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-841
Y.A.
vs.
K.B.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Y.A. (mother) and K.B. (father) are the parents of one
child born in 2018. The mother appeals from a judgment issued
by a judge of the Probate and Family Court pursuant to G. L.
c. 209C.1 We affirm.
Background.2 The parties began a relationship around 2009,
lived together beginning in 2015, and separated in January 2020
when the child was eighteen months old. After the parties'
separation, the child resided primarily with the mother, and the
parties had an informal and flexible parenting schedule with the
1 The father did not participate in the appeal.
2The mother does not challenge any of the judge's findings of fact as clearly erroneous; we therefore accept them as true. See Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). father having the child on alternating weekends, including
overnights, and two or three days per week, excluding
overnights. The mother filed a complaint pursuant to G. L.
c. 209C in March 2022, and the father filed a counterclaim in
April 2022. In July 2022, the father's girlfriend, with whom
the father lived, gave birth to a child. In August 2022, the
judge issued a temporary order that granted the father
alternating weekends and midweek parenting time, both including
overnights, and awarded the parties shared legal custody. In
July and August 2022, the child's preschool teacher informed the
mother that she had observed the child to have difficulty
sharing, to isolate, and to say mean things to friends. The
mother suggested engaging the child in therapy, but the father
did not agree until February or March of 2023. The judge found
that, "[g]iven the confluence of events relating to Father's
second child and the increase in the Father's parenting time, it
is hard to determine the actual source of [the child's]
struggles at this time but the change in the parenting structure
is found to have contributed."
Prior to the entry of judgment, the parties generally
worked together to meet the medical and dental needs of the
child, but were not always able to reach immediate consensus on
enrolling the child in mental health treatment or
2 extracurricular activities. When the parties were together in
the child's presence, they treated each other respectfully. The
child did well in school and enjoyed time with both parents.
After a one-day trial, the judge granted the mother sole legal
custody and primary physical custody of the child. The judge
granted the father parenting time, access to the child's
providers, teachers, and instructors, and the right to attend
all the child's appointments, activities, and events.3 The judge
ordered the mother to provide the father with access to the
child's records and providers and inform him, in writing, before
making legal custodial decisions.
Discussion. "In custody matters, the touchstone inquiry
[is] . . . what is best for the child . . ." (quotation and
citation omitted). Malachi M. v. Quintina Q., 483 Mass. 725,
740 (2019). See G. L. c. 209C, § 10. "[T]he best interests
analysis is a child-centered one that focuses on the specific
needs and interests of a child and how these might best be met.
The standard does not focus on purely parental interests . . ."
(citation and quotation omitted). Charara v. Yatim, 78 Mass.
App. Ct. 325, 336 (2010).
3 The parenting plan set forth in the judgment maintained the schedule awarded under the temporary order: to wit, two overnight weekdays and alternating weekends from Friday to Sunday. This schedule provides the father with close to thirty- eight percent of the parenting time with the child.
3 "The determination of which parent will promote a child's
best interests rests within the discretion of the judge . . . ."
Custody of Kali, 439 Mass. 834, 845 (2003), quoting Rosenberg v.
Merida, 428 Mass. 182, 191 (1998). The best interests
determination is "a classic example of a discretionary decision"
as to which "much must be left to the trial judge's experience
and judgment" (citations omitted). Adoption of Hugo, 428 Mass.
219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526
U.S. 1034 (1999). "[A] judge may consider any factors found
pertinent to those interests in the circumstances of the
dispute," Custody of Zia, 50 Mass. App. Ct. 237, 243 (2000),
such as "which parent has been the primary caretaker of . . .
the child, the need for stability and continuity in the child's
life, [and] the decision-making capabilities of each parent to
address the child's needs," El Chaar v. Chehab, 78 Mass. App.
Ct. 501, 506 (2010). "We review the judgment and the subsidiary
findings of fact for abuse of discretion or other error of law."
Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the mother claims that the judge abused her
discretion in granting the father access to the child's records
and participation in the child's appointments, in requiring the
mother to communicate with the father before making decisions
4 regarding the child, and in granting the father "equalized
parenting time."
