Youmans v. Ramos

711 N.E.2d 165, 429 Mass. 774, 1999 Mass. LEXIS 388

• Court: Massachusetts Supreme Judicial Court
• Decided: June 22, 1999
• Status: Published

Opinions

Marshall, J.

We consider in this case whether, attendant to a judgment awarding a father custody of his then eleven year old daughter, a judge in the Probate and Family Court may order visitation between the child and a guardian with whom she had lived for many years, and who had long filled the role of the only parent for the child.

In 1997, Donald R. Youmans (father), a resident of Georgia, sought legal and physical custody of his daughter, Tamika E. Youmans. Tamika, who was bom in 1986, had lived with Cynthia M. Ramos, her maternal aunt, in Massachusetts for most of her life. The aunt, previously appointed as Tamika’s permanent guardian, sought to retain custody of Tamika. After a trial, the judge vacated the aunt’s guardianship, awarded custody of Tamika to her father and, without request from the parties, ordered that Tamika visit her aunt during a school vacation each winter and for six weeks each summer, at the father’s expense. He also ordered the father to permit and encourage weekly telephone contact between Tamika and her aunt.

The aunt does not appeal from the custody determination. The father challenges so much of the judgment as concerns visitation and other contacts between the aunt and his daughter. He argues that, in the absence of a statute expressly permitting the order of visitation privileges to a “nonparent,” the judge had no legal authority to order the visitation, and that the order violates his liberty interest, protected by the Federal and State Constitutions, in raising his child without State interference. In the alternative, he challenges the extent of the visitation and the imposition of its costs on him. We affirm the judgment of the Probate and Family Court.

1. Background. We summarize the facts as found by the judge or stipulated by the parties. Tamika Youmans and her twin, Tisha, were bom on March 31, 1986. Their parents, Luz Ramos (mother) and Donald Youmans, never married. Youmans and the mother met in 1982 while he was serving in the military and stationed at Fort Devens in Massachusetts. When the father was transferred to Fort Benning, Georgia, in 1984, the mother visited him, but never moved to Georgia. Tamika and Tisha were bom prematurely in New York.¹ The father obtained leave and visited them in the hospital. The twins and their mother lived for a few months in Georgia before returning to Massachusetts to live near the mother’s sister, Cynthia Ramos (aunt). But for those initial few months in Georgia, Tamika has lived only in Massachusetts, almost entirely with her aunt. The father has never lived in Massachusetts with his daughter.

Tisha died on February 19, 1988. She was never a healthy child, and the aunt took care of Tamika from infancy so that the mother could care for Tisha. The mother died when Tamika was five years old, at which time the aunt became Tamika’s sole caretaker.² According to the aunt’s undisputed testimony, Tamika learned to walk, to talk, and to read in her care; the aunt arranged for Tamika’s medical care; accompanied her to all of her appointments; oversaw her progress at school; took her to church every Sunday; and arranged for and participated in all of her extracurricular activities. Tamika refers to the aunt as her “mom,” and to the aunt’s biological children as her “brothers” and “sisters.” The aunt testified that she has cared for Tamika “like a child of my own.” She was in every sense Tamika’s de facto parent.³

While the mother was alive, the father provided financial support for his twin daughters by an allotment from his military pay. In 1987, the father was transferred from Georgia to Germany. He returned to Massachusetts for five days on emergency leave to attend Tisha’s funeral in 1988, at which time he also saw Tamika. He next saw Tamika in 1990 when he again visited Massachusetts. During that two-week visit, he and the mother executed a domestic relations agreement regarding Tamika’s custody, support, and medical insurance. They agreed that they would share legal custody of Tamika, that the mother would continue to have sole physical custody of her, and that the father would have reasonable visitation rights.⁴ They further agreed that, if the mother were to predecease the father, he would assume physical custody of Tamika.

