalized, and she and Y.L.R. began to live together full time. Y.L.R. would assist with household chores, and occasionally he walked M.K.'s other son (not John) to school. Sometime after the summer of 2003, M.K. and Y.L.R. exchanged vows during a "ceremonial marriage" at their home. Although this was not a legal marriage, the parties considered themselves to be a couple, and M.K. legally changed her last name to add Y.L.R.'s last name, by hyphen, after hers.
Y.L.R. has not provided us with a transcript, as was his burden. See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1601 (1999); Mass.R.A.P. 8(b)(3)(ii), as amended, 428 Mass. 1601 (1998); Mass.R.A.P. 9(c)(1), as amended, 378 Mass. 935 (1979); Mass.R.A.P. 9(c)(2), as amended, 437 Mass. 1602 (2002); Doten v. Doten, 395 Mass. 135, 139 (1985). A transcript "shall be considered part of the record on appeal," Mass.R.Dom.Rel.P. 80(b), and Y.L.R. was required to transmit to us the certified copy received by the trial court on May 29, 2015. See Camillo v. Camillo, 31 Mass. App. Ct. 286, 291 (1991) ("[I]n a civil case, the record transmitted by the clerk of the lower court consists of ‘two certified copies of the docket entries,’ Mass.R.A.P. 9 [d], and no more"). In the absence of a transcript, we summarize the facts as the judge found them, giving "due regard" to her "opportunity ... to judge of the credibility of the witnesses." Mass.R.Dom.Rel.P. 52(a).
The judge found that the parties did not marry because Y.L.R., who was born a woman and was in the process of transitioning to a man, wanted to complete the transition before legally marrying.
In 2005, with Y.L.R.'s help and support, M.K. conceived John using artificial insemination. Y.L.R. attended some medical appointments with M.K., and he helped more with the other son's care. John was born on November 4, 2005, after a complicated delivery. Although he was given both parties' surnames, Y.L.R. could not legally be listed as the "father" on the birth certificate. Two years later, M.K. conceived a second child using the same sperm donor. On November 5, 2007, Jane was born. Y.L.R. was present during the birth, and he cut the child's umbilical cord. Like her brother John, Jane was given both parties' surnames, but Y.L.R. is not listed on the birth certificate. After Jane was born, the parties mailed birth announcements that identified M.K., Y.L.R., the other son, and John as the "Proud Family."
Y.L.R. did laundry, mowed the lawn, prepared meals for the other son, and helped him with his homework while M.K. was recovering from John's birth. Y.L.R. was very involved in John's care, especially after the child was diagnosed with autism. However, Y.L.R. was much less involved in Jane's care. Y.L.R. did not engage in any meaningful employment during the relationship, and he made minimal financial contributions to the household or to the children.
In fact, M.K. hired a friend of Y.L.R.'s to care for Jane during the day while M.K. was at work, even though Y.L.R. was at home during this time.
At the beginning of and throughout the relationship, Y.L.R. represented to M.K. that he had terminal stomach cancer. The judge found that Y.L.R. never suffered from cancer, terminal or otherwise, and that he knowingly fabricated the claim to explain his failure to maintain regular employment, his alcohol use, and his frequent absences from the home. While Y.L.R. denied ever stating that he suffered from cancer, multiple witnesses, including M.K., testified that he had made such claims. Y.L.R. admitted to abusing alcohol throughout the relationship. He admitted to sufficient facts to warrant findings of guilt on charges of operating while under the influence of intoxicating liquor, resisting arrest, and assault and battery on M.K. M.K. obtained an order of protection under G. L. c. 209A, which Y.L.R. immediately violated. Y.L.R. served ten months in jail, and the G. L. c. 209A order was made permanent. While Y.L.R. was in jail, M.K. changed her, John's, and Jane's last names to her own, prior to its hyphenation.
In March of 2007, Y.L.R. was arrested after he backed his car into a police cruiser occupied by two West Newbury police officers responding to a report of an erratic driver. In March of 2011, Y.L.R. discovered that M.K. was involved in another relationship. He "began to scream and yell at [M.K.] for hours before the children went to bed." Y.L.R. pinched, shoved, and pushed M.K., then "choked her, threw a computer at her, and swore at her."
The judge found that Y.L.R. did not legally marry M.K. or adopt the children when he had the opportunity to do so. Although Y.L.R. has a substantial relationship with John and some relationship with Jane, the judge found insufficient evidence that measurable harm will befall the children if the relationship is terminated. See Care & Protection of Sharlene, 445 Mass. 756, 767 (2006). In light of Y.L.R.'s falsehoods regarding his health, his alcoholism, and his history of abusive behavior, the judge concluded that a continued relationship between Y.L.R. and the children would not be in their best interests.
The judge noted that Y.L.R. had not seen the children in more than three years as of the first date of trial, and she found that "the children have adjusted well to life without [him]."
Discussion. Y.L.R. does not challenge the judge's findings of fact but argues error in her ultimate conclusions. "As in other contexts where cases center on the best interests of the child, we will not disturb the judge's findings or substitute our judgment for that of the trial judge absent clear error." Smith v. Jones, 69 Mass. App. Ct. 400, 404 (2007).
The judge did not err in concluding that Y.L.R. is not a de facto parent to Jane. Her findings do not "allow a conclusion that [Y.L.R.'s] participation in [Jane's] life was of a loving or nurturing nature, or even that it was beneficial to the child." Care & Protection of Sharlene, supra. Y.L.R. bore the burden of proof on this issue. A.H. v. M.P., 447 Mass. 828, 838 (2006).
The judge noted that Jane was only three years old when the parties separated.
We also see no error in the judge's conclusion that Y.L.R. is not a de facto parent of John, even though the two enjoyed a substantial relationship. Y.L.R.'s failure to adopt John "is ‘some evidence, although not dispositive, that [M.K.] did not consent to the formation of the de facto parent relationship,’ " E.N.O. v. L.M.M., 429 Mass. 824, 831 n.10 (1999), quoting from ALI Principles of the Law of Family Dissolution § 2.03 comment (b), at 41 (Tent. Draft No. 3 Part 1 1998) (adopted at annual meeting May, 1998), and there is no evidence that Y.L.R. executed a voluntary acknowledgment of parentage, see Partanen v. Gallagher, 475 Mass. 632, 639 (2016). Nor was there evidence that John would be harmed by the discontinuation of his relationship with Y.L.R. See A.H. v. M.P., supra at 840, quoting from Troxel v. Granville, 530 U.S. 57, 65 (2000) ("[P]otential harm to the child is, of course, the criterion that tips the balance in favor of continuing contact with a de facto parent against the wishes of the fit legal parent, who has ‘fundamental liberty interests' in the child's care, custody, and control").
"A judge has broad discretion to consider any factor that bears on the child's best interests." Id. at 838. Here, the judge considered that (1) Y.L.R. was dishonest about having a terminal illness, (2) Y.L.R. abused alcohol, (3) Y.L.R. abused M.K. from the time John was born, and (4) M.K. has a permanent restraining order prohibiting Y.L.R. from contacting her or the children. The judge also considered the fact that Y.L.R. had not had contact with the children in the three years preceding the trial, during which time they had adjusted to life without him. The judge considered "the particular needs and circumstances of" John, Hunter v. Rose, 463 Mass. 488, 494 (2012), and concluded that his best interests would not be served by continued contact with Y.L.R. "[W]e will not substitute our weighing of the evidence for that of a trial judge who had the opportunity to observe the witnesses and form conclusions about their credibility." A.H. v. M.P., supra.
To the extent we have not addressed Y.L.R.'s remaining arguments, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
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Judgment affirmed.