NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-602
D.S.1
vs.
K.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On the counterclaim of the father, D.S., to the complaint
for modification filed by the mother, K.M., a judge of the
Probate and Family Court awarded the father sole physical and
legal custody of the parties' minor child, and set a schedule
for the mother's parenting time with the child. The mother
appeals, arguing that the judge improperly weighed evidence that
the mother had twice made unsupported allegations that the
father had sexually abused the child, and exhibited "bias"
against the mother. We affirm.
1We use the initials appearing in the complaint for modification. Background. We set forth the facts based on the judge's
findings as to the evidence at the December 15, 2023 trial.
In October 2021, the judge granted sole physical and legal
custody of the child to the father, with parenting time to the
mother at the father's sole discretion and with the father
present, on the condition that the mother refrain from using
alcohol or drugs in the presence of the child. In November
2021, the judge entered further temporary orders, granting
physical custody of the child to the father and shared legal
custody to both parents, and setting schedules for the mother's
parenting time.
In February 2022, the mother reported to a child advocacy
center that the father had sexually abused the child. A report
pursuant to G. L. c. 119, § 51A, was filed, and the Department
of Children and Families (DCF) and police investigated the
allegation. The child underwent a forensic interview under the
Sexual Abuse Intervention Network (SAIN) protocol, but did not
disclose any sexual abuse by the father. The maternal
grandfather filed a petition for guardianship of the child,
which was dismissed after a DCF worker testified that the
allegations of sexual abuse were unsupported.
The judge entered further temporary orders. The judge
credited the father's trial testimony that from the fall of 2022
to early 2023, the parties were sharing custody of the child and
2 the schedule worked well. In January 2023, on the parties'
partial agreement for judgment, the judge ordered that the
parties share legal and physical custody of the child.
The mother testified that in May 2023 DCF contacted her
about a report that she had used marijuana in the presence of
her other child, an infant. On May 26, 2023, the mother made a
second allegation to DCF that the father had sexually abused the
child. The mother repeated the allegation to police and in an
affidavit in support of an application for an emergency G. L.
c. 209A order. The G. L. c. 209A order issued, but was
dismissed several days later.
On June 1, 2023, the mother filed the instant complaint for
modification seeking sole legal and physical custody of the
child, alleging as a change in circumstances that the father was
under investigation by DCF for sexual abuse of the child. The
father filed an answer and counterclaim, denying the mother's
allegations and seeking sole legal and physical custody of the
child, with supervised parenting time for the mother. The
mother filed a seven-page affidavit detailing her allegations of
sexual abuse of the child by the father.
At a second SAIN interview on June 7, 2023, the child again
did not disclose any sexual abuse by the father. However, the
child did disclose that "my mom said to me, we need to talk
about penises." After both parents were informed that the
3 allegations of sexual abuse were unsupported, the father
contacted the mother to attempt to pick up the child for his
scheduled parenting time, but the mother refused to turn over
the child, and the father contacted his attorney.
Before trial, the judge issued temporary orders that, among
other things, gave the father sole legal and physical custody of
the child and granted the mother supervised parenting time.
At trial, the mother denied having coached the child; the
judge did not credit her denial. The mother testified that she
had no concerns about the allegations of sexual abuse being
true, but she made them on the child's behalf because she was
acting as the child's "voice" and she believed them "in the
moment," which the judge did not credit. The judge found that
the mother's false allegations have resulted in major
disruptions in the child's life.
On the mother's complaint for modification and the father's
counterclaim, the judge entered a judgment granting sole legal
and physical custody of the child to the father. The judge
ordered that the mother's parenting time need not be supervised,
and that during parenting time the mother and her romantic
partner shall not be under the influence of drugs or alcohol.
The mother timely appealed.
Discussion. We review custody determinations for an abuse
of discretion and leave the judge's factual findings
4 "undisturbed absent a showing that they are plainly wrong or
clearly erroneous." Schechter v. Schechter, 88 Mass. App. Ct.
239, 245 (2015). We "give due regard to the judge's assessment
and determination of credibility of the witnesses and the weight
of the evidence." E.K. v. S.C., 97 Mass. App. Ct. 403, 409
(2020). The best interest of the child is the primary inquiry
in custody matters; it is within the discretion of the judge to
determine which parent will promote a child's best interest.