On May 12, 1991, Tamika’s mother died. Because it is relevant to our holding, we describe in some detail the various actions and inactions relating to Tamika’s custody after the death of her mother. On May 17, 1991, the aunt filed a petition for guardianship of Tamika and was appointed temporary guardian by a judge in the Probate and Family Court.⁵ When the father learned of the mother’s death, he came to Massachusetts from his military station in Europe on emergency leave and, on May 28, 1991, filed in the same court a separate equity petition for custody of Tamika.⁶ The next day a judge issued a temporary order of visitation between the father and Tamika, appointed a guardian ad litem for the father, declined to vacate the aunt’s temporary guardianship of Tamika, and declined to grant the father’s request for temporary custody. The father never challenged any aspect of that order.

For reasons that are not explained, neither the father nor the father’s counsel appeared at the next hearing on October 31, 1991, and the judge continued the temporary guardianship of the aunt. A report filed in November, 1991, by the father’s guardian ad litem reported that the father was still living in Europe and, in a telephone conversation with his guardian ad litem, had expressed a desire for custody of Tamika.⁷ The report also stated that the father was eligible for leave in June, 1992, and had requested a hearing on custody at that time. On July 14, 1992, after continuances on February 20, 1992, and April 14, 1992, the aunt was appointed permanent guardian of Tamika. The father was not present at that hearing and his counsel did not appear. The father never challenged that order.

From July, 1991, until June, 1992, the father was stationed in Iraq in his capacity as a member of the armed forces in the Gulf War.⁸ After returning briefly to Germany, in 1993 the father was transferred to the United States, and received an honorable discharge from the army in 1995. In the interim he had married a German national; his wife and their son moved with him to Georgia. The father made no attempt to obtain custody of Tamika, and continued to provide financial support for her by sending his payments to the aunt.⁹ The father next saw Tamika in the summer of 1994, when she came to stay with him for two weeks.¹⁰ She returned again for two visits of approximately ten days each in December of 1995 and the summer of 1996. In April, 1997, Tamika visited her father at his home in Georgia for five days.

In March, 1997, when Tamika was eleven years old, the father filed this, his second, petition in equity for custody of Tamika. He sought to terminate the aunt’s guardianship of Tamika, and requested “temporary orders to facilitate the transfer of [Tamika’s] custody” to him. The aunt opposed the petition. She did not seek visitation privileges in the event custody was awarded to the father. That same month, a judge issued a temporary order in this case,¹¹ incorporating a stipulation of the parties that provided for the father’s visitation with Tamika in Georgia during the April school vacation and the summer months, and for reasonable telephone contact between father and daughter.

The trial was held on July 14, 1997. With the agreement of the parties, the judge interviewed Tamika in his chambers. There is no transcript of that interview. On August 29, 1997, the judge issued his findings of fact, conclusions of law, and judgment. He found that the father had maintained a “continuing presence” in Tamika’s life, had provided financial support for her, and over the years had telephoned, written to, and periodically visited Tamika. He made further findings concerning the father’s financial well-being, his living arrangements in Georgia, his planned second marriage, and his planned child care and other arrangements for Tamika. He also found that there was no evidence that the father “is unfit to assume full custodial responsibilities of Tamika.” The judge vacated the aunt’s appointment as permanent guardian of Tamika. However, he found that it is in Tamika’s best interests to maintain contact with the aunt and the aunt’s family, and, “[i]n light of the role of caretaker and guardian that [the aunt] has played in the first eleven years of Tamika’s life,” ordered “liberal visitation and contact” between Tamika and her aunt. He ordered the father to assume the costs of visitation because the father’s financial resources “greatly exceed” those of the aunt.

2. The statutory challenge to the visitation order. In Massachusetts no statute expressly authorizes an aunt or former guardian of a minor child to seek visitation privileges with the child. The father argues that a judge may grant visitation rights only to persons specifically authorized by statute to receive them, and that the judge had no legal authority to order visitation between Tamika and her aunt. He points to G. L. c. 209C, pertaining to children bom out of wedlock. Section 10 of that chapter,¹² he says, provides the exclusive legislative authority for custody determinations of children bom out of wedlock, and he observes that G. L. c. 209C provides no authority for visitation privileges for adults other than a biological parent.¹³