The mother contends that the breadth of the father's access
to and participation in legal custodial issues essentially
amounts to shared or de facto legal custody. We disagree. The
judge's decision to grant the mother ultimate decision-making
authority while keeping the father informed and involved in the
child's legal custodial decisions is amply supported by her
findings and the record. The child, since birth, has enjoyed
time with both parents who provide him with care, affection, and
support. Prior to the parties' separation, they shared
parenting responsibilities while the other parent worked or
attended school. The mother "has been the parent responsible
for [the child's] medical and educational decisions and made
such decisions successfully." Notwithstanding, the father is
actively involved in the child's day-to-day care. The father
asked the mother to schedule a medical appointment when the
parties had concerns over the child's snoring, which ultimately
led to surgery. The father has taken the child to the dentist
and, more recently, medical appointments. The father has
exercised uninterrupted parenting time since the child's birth
and has consistently sought additional time with him. The
Free access — add to your briefcase to read the full text and ask questions with AI
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-841
Y.A.
vs.
K.B.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Y.A. (mother) and K.B. (father) are the parents of one
child born in 2018. The mother appeals from a judgment issued
by a judge of the Probate and Family Court pursuant to G. L.
c. 209C.1 We affirm.
Background.2 The parties began a relationship around 2009,
lived together beginning in 2015, and separated in January 2020
when the child was eighteen months old. After the parties'
separation, the child resided primarily with the mother, and the
parties had an informal and flexible parenting schedule with the
1 The father did not participate in the appeal.
2The mother does not challenge any of the judge's findings of fact as clearly erroneous; we therefore accept them as true. See Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). father having the child on alternating weekends, including
overnights, and two or three days per week, excluding
overnights. The mother filed a complaint pursuant to G. L.
c. 209C in March 2022, and the father filed a counterclaim in
April 2022. In July 2022, the father's girlfriend, with whom
the father lived, gave birth to a child. In August 2022, the
judge issued a temporary order that granted the father
alternating weekends and midweek parenting time, both including
overnights, and awarded the parties shared legal custody. In
July and August 2022, the child's preschool teacher informed the
mother that she had observed the child to have difficulty
sharing, to isolate, and to say mean things to friends. The
mother suggested engaging the child in therapy, but the father
did not agree until February or March of 2023. The judge found
that, "[g]iven the confluence of events relating to Father's
second child and the increase in the Father's parenting time, it
is hard to determine the actual source of [the child's]
struggles at this time but the change in the parenting structure
is found to have contributed."
Prior to the entry of judgment, the parties generally
worked together to meet the medical and dental needs of the
child, but were not always able to reach immediate consensus on
enrolling the child in mental health treatment or
2 extracurricular activities. When the parties were together in
the child's presence, they treated each other respectfully. The
child did well in school and enjoyed time with both parents.
After a one-day trial, the judge granted the mother sole legal
custody and primary physical custody of the child. The judge
granted the father parenting time, access to the child's
providers, teachers, and instructors, and the right to attend
all the child's appointments, activities, and events.3 The judge
ordered the mother to provide the father with access to the
child's records and providers and inform him, in writing, before
making legal custodial decisions.
Discussion. "In custody matters, the touchstone inquiry
[is] . . . what is best for the child . . ." (quotation and
citation omitted). Malachi M. v. Quintina Q., 483 Mass. 725,
740 (2019). See G. L. c. 209C, § 10. "[T]he best interests
analysis is a child-centered one that focuses on the specific
needs and interests of a child and how these might best be met.
The standard does not focus on purely parental interests . . ."
(citation and quotation omitted). Charara v. Yatim, 78 Mass.
App. Ct. 325, 336 (2010).
3 The parenting plan set forth in the judgment maintained the schedule awarded under the temporary order: to wit, two overnight weekdays and alternating weekends from Friday to Sunday. This schedule provides the father with close to thirty- eight percent of the parenting time with the child.
3 "The determination of which parent will promote a child's
best interests rests within the discretion of the judge . . . ."
Custody of Kali, 439 Mass. 834, 845 (2003), quoting Rosenberg v.
Merida, 428 Mass. 182, 191 (1998). The best interests
determination is "a classic example of a discretionary decision"
as to which "much must be left to the trial judge's experience
and judgment" (citations omitted). Adoption of Hugo, 428 Mass.