Hunter v. Rose, 463 Mass. 488, 494 (2012); see Custody of Kali,
439 Mass. 834, 840, 845 (2003). While the judge has no
"definitive list of criteria" to consider in determining the
best interest of the child, certain "constants" of assessment
include "which parent has been the primary caretaker of, and
formed the strongest bonds with, the child[;] the need for
stability and continuity in the child's life, the decision-
making capabilities of each parent to address the child's needs,
and the living arrangements and lifestyles of each parent" and
how they impact the child. El Chaar v. Chehab, 78 Mass. App.
Ct. 501, 506 (2010). See G. L. c. 208, § 31. A judge may also
consider "whether any member of the family abuses alcohol or
other drugs . . . and whether the parties have a history of
being able and willing to cooperate in matters concerning the
child." G. L. c. 208, § 31.
5 1. Judge's consideration of sexual abuse allegations. The
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-602
D.S.1
vs.
K.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On the counterclaim of the father, D.S., to the complaint
for modification filed by the mother, K.M., a judge of the
Probate and Family Court awarded the father sole physical and
legal custody of the parties' minor child, and set a schedule
for the mother's parenting time with the child. The mother
appeals, arguing that the judge improperly weighed evidence that
the mother had twice made unsupported allegations that the
father had sexually abused the child, and exhibited "bias"
against the mother. We affirm.
1We use the initials appearing in the complaint for modification. Background. We set forth the facts based on the judge's
findings as to the evidence at the December 15, 2023 trial.
In October 2021, the judge granted sole physical and legal
custody of the child to the father, with parenting time to the
mother at the father's sole discretion and with the father
present, on the condition that the mother refrain from using
alcohol or drugs in the presence of the child. In November
2021, the judge entered further temporary orders, granting
physical custody of the child to the father and shared legal
custody to both parents, and setting schedules for the mother's
parenting time.
In February 2022, the mother reported to a child advocacy
center that the father had sexually abused the child. A report
pursuant to G. L. c. 119, § 51A, was filed, and the Department
of Children and Families (DCF) and police investigated the
allegation. The child underwent a forensic interview under the
Sexual Abuse Intervention Network (SAIN) protocol, but did not
disclose any sexual abuse by the father. The maternal
grandfather filed a petition for guardianship of the child,
which was dismissed after a DCF worker testified that the
allegations of sexual abuse were unsupported.
The judge entered further temporary orders. The judge
credited the father's trial testimony that from the fall of 2022
to early 2023, the parties were sharing custody of the child and
2 the schedule worked well. In January 2023, on the parties'
partial agreement for judgment, the judge ordered that the
parties share legal and physical custody of the child.
The mother testified that in May 2023 DCF contacted her
about a report that she had used marijuana in the presence of
her other child, an infant. On May 26, 2023, the mother made a
second allegation to DCF that the father had sexually abused the
child. The mother repeated the allegation to police and in an
affidavit in support of an application for an emergency G. L.
c. 209A order. The G. L. c. 209A order issued, but was
dismissed several days later.
On June 1, 2023, the mother filed the instant complaint for
modification seeking sole legal and physical custody of the
child, alleging as a change in circumstances that the father was
under investigation by DCF for sexual abuse of the child. The
father filed an answer and counterclaim, denying the mother's
allegations and seeking sole legal and physical custody of the
child, with supervised parenting time for the mother. The
mother filed a seven-page affidavit detailing her allegations of
sexual abuse of the child by the father.
At a second SAIN interview on June 7, 2023, the child again
did not disclose any sexual abuse by the father. However, the
child did disclose that "my mom said to me, we need to talk
about penises." After both parents were informed that the
3 allegations of sexual abuse were unsupported, the father
contacted the mother to attempt to pick up the child for his
scheduled parenting time, but the mother refused to turn over
the child, and the father contacted his attorney.
Before trial, the judge issued temporary orders that, among
other things, gave the father sole legal and physical custody of
the child and granted the mother supervised parenting time.
At trial, the mother denied having coached the child; the
judge did not credit her denial. The mother testified that she
had no concerns about the allegations of sexual abuse being
true, but she made them on the child's behalf because she was
acting as the child's "voice" and she believed them "in the
moment," which the judge did not credit. The judge found that
the mother's false allegations have resulted in major
disruptions in the child's life.
On the mother's complaint for modification and the father's
counterclaim, the judge entered a judgment granting sole legal
and physical custody of the child to the father. The judge
ordered that the mother's parenting time need not be supervised,
and that during parenting time the mother and her romantic
partner shall not be under the influence of drugs or alcohol.
The mother timely appealed.
Discussion. We review custody determinations for an abuse
of discretion and leave the judge's factual findings
4 "undisturbed absent a showing that they are plainly wrong or
clearly erroneous." Schechter v. Schechter, 88 Mass. App. Ct.