The father did not assert his claim for custody under G. L. c. 209C in the trial court. Assuming that he may invoke the chapter at this late date, G. L. c. 209C has no application to these proceedings. The purpose of that chapter is “to deal with actions to establish paternity in the context of children bom out of wedlock,” C.C. v. A.B., 406 Mass. 679, 681 (1990), and to ensure that children born out of wedlock are given the same rights and protections of the law as all other children. G. L. c. 209C, § 1.¹⁴ See Doe v. Roe, 23 Mass. App. Ct. 590, 594-595 (1987) (chapter “shows a clear intention to provide broad remedies for equal treatment for children bom out of wedlock”). The chapter does not limit a judge’s authority to act in accordance with a child’s best interests: the “enactment of G. L. c. 209C places no limit on the Probate Court’s general equity jurisdiction.” C.C. v. A.B., supra at 682.

The father also misapprehends the judge’s order. The right (or standing) of an adult who is not a legal parent to seek visitation privileges with a minor child is not at issue in this case.¹⁵ Tamika’s aunt never sought such privileges. Rather, the judge, in resolving this custody dispute, ordered continuing contact between Tamika and her aunt because he concluded that it was in the child’s best interests to do so. The judge’s consideration of Tamika’s best interests was entirely appropriate.¹⁶ The welfare of the child is “the controlling consideration” in custody proceedings. Stevens v. Stevens, 337 Mass. 625, 627 (1958). See C.C. v. A.B., supra at 689 (“existence of a substantial parent-child relationship is ... the controlling factor” in determining whether putative father could maintain an action in equity seeking visitation). See also Opinion of the Justices, 427 Mass. 1201, 1206 (1998); Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 361 Mass. 631, 640 (1975); Richards v. Forrest, 278 Mass. 547, 553 (1932); Purinton v. Jamrock, 195 Mass. 187, 199 (1907).

There was uncontested, overwhelming evidence that, with the acquiescence of the father, a substantial mother-daughter relationship had developed between Tamika and her aunt. The judge recognized that judgment of custody in favor of the father necessarily would deprive Tamika of the only parent-child relationship she has known, resulting in another significant disruption (physical, geographic, and emotional) in her young life. He was not powerless to minimize the resulting harm to Tamika. “The first and paramount duty of courts is to consult the welfare of the child.” Richards v. Forrest, supra at 553. “To that governing principle every other public and private consideration must yield. Parents are the natural guardians of their minor child and entitled to its custody. But they have no absolute property right of which they can in no way be deprived without their consent. Their right will not be enforced to the detriment of the child.” Id. See ALI Principles of the Law of Family Dissolution, § 2.02 (Tent Draft No. 3 Part 1 1998) (“[t]he primary objective ... is to serve the child’s best interests ... [a] secondary objective . . . is to achieve fairness between the parents”). The dissent’s suggestion that any adult who has “bonded” with a child — be she nanny or other caregiver — may obtain visitation rights under our holding is misplaced. Post at 793. There is a world of difference between the relationship of a child and a de facto parent, as the aunt most assuredly is to Tamika, and a bond with a child that any number of adults may have. Summarily removing a child from her de facto parent and the only home she has ever known is different in kind from terminating the employment of a nanny.

In Petition of the Dep ’t of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 376 (1981), we declined to decide whether G. L. c. 210, § 3, which authorizes a judge to permit the adoption of a child without the consent of the parents, allows a judge to provide for “open adoption,” i.e., postadoptive visitation by members of the child’s natural family. Id. at 379-380 & nn.3, 5. Later, in Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 392 Mass. 696 (1984), we concluded that, although there is no statutory authority for postadoption visitation, the “broad equitable powers” of courts in this area permit a judge, in his discretion, to evaluate a proposed adoption plan providing for such visitation and to decide whether visitation is in the child’s best interests. Id. at 702-703. The judge in this case could exercise the same powers. In every case in which a court order has the effect of disrupting a relationship between a child and a parent, the question surely will arise whether it is in the child’s best interest to maintain contact with that adult.¹⁷ Whether such contact in any given case is wise is a matter that should be left to the discretion of the judge. See Adoption of Nicole, 40 Mass. App. Ct. 259, 264-265 (1996), and cases cited.¹⁸ The evidence of the parent-child relationship and strong emotional ties between Tamika and her aunt fully warrant the judge’s order, more particularly because this young girl was being moved to a new environment to live with a man with whom she had spent precious little time in her life.

