Jason V. Owens reviews the difficult process of changing a temporary custody order in Massachusetts probate and family courts.

A recent unpublished opinion of the Massachusetts Appeals Court illustrates the long, slow road that a parent faces when seeking to reverse a temporary order that granted the other party sole physical custody of the children. To understand the case, Wilson v. Wilson (2017), it is important to start with the final outcome, which was this: after a divorce trial on July 12, 2016, the wife was granted legal and physical custody of the parties’ child. The wife was granted custody after trial, in large part, because judge found the mother had fled “an emotionally and physically abusive relationship” with the husband, while the judge found the husband had “demonstrated an inability ‘to appropriately provide for [the child’s] day-to-day care’”.

Table of Contents for this Blog:

• After Temporary Custody Granted to Father, a Year Passed Before Mother Gained Custody
• Trials in the Probate and Family Court Often Take Years to Resolve
• Temporary Orders: The True Power in Many Custody and Divorce Cases
• Courts Can Punish Dishonest Behavior with a Change in Physical Custody
• The Takeaway: Changing Temporary Orders Can be a Long, Hard Slog

After Temporary Custody Granted to Father, a Year Passed Before Mother Gained Custody

As noted above, on July 12, 2016, a Judgment of Divorce entered granting the wife sole custody of the child entered. The judgment followed a trial that was held the previous month at the Worcester Probate and Family Court before Hon. Leilah A. Keamy. At the time of the judgment, it had been more than one year since a different judge had granted the husband sole physical custody at an emergency hearing. The ex parte emergency hearing, which occurred without the wife’s knowledge, took place on June 23, 2015. During that hearing, the husband asked the judge (who was hearing emergency motions that day) to grant him sole custody of the child because the wife was acting “unstable,” was not “thinking clearly,” and was not “of sound mind.” The emergency judge granted the husband’s motion, granting him sole legal and physical custody of the child based on the husband’s claims.

Two weeks after the emergency hearing, a second hearing was scheduled. The wife did not attend the second hearing, and Judge Keamy (who took over for the emergency judge) entered a temporary order extending the emergency custody order. At the trial, one year later, Judge Keamy found that the husband had failed to inform the wife of the second hearing, as the emergency order had required. Back in the spring of 2015, however, the real-world impact of the wife’s non-attendance was the extension of the order granting the husband sole custody.

In July of 2015, the wife retained an attorney and attempted to undo the temporary order granting husband sole custody. She did not succeed. Finally, in August of 2015, the wife entered a stipulation for temporary orders in which she conceded temporary custody to the husband in exchange for parenting time with the child every other weekend.

In December of 2016, the wife filed another motion seeking a more equitable parenting schedule. The motion was heard by a third judge, who denied the Mother’s request and left the August stipulation in place. Finally, a month after the trial on June 20, 2016, the mother was granted custody of her son. It appears that Judge Keamy ultimately believed the allegations the mother had been making for the previous year, but it took a trial to reverse the temporary order for custody.

After the entry of judgment, the husband appealed the custody decision, which was affirmed by the Appeals Court on October 18, 2017.

Trials in the Probate and Family Court Often Take Years to Resolve

This may sound strange, but one could argue that the mother in Wilson was quite lucky. In many Massachusetts Probate and Family Courts, it is nearly impossible to obtain a trial date within one year of the filing of a Complaint for Divorce. In Plymouth County, for example, judges are often forced to schedule Pre-Trial Conferences eight or nine months after a complaint is filed, with trials frequently scheduled an additional eight to nine months later. (Does this seem unfair? Urge your local representatives to allocate more desperately needed funds to the cash-strapped probate court, so judges can hire basic administrative staff.)

Moreover, in Wilson, Judge Keamy rendered her decision with extraordinary speed. In our experience, most probate and family court decisions take at least three months – and more commonly six to nine months – for a judge to enter after trial. In Wilson, Judge Keamy held trial on June 20, 2016 and entered her written judgment and findings on July 12, 2016, less than one month later.

In our experience, it is highly unusual for a judge to render her final written judgment within one year of a divorce being filed. In most contested divorce cases involving two attorneys, at least two years (and more often three) elapse between the date the original complaint is filed and when the judge enters his or her final judgment after trial.