239, 245 (2015). We "give due regard to the judge's assessment
and determination of credibility of the witnesses and the weight
of the evidence." E.K. v. S.C., 97 Mass. App. Ct. 403, 409
(2020). The best interest of the child is the primary inquiry
in custody matters; it is within the discretion of the judge to
determine which parent will promote a child's best interest.
Hunter v. Rose, 463 Mass. 488, 494 (2012); see Custody of Kali,
439 Mass. 834, 840, 845 (2003). While the judge has no
"definitive list of criteria" to consider in determining the
best interest of the child, certain "constants" of assessment
include "which parent has been the primary caretaker of, and
formed the strongest bonds with, the child[;] the need for
stability and continuity in the child's life, the decision-
making capabilities of each parent to address the child's needs,
and the living arrangements and lifestyles of each parent" and
how they impact the child. El Chaar v. Chehab, 78 Mass. App.
Ct. 501, 506 (2010). See G. L. c. 208, § 31. A judge may also
consider "whether any member of the family abuses alcohol or
other drugs . . . and whether the parties have a history of
being able and willing to cooperate in matters concerning the
child." G. L. c. 208, § 31.
5 1. Judge's consideration of sexual abuse allegations. The
mother argues that the judge improperly "punished" her for
having brought the sexual abuse allegations against the father,
impermissibly based the custody decision on a finding that the
mother "made up" those allegations, and failed to weigh the
impact on the child of mother's lack of custody. We are not
persuaded.
Based on the evidence at trial, the judge found the
mother's allegations to be "unsupported and transparent." The
judge further found that "[w]hen Mother is faced with the
possible loss of custody due to her own bad acts . . . she
creates a false narrative against the Father with complete
disregard for the damage it may cause to the child and the
family."
"The judge is afforded considerable freedom to identify
pertinent factors in assessing the welfare of the child and
weigh them as she sees fit." Smith v. McDonald, 458 Mass. 540,
547 (2010). The judge weighed the impact on the child of the
mother's false allegations against the father. The judge found
that those allegations went against the child's best interest,
and further that the mother did not appear to understand the
impact of her allegations on the child's welfare. Even so, the
judge credited the father's testimony that the mother's
parenting time was "necessary," and that the child was eager to
6 see the mother before her parenting time and unhappy to say
goodbye at its conclusion. We discern no abuse of the judge's
discretion in weighing that conflicting evidence.
2. Alleged judicial bias. The mother also argues that the
judge was "biased" against her and in favor of the father, and
improperly curtailed her presentation of evidence. The argument
is unavailing.
The mother represented herself at trial. "Despite their
lack of legal training, pro se litigants are held to the same
standards as practicing members of the bar." Commonwealth v.
Jackson, 419 Mass. 716, 719 (1995).
Our review of the transcript reveals that the judge
patiently explained trial procedures to the mother. Just before
the mother testified, the judge said, "I'm going to give you a
chance to tell me whatever you want -- whatever is not
objectionable." The judge allowed the mother to testify in
narrative form. On multiple occasions when the mother testified
to inadmissible evidence such as hearsay statements of DCF
workers, the judge allowed the father's counsel's motions to
strike.2 None of those evidentiary rulings amounted to an abuse
of discretion. See E.K., 97 Mass. App. Ct. at 409, citing L.L.
2 To the extent that the mother's brief contains statements attributed to "DCF" that were not admitted at trial, we disregard them as not properly before us.
7 v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See also M.B.
v. J.B., 86 Mass. App. Ct. 108, 110 n.5 (2014).
Nor does the trial record support the mother's claim of
judicial "bias" against her. Adverse rulings alone are
insufficient to establish judicial bias except "'in the rarest
circumstances' where they 'reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.'"
Passero v. Fitzsimmons, 92 Mass. App. Ct. 76, 83 (2017), quoting
Liteky v. United States, 510 U.S. 540, 555 (1994). No such
favoritism or antagonism was present here. Indeed, after trial,
the judge increased the mother's parenting time with the child
from supervised ninety-minute visits twice weekly to
unsupervised parenting time every other weekend, including an
overnight, and weekday after school visits. We find no evidence
of judicial bias.
Judgment dated January 22, 2024, on complaint for modification and counterclaim, affirmed.
By the Court (Grant, Brennan & Smyth, JJ.3),
Clerk
Entered: October 29, 2025.
3 The panelists are listed in order of seniority.