3. The constitutional challenge to visitation. On appeal the father argues that the order for visitation violates his rights under the Federal and Massachusetts constitutions to raise his child free from State interference. The liberty interest of a parent in his relationship with his child is fundamental. Opinion of the Justices, supra at 1203, and cases cited. That interest is protected by art. 10 of the Massachusetts Declaration of Rights and the due process clause of the Fourteenth Amendment to the United States Constitution. Id., citing Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 3 (1979).¹⁹ In Opinion of the Justices, supra at 1203, the Justices explained that a parent’s interest in his relationship with his child is not absolute, because the “overriding principle” in determining the right of a parent to custody “must be the best interest of the child.” Id., quoting C.C. v. A.B., supra at 691. “Although parents have a fundamental, constitutionally protected interest in their relationships with their children, attainment of the children’s best interest may involve some limitation on the liberties of one or the other of the parents.” Opinion of the Justices, supra at 1206. A parent’s “desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ ” Lassiter v. Department of Social Servs. of Durham County, 452 U.S. 18, 27 (1981), quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972). Here, Tamika’s interest in continuing to have access to the only adult who has acted as a parent to her is powerful. The integrity of Tamika’s family — the only family she knows — has been destroyed through no fault of her “mom.” Tamika is entitled to be protected from the trauma caused by the disruption of that relationship.²⁰ See Opinion of the Justices, supra at 1208; Adoption of a Minor, 343 Mass. 292, 294-295 (1961). In this case, the father acquiesced for many years to his daughter’s living with her aunt, permitting the development of a de facto parent role for the aunt. Even if we assume that the father’s military posting in Europe made exercise of his custodial rights difficult to pursue — and there is scant, if any, evidence of that — four years passed after his return to the United States before he sought custody of his daughter. Four years is an eternity in the life of a young child. The judge heard the unchallenged testimony regarding Tamika’s affection for and reliance on her aunt as a parent. Her father, in contrast, was a “continuing presence” but nonetheless a distant figure in Tamika’s life.²¹ In these circumstances, an order ensuring that Tamika will continue to have contact with her aunt is not a constitutionally impermissible interference with the father’s rights.

4. Adequacy of the findings. The father argues that, even if the judge had the power to order visitation, there is no “factual basis” and insufficient factual findings to justify the extent of the visitation or the order requiring the father to pay the costs of visitation. The judge’s conclusion that, confronted with a disruptive move to a new home hundreds of miles away, it is in Tamika’s best interests to maintain contact with her de facto parent and family, is fully supported. See C.C. v. A.B., 406 Mass. 679, 690 (1990), quoting R.R.K. v. S.G.P., 400 Mass. 12, 21 (1987) (Liacos, J., concurring) (“existence or nonexistence of a substantial relationship between the putative father and child is relevant in evaluating both the rights of the parent and the best interests of the child”); Adoption of Lars, 46 Mass. App. Ct. 30, 33 (1998) (limited postadoptive visitation held to be in best interests of children given “ongoing relationship and bonding between the [biological] mother and each of the children”); Cennami v. Department of Pub. Welfare, 5 Mass. App. Ct. 403, 409 (1977), quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 645 n.12 (1975) (“duration of. . . custody as it bears on ‘the putative emotional shock to the child of transfer may be an important factor in the calculation]’ of the best interests of the child”).

As to the scope of the visitation, the judge considered the nature and the duration of the relationship between Tamika and the aunt. He interviewed Tamika in his chambers. He considered the evidence of the arrangements for visitation between the aunt and the father that had been in effect while Tamika lived in Massachusetts. The father testified that he would not object to Tamika’s visits with her aunt. The visitation order mirrors almost exactly the visitation arrangements agreed to by the father and the mother for Tamika’s visits to her father, and is substantially similar to the arrangements stipulated by the father and the aunt at the commencement of this litigation. On this record, ordering Tamika to visit her aunt for six weeks during the summer and one week during the winter vacation is not unreasonable.²²