219, 225 (1998), cert. denied sub nom. Hugo P. v. George P., 526
U.S. 1034 (1999). "[A] judge may consider any factors found
pertinent to those interests in the circumstances of the
dispute," Custody of Zia, 50 Mass. App. Ct. 237, 243 (2000),
such as "which parent has been the primary caretaker of . . .
the child, the need for stability and continuity in the child's
life, [and] the decision-making capabilities of each parent to
address the child's needs," El Chaar v. Chehab, 78 Mass. App.
Ct. 501, 506 (2010). "We review the judgment and the subsidiary
findings of fact for abuse of discretion or other error of law."
Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the mother claims that the judge abused her
discretion in granting the father access to the child's records
and participation in the child's appointments, in requiring the
mother to communicate with the father before making decisions
4 regarding the child, and in granting the father "equalized
parenting time."
The mother contends that the breadth of the father's access
to and participation in legal custodial issues essentially
amounts to shared or de facto legal custody. We disagree. The
judge's decision to grant the mother ultimate decision-making
authority while keeping the father informed and involved in the
child's legal custodial decisions is amply supported by her
findings and the record. The child, since birth, has enjoyed
time with both parents who provide him with care, affection, and
support. Prior to the parties' separation, they shared
parenting responsibilities while the other parent worked or
attended school. The mother "has been the parent responsible
for [the child's] medical and educational decisions and made
such decisions successfully." Notwithstanding, the father is
actively involved in the child's day-to-day care. The father
asked the mother to schedule a medical appointment when the
parties had concerns over the child's snoring, which ultimately
led to surgery. The father has taken the child to the dentist
and, more recently, medical appointments. The father has
exercised uninterrupted parenting time since the child's birth
and has consistently sought additional time with him. The
mother has asked the father to care for the child overnight when
5 she was unavailable, and, on two occasions, has asked the father
to care for the child when she was away on ten-day vacations.
The father makes meals for the child, bathes him, helps him with
his nighttime routine, readies him for preschool, interacts with
his preschool teachers, plays with him, speaks with him in
Spanish to help him learn the language, and encourages his
relationship with the mother. The father pays for the child's
soccer program. The child has frequent contact with the
father's extended family during the father's parenting time.
Keeping the father informed of the child's legal custodial
issues such as his medical and dental care, his extracurricular
activities, and his education, is consistent with the father's
historical participation and does not infringe on the mother's
ultimate decision-making authority.
Accordingly, the judge properly considered the parties'
respective contributions in determining the child's best
interests; therefore, the decision to permit the father's
continued access to the child's records and participation in
events and appointments, and the requirement for the mother to
notify the father in advance of legal custodial decisions are
not "outside the range of reasonable alternatives," Macri v.
Macri, 96 Mass. App. Ct. 362, 369 n.13 (2019), quoting L.L., 470
Mass. at 185 n.27, and do not constitute an abuse of discretion.
6 The mother also contends that the judge should have
considered "countervailing equities" in fashioning the custody
award. Cournoyer v. Cournoyer, 40 Mass. App. Ct. 302, 305-307
(1996). That standard is inapposite here. The "countervailing
equities," or "something more than a material change of
circumstances," standard is applied where specific enforcement
of a surviving separation agreement is sought. Id. at 305. The
judge did, however, address and account for the conduct that the
mother refers to as the father's "fraud" and "unclean hands."
The judge gave the mother sole legal custody, rather than the
shared legal custody awarded in the temporary order, noting that
the temporary order had been based on the father's
representations of the prior responsibilities and was not in the
child's best interest. The judge also noted that the father had
omitted from his financial statement his income for the first
three months of 2023, but found that the statement accurately
reflected his income at the time of the trial.
Finally, the mother argues that the judge abused her
discretion in granting primary physical custody to the mother
and also ordering "an equal 50/50 parenting plan between Mother
and Father." The mother misreads the judgment. Of the fourteen
available overnights during each two-week period, the father was
awarded six and the mother was awarded eight. Based on this
7 schedule, the mother is the primary physical custodian of the
child.4
Judgment affirmed.
By the Court (Blake, C.J., Massing & Allen, JJ.5),
Clerk
Entered: August 26, 2025.
4"The mother's remaining contentions . . . either do not constitute argument as contemplated by Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975), or would not require a reversal of the judgment" (citation omitted). Custody of Zia, 50 Mass. App. Ct. at 248.
5 The panelists are listed in order of seniority.