Heard: September 9, 2019
Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on February 12, 2014. A
complaint for modification, filed on May 19, 2016, was heard
by Randy J. Kaplan, J.
Supreme Judicial Court granted an application for direct
Michael J. Traft for the mother.
E. Curtis, Jr., for the father.
following submitted briefs for amici curiae:
Freeman & Wyley S. Proctor for Women's Bar
Association of Massachusetts & another.
Richard M. Novitch, pro se.
Drobnick, of the District of Columbia, Philip A.
O'Connell, Jr., & Tony K. Lu for Domestic Violence
Legal Empowerment and Appeals Project.
J. Powers, Elizabeth V. Brennan, Christine M. Bonardi,
Roberta M. Driscoll, & Amy DiDonna for D.M. & others.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
an appeal by the mother from a modification judgment that
granted sole legal custody of the parties' child to the
father. In this case we must resolve the tension between the
requirement in G. L. c. 208, § 31A, that "[i]n
issuing any temporary or permanent custody order, the probate
and family court shall consider evidence of past or present
abuse toward a parent or child as a factor contrary to the
best interest of the child" and the constraints of G. L.
c. 208, § 28, limiting modifications to changed
circumstances. The issues presented are whether (1) during a
proceeding to modify a child custody decision the judge must
consider evidence of domestic abuse that occurred prior to
the entry of the divorce judgment; (2) during a proceeding to
modify a child custody decision the judge must consider the
applicability of the rebuttable presumption that it is not in
the best interest of the child to be placed in the custody of
an abusive parent, even in the absence of evidence of abuse
occurring after the divorce judgment; and (3) there was a
material and substantial change in circumstances to warrant
that pursuant to G. L. c. 208, § 31A, the judge at a
modification proceeding must consider evidence of both past
and present abuse, including evidence of domestic abuse that
occurred prior to the entry of the divorce judgment, and must
address the applicability of the rebuttable presumption, even
in the absence of evidence of abuse occurring after the
divorce judgment. We further hold that in the present case, a
substantial change in circumstances warranted modification of
the custody order. For the reasons that follow, we
2015 judgment of divorce nisi.
parties met in 2001 and married in 2003. They have one child,
who was born in 2006. In 2014, the father filed for divorce.
The parties entered into a partial agreement for judgment, in
which they agreed to share legal custody of the child. After
a trial in which both parties were represented by counsel,
the judgment of divorce nisi (divorce judgment), which
incorporated the partial agreement for judgment, was entered
in August 2015. The divorce judgment provided that the
parties would share legal and physical custody of the child.
of the divorce proceedings, the court appointed a guardian ad
litem (divorce GAL), who conducted an investigation,
submitted a report (divorce GAL report), and testified at the
divorce trial. The divorce GAL interviewed the
mother, the father, and the child, as well as other
individuals connected to the parties. The divorce GAL report
stated, inter alia, that the mother alleged that the father
hit her and slapped her on and off throughout their marriage,
that the father turned physical three or four times per year,
and that the father "rage[d]" if the mother tried
to speak with him about the child's care. In addition,
the mother described to the divorce GAL what the divorce
judge found to be "a particularly egregious occurrence
of father assaulting mother in Florida in 2011" (2011
incident). The mother alleged that after she was two hours
late returning home from a shopping trip, the father yelled
and screamed at her, pushed her into a wall, knocked the door
down after she locked herself in the bedroom, told her
"I will teach you a lesson," and stabbed the chair
she had just purchased. The mother told the divorce GAL
that the child was present in the home during this incident.
The divorce GAL report addressed the father's description
of this incident, with the father recalling that he pushed
the mother to the floor; that, after the mother locked
herself in a room, he then pushed the door off the hinge; and
that the fight ended when he pushed the mother up against a
wall. The divorce GAL report stated that the father said that
he and the mother had had five or six fights that became
physical and that the mother had hit and slapped
him. The divorce GAL report also noted the
father's statement that after the 2011 incident he
"immediately looked for an anger management class and
booked himself in" and that he had not been physical
toward the mother since that time, which the mother
divorce judgment includes two sentences about domestic
violence: "The Court finds that the parties have both
engaged in physical assaults upon the other during the early
part of the marriage which culminated in a particularly
egregious occurrence of father assaulting mother in Florida
in 2011. Following that incident, father engaged in anger
management counseling at his own initiative and there have
been no further incidents." Neither party appealed from
the divorce judgment.
incidents occurred after the divorce judgment, leading the
father to seek modification of the divorce judgment in May
2016. In the time between the divorce judgment and the
modification trial, the father learned that the mother had
brought the child to the child's pediatrician to be
tested for a sexually transmitted disease (STD),
that the mother told the child's therapist that the child
showed signs of regression corresponding to visits with the
father, and that the mother brought the child to her
pediatrician for a bruise on the child's face and alleged
that the bruise could have been from the father squeezing the
early February 2016, the child was staying with the father
when she lost a baby tooth. The mother requested that the
father give the mother the tooth, but by the time she made
the request the father was traveling and could not provide
the mother with the tooth. The mother contacted the police to
seek assistance with obtaining the tooth from the
father's home, but the police declined to become
days after the tooth incident, the mother reported an alleged
2013 incident of abuse to the police (2013 incident). The
resulting police report stated that an argument between the
father and the mother led the father to grab the mother's
arm, "squeezing extremely hard," and to the father
throwing the mother's car keys at her head; however, the
mother ducked and the keys landed on the child's leg,
causing her to bleed. As a result of the mother's
report, an application for a criminal complaint issued
against the father, but the application was denied for lack
of probable cause.
days after the denial of the application for a criminal
complaint, the mother sought a G. L. c. 2O9A abuse prevention
order against the father. A judge granted an ex parte abuse
prevention order, which, in part, prohibited contact between
the child and the father for fifteen days, but after a full
hearing at which both parties were present, the order was not
February 2016, after receiving a report pursuant to G. L. c.
119, § 51A, from a mandated reporter (51A report), the
Department of Children and Families (department) began a
screening process concerning the father. However, the
department screened the 51A report out, thereby declining to
2016 complaint for modification.
2016, the father filed a complaint for modification of the
divorce judgment, alleging multiple material changes in
circumstances, including that he "has serious concerns
regarding Mother's intentional alienation efforts to keep
him from exercising his parenting time." The mother
filed an answer and counterclaim, alleging, in part, that
during the abuse prevention order hearing, the father
admitted to multiple "newly revealed" incidents of
domestic violence. The modification judge (judge) appointed a
guardian ad litem (modification GAL) and ruled that the
modification GAL report would be an uncontested exhibit at
trial. During the modification proceeding,
the judge reviewed documentary evidence from the divorce
trial and heard testimony from the parties.
modification GAL discussed the 2013 incident in his report,
writing that the child "did state that she had been
struck in the leg by car keys during an incident in 2013,
when her parents had been arguing and her father had thrown
the keys." Other exhibits the judge admitted during the
modification trial included the police report for the 2013
incident, the mother's journal narrative of the 2013
incident, and the divorce GAL ...