The record also supports the judge’s order that in this case the father should assume the costs of the visitation between Tamika and the aunt.²³ His long acquiescence ifi his daughter’s living with her aunt led to the development of the child’s close bond with her aunt. It is not the aunt’s interests that the visitation order protects, but Tamika’s interests. The child is the one who is at risk of emotional damage because of her father’s belated claim of custody. The aunt has fulfilled a role that the father chose not to assume. We see no reason why the aunt should now have to assume any further financial obligations. Moreover, there was evidence that the father’s income is $50,000, more than two and one-half times that of the aunt. The father supports one other child, his son in Germany, while the aunt is the primary financial provider for her four children; her income is low, and there is nothing to suggest that she could in fact pay for the travel expenses involved. In the past the father agreed to pay the transportation costs for Tamika’s travel between Massachusetts and Georgia, and the father makes no claim that these costs were a hardship for him.

The best interests standard presents the trial judge “with a classic example of a discretionary decision.” Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). “Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the trial judge’s experience and judgment. Underlying each case are predictions as to the possible future development of a child, and these are beyond truly accurate forecast.” Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, supra at 646. The judge in this case had ruled on the parties’ earlier requests for relief. At trial he had an opportunity to observe both the father and the aunt. He interviewed Tamika. He was in the best position to determine the arrangements that would best serve Tamika’s interests as she deals with another major disruption in her young life.

As Tamika matures and becomes established in her new life, her needs and wishes may change. Counsel have apprised us of what appear to be continuing differences between the father and the aunt. The judge, in his discretion, may determine that a further hearing would be helpful to determine whether visitation between Tamika and her Massachusetts family continues to be in her best interests.

Judgment affirmed.

1 There was testimony at trial that the mother was on a visit to New York when the twins were bom. Although the mother was released soon after their birth, the twins remained hospitalized for some time; Tamika had a heart murmur and a collapsed left lung.

2 The aunt testified, without rebuttal, that before Tisha died, the mother also became ill, and her illness escalated following Tisha’s death. She was hospitalized for the last six months of her life, during which time Tamika lived with her aunt.

3 We use the terms “legal parent” and “de facto parent” proposed by the Reporters on the ALI Principles of the Law of Family Dissolution. See ALI Principles of the Law of Family Dissolution § 2.03(1) (Tent. Draft No. 3 Part 1 1998) (approved at annual meeting May, 1998). The definition of “de facto parent” states in relevant part:

“A de facto parent is an adult, not the child’s legal parent, who for a period that is significant in light of the child’s age, developmental level, and other circumstances,

“(i) has resided with the child, and

“(ii) for reasons primarily other than financial compensation, and with the consent of a legal parent to the formation of a de facto parent relationship . . . regularly has performed

“(I) a majority of the caretaking functions for the child.”

Id.

4 According to the agreement, which was entered in evidence at the custody hearing, once Tamika reached the age of ten years, she was to spend the months of June and July with her father every year, as well as alternating Christmas holidays. The father was to assume all expenses associated with those visits.

5 In her last will and testament, executed in January, 1991, the mother appointed her mother, Emilia Ramos (grandmother), as the guardian of Tamika. If the grandmother was unable to serve, the mother appointed the aunt as Tamika’s guardian. For reasons relating to her own poor health, the grandmother waived her right to be appointed Tamika’s guardian. Consistent with the mother’s expressed wishes, the judge appointed the aunt Tamika’s guardian. The aunt sought guardianship promptly following the mother’s death so that the aunt, who receives public assistance from the Aid to Families with Dependent Children (AFDC) program, could secure benefits under her AFDC grant and from Social Security for Tamika and could ensure that Tamika continued to have medical coverage.

6 The two actions were treated as if consolidated, with subsequent orders being entered in both actions. The father was represented by the same counsel in both proceedings.

7 No guardian ad litem was ever appointed for Tamika. The 1991 report of the father’s guardian ad litem was attached to the father’s complaint in this action and was mentioned in the parties’ stipulation of facts. Although not introduced in evidence at the trial, it was relied on by the judge in his findings of fact.

8 The father makes no claim that he was unable to communicate with his counsel, the guardian ad litem appointed to represent him, or the court during this period.

9 The father testified that at the time of trial he had an annual income of $50,000. The aunt testified that she received $300 a month from the father.

