September 9, 2019.
N.E.3d 707] 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
J. Traft for the mother.
E. Curtis, Jr., for the father.
following submitted briefs for amici curiae:
Freeman & Wyley S. Proctor, Boston, for Womens Bar
Association of Massachusetts & another.
Richard M. Novitch, pro se.
Drobnick, of the District of Columbia, Philip A. OConnell,
Jr., & Tony K. Lu, Boston, for Domestic Violence Legal
Empowerment and Appeals Project.
J. Powers, Boston, Elizabeth V. Brennan, Worcester, Christine
M. Bonardi, Jamaica Plain, Roberta M. Driscoll, & Amy
DiDonna, Worcester, for D.M. & others.
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
N.E.3d 708] This is 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 the modification.
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.
part 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. [136 N.E.3d 709] 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 childs 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 fathers 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 fathers statement that after the
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 childs pediatrician to be tested
for a sexually transmitted disease (STD), that the mother told
the childs 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 childs face and alleged that the bruise could have
been from the father squeezing the childs face.
N.E.3d 710] In 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 fathers home, but the police declined to
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 mothers
arm, "squeezing extremely hard," and to the father
throwing the mothers car keys at her head; however, the
mother ducked and the keys landed on the childs leg, causing
her to bleed. As a result of the mothers report, an
application for a criminal complaint issued against
the father, but the application was denied for lack of