Custody of Two Minors

421 N.E.2d 782, 12 Mass. App. Ct. 869, 1981 Mass. App. LEXIS 1098

Opinion

Both the present judgments are vacated, and the case is remanded to the Probate Court for the prompt conduct of a new evidentiary hearing and for a prompt, fresh determination of who is presently entitled to the custody of Michele and Melissa under G. L. c. 119, § 23(C), as appearing in St. 1973, c. 925, § 40. If the custody of either or both of the children is awarded to the Department of Social Services (see G. L. c. 119, § 21, as most recently amended by St. 1978, c. 552, § 28), there shall also be a contemporaneous fresh determination of the mother’s visitation rights. Both determinations (if both are necessary) are to be made in light of all the relevant principles and requirements expressed and enunciated in the cases of Bezio v. Patenaude, 381 Mass. 563, 570-571, 573-574, 576-577 (1980), Petition of the Department of Pub. Welfare, 383 Mass. 573, 583-584, 585-586, 587-594 (1981), Custody of a Minor, 383 Mass. 595, 600-601 (1981), and Guardianship of a Minor (No. 1), 11 Mass. App. Ct. 980 (1981), all of which were decided subsequent to the entry of the present judgments. Custody and visitation pending the further proceedings are to be in the discretion of the Probate Court.

Dennis J. Brennan for the mother. Maureen L. Fox, Assistant Attorney General, for Department of Social Services.

So ordered.