10 Tamika was eight years old at the time of this visit. She had last seen her father when she was five years old. The father separated from his wife in late 1993, and she and their son returned to Germany shortly thereafter. The couple were divorced in 1994.

11 Although not consolidated, orders entered in this proceeding were docketed simultaneously in the two earlier proceedings described above. See note 6, supra.

12 General Laws c. 209C, § 10, states in relevant part: “(a) Upon or after an adjudication or voluntary acknowledgment of paternity, the court may award custody to the mother or the father or to them jointly or to another suitable person as hereafter further specified as may be appropriate in the best interests of the child .... (c) If either parent is dead, unfit or unavailable or relinquishes care of the child or abandons the child and the other parent is fit to have custody, that parent shall be entitled to custody, (d) If a person who is not a parent of the child requests custody, the court may order custody to that person if it is in the best interests of the child and if the written consent of both parents or the surviving parent is filed with the court. Such custody may also be ordered if it is in the best interests of the child and if both parents or the surviving parent are unfit to have custody or if one is unfit and the other files his written consent in court.”

13 General Laws c. 209C, § 11 (b), provides that the parents of a child bom out of wedlock who execute a voluntary acknowledgment of parentage may make agreements regarding “custody, support and visitation,” that the agreements may be filed in court, and that, if approved by the court, the agreement “shall have the same force and effect as a judgment.” That section provides further “that an agreement regarding custody and visitation shall be approved only if the court finds it to be in the best interests of the child.”

14 General Laws c. 209C, § 1, provides, in pertinent part: “Children bom to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children. It is the purpose of this chapter to establish a means for such children either to be acknowledged by their parents voluntarily or, on complaint by one or the other of their parents or such other person or agency as is authorized to file a complaint by [§ 5], to have an adjudication of their paternity, to have an order for their support and to have a declaration relative to their custody or visitation rights ordered by a court of competent jurisdiction.”

15 The father’s reliance on cases from other States where a party other than a legal parent sought unsuccessfully to establish visitation privileges with children is, therefore, misplaced. See, e.g., Bessette v. Saratoga County Comm’r of Social Servs., 209 A.D.2d 838 (N.Y. 1994) (former foster parents brought applications for visitation with their former foster children); Alison D. v. Virginia M., 11 N.Y.2d 651 (1991) (woman who had live-in relationship with child’s mother sought to obtain visitation rights after termination of relationship). Some States have granted such visitation privileges to an adult who acts as a de facto parent to a child. For example, in Holtzman v. Knott, 193 Wis. 2d 649, cert. denied, 516 U.S. 975 (1995), the Supreme Court of Wisconsin concluded that a nonparent can seek visitation privileges if he or she has “a parent-like relationship with the child” and that a “significant triggering event” justifies State intervention in the child’s relationship with a parent. Id. at 658. The Wisconsin court held that to demonstrate a “parent-like relationship” with the child, a petitioner must prove “(1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature” (footnotes omitted). Id. at 658-659. Cf. ALI Principles of the Law of Family Dissolution § 2.03(l)(b) (Tent. Draft No. 3 Part 1 1998) (approved at annual meeting May, 1998) (definition of de facto parent). See note 3, supra.

16 The dissent focuses on the visitation rights of third parties — not at issue in this litigation — and does not address the best interests of Tamika, a child raised (with the father’s acquiescence) by her maternal aunt for the crucial first decade of her life. Similarly, there is no hint in this record that the judge ever suggested —■ nor do we — that the father had “waived” his custodial rights to his daughter, and the dissent’s reference to cases where such a claim has been made is inapposite. Post at 792. We do not intimate that the father’s decision to leave his daughter in the sole custody of her aunt for more than a decade would, without more, warrant a judge to conclude that the father is “unfit to further the welfare of the child.” Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 391 Mass. 113, 120 (1984), quoting Bezio v. Patenaude, 381 Mass. 563, 577 (1980). The fitness of the father is not an issue here. But where a legal parent permits, indeed facilitates in every way, the development of a de facto parental role for another adult with his child, the child’s best interest may result in some limitation on the rights of the legal parent. See Opinion of the Justices, 427 Mass. 1201, 1206 (1998).