Reading a decision like Wilson, one might feel that the mother was the victim of a tremendous injustice. After all, the decision suggests that she was deprived of custody of her child for more than one year based on allegations by the husband, about whom the judge eventually “made detailed findings regarding the husband’s physical and emotional abuse of the wife.” Indeed, the wife’s experience seems particularly unfair given that “[t]he wife was the child’s primary caretaker during the marriage, a role that was effectively destroyed by the husband’s ‘bad faith’ commencement of custody proceedings.”

However, a counter-argument could be made that the court’s one-year turnaround of the case – i.e. from the filing in June 2015 to the judgment in July 2016 – was unusually fast, at least for Massachusetts. There is no question that the mother in Wilson experienced an ordeal, but for many similarly-situated parents in Massachusetts, the wait would have been two or three times longer for a decision to come.

Temporary Orders: The True Power in Many Custody and Divorce Cases

As we have discussed before on this blog, the outcome of a hearing on temporary orders is often the most critical moment in a custody or divorce case. As Wilson shows, a negative temporary order can be overcome by a party, but doing so often requires a trial, which carries with it tremendous cost, stress and delay. Based on the appellate record, it appears the mother in Wilson was much a victim of bad luck as the husband’s alleged bad acts. The husband’s emergency motion for custody was heard on June 23, 2015. The wife filed her own pro se complaint for divorce the very next day, on June 24, 2015.

Had the wife hired her attorney immediately, she might have learned about the second hearing on July 2, 2015, potentially altering the trajectory of the case. Instead she waited, missed the hearing on July 2, 2015, and was unable to overcome the damage the following month.

Temporary orders, once entered, can be quite difficult to change. As the Wilson mother learned in December of 2016, when she filed her second motion seeking additional parenting time, judges are often reluctant to enter further temporary orders. It simply cannot be emphasized enough how important temporary orders can be in a child custody case.

Courts Can Punish Dishonest Behavior with a Change in Physical Custody

As always, it is important to note that this blog takes no position on the underlying facts of a case when we review an appellate decision. As legal blogger, we have no way of knowing if the father in Wilson actually acted in bad faith or dishonestly. We only know that the Appeals Court characterized his conduct this way by describing the husband’s actions as follows:

The judge found that the husband’s emergency motion for custody “was advanced in bad faith … in an attempt to gain unfair advantage in this legal proceeding,” “to exclude the [w]ife from [the child’s] life,” and to “interfere[] in [the wife’s] relationship with [the child].” …. She further found that the husband sought and obtained the initial emergency custody order as a result of intentional misrepresentations to the court …

We have written before about how judges punish dishonest parents in probate court cases by granting custody (or expanded parenting time) to the other parent. We have also written about how difficult it can be to change a temporary custody order, after it has entered, even when one parent’s bad behavior seems clear:

[T]he case illustrates the challenges parties face in modifying temporary orders. One might think that the type of conduct engaged in by the father in this case would have provided the mother with a basis for modifying the temporary parenting schedule in advance of trial. The fact that the mother was able to overcome the temporary orders following trial demonstrates that the system can be responsive to bad parental behavior. By the same token, the fact that the mother was required to expend the time, money and stress on a trial to achieve such a seemingly obvious result illustrates the many challenges that parties face in overcoming a “bad” temporary order or agreement.

There is little question that judges react to dishonesty and bad parental behavior by changing custody or reallocating parenting time. There are frequently evidentiary challenges with proving bad behavior, however, and sometimes a party must litigate for years before he or she gets a good opportunity to present his or her evidence to a judge.

The Takeaway: Changing Temporary Orders Can be a Long, Hard Slog

If there is one take away from Wilson and similar cases, it is this: changing an unjust temporary custody order is possible, but achieving the change can be slow, expensive and stressful. The mother’s attorney in Wilson deserves credit for managing such a difficult case and reversing the negative order within one year. In many cases, the wait is much longer.

About the Author: Jason V. Owens is a Massachusetts divorce lawyer and family law attorney for Lynch & Owens, located in Hingham, Massachusetts and East Sandwich, Massachusetts. He is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Jason V. Owens today at (781) 253-2049 or send him an email.