17 The dissent would limit “State intervention” to “extreme” circumstances, “such as abuse or neglect.” Here, the State did not “intervene”; State action was affirmatively sought by the father, who had allowed his child to be raised by another despite clear evidence that he was in a position to assume custody of her when her mother died, had he chosen to do so. He may have had good reason to conclude that Tamika should remain with her aunt for all those years, but he cannot now complain that the State has “intervened” when it was he who invoked the State’s authority to obtain custody of Tamika.

18 We do not construe G. L. c. 119, § 39D, as appearing in St. 1991, c. 292, granting visitation privileges to certain grandparents of minor children, to preclude in all other circumstances an order of visitation between a child and an adult other than a legal parent. That statute does not limit the scope of the equity jurisdiction of the Probate Court. Cf. C.M. v. P.R., 420 Mass. 220, 223 (1995). Courts in other jurisdictions have reached the same result. See Michaud v. Wawruck, 209 Conn. 407 (1988) (not against public policy to enforce agreement for postadoption visitation rights in best interests of child even when child was adopted by persons other than biological relatives or stepparents); Rogers v. Trent, 594 A.2d 32 (Del. 1991) (visitation with great-aunt and uncle ordered for child placed in father’s custody not abuse of discretion even though no statutory authorization); In re Custody of D.M.M., 137 Wis. 2d 375 (1987) (statute authorizing court to order visitation for parents, grandparents and great-grandparents did not deprive trial court of authority to grant visitation rights to great-aunt who previously had custody of child). In Rogers v. Trent, supra at 34, the Supreme Court of Delaware concluded that the Family Court could fashion a “visitation scheme involving third parties if it determines it is in the best interests of the child to do so.” The court observed that “to determine how the welfare of the child will best be served, the court must be sensitive to the emotional trauma implicit in relocating a child of tender years from surroundings in which he or she has advanced and benefitted.” Id.

19 Cf. Stanley v. Illinois, 405 U.S. 645, 651 (1972) (“The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, [262 U.S. 390, 399 (1923)], the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, [316 U.S. 535, 541 (1942)], and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 [1965] [Goldberg, J., concurring]”).

20 We recognize a child’s vulnerability when the bonds with an adult who acts as a de facto parent are broken. “When a child is placed by its parent ... in a good family the inevitable consequence will be that firm bonds of affection and confidence will rapidly arise on both sides. The damage to the child, who cannot understand what is happening, from breaking these bonds is something which even competent psychiatrists may be unable to predict. In the absence of compelling statutory command, such a breach should not be permitted lightly at the request of either of the natural parents who had their chance to take care of the child themselves and who themselves have created the unfortunate situation. The interests of the natural parents in such a case must be completely subordinated to the permanent interest of the child.” Adoption of a Minor, 343 Mass. 292, 296 (1961), quoting Adoption of a Minor, 338 Mass. 635, 643 (1959). See generally ALI Principles of the Law of Family Dissolution, supra at § 2.02.

21 At trial, the father was unable to recognize or identify the names of Tamika’s best friends, pets, and teachers. He also misidentified the denomination of the church she had attended for over ten years.

22 The father argues that the judge failed to address “differences in parental style” between the father and the aunt, as well as differences in their lifestyles. The father made no such claim at the trial. His argument is hard to square with his long acquiescence in his daughter’s living with the aunt in the very environment he now criticizes. The differences in parental lifestyles may be real, and, contrary to the suggestion by the dissent, we do not minimize them. In our judgment the trial judge appropriately focused on the best interests of Tamika, and the dissent does not question the judge’s finding that the visitation is in Tamika’s best interests. It is incumbent on the adults — the father and the aunt — to work together to ensure that Tamika not be pulled in different directions or otherwise suffer emotional trauma because the father holds different and strong views about the appropriate way to raise a child.

23 On appeal the father makes a fleeting argument that the order requiring him to pay the transportation costs for the visits deprives him of his property in violation of the Fourteenth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. His conclusory claim does not constitute adequate appellate argument, and we do not consider it. See Beaton v. Land Court, 367 Mass. 385, 389-390 (1975); Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).