Massachusetts divorce lawyer Nicole K. Levy explores how Probate and Family Court judges punish dishonesty in child custody cases.
Probate Court judges have ways of punishing parties who engage in dishonest or alienating behaviors during a custody case. Going through a divorce, or trying to change a divorce agreement is strenuous enough, but when dealing with a “crazy” ex-partner, it can become unbearable. Often times, one parent may begin to seemingly misrepresent facts about the children. These misrepresentations can be directed at you, your family, teachers, the court, or the children themselves. However, in a messy divorce or modification, people will sometimes go to great lengths to sway the court in their direction. This can end up affecting your children negatively, as well as your case.
In certain cases, judges see through this behavior and not only discourage it, but used it against the dishonest parent. By way of example, in a 2015 Massachusetts Appeals Court case, Privitera v. Kennelly, the Mother’s behavior was essentially deemed to be a material change in circumstance that warranted a change in a parenting plan. In this case, Father initially saw the child every Wednesday and every other weekend. The Father filed to increase his time, and the parties come to an agreement, which expanded Father’s time. However, two years later, Mother filed a Complaint with the court looking to take away all of Father’s overnights. Father counterclaimed, looking for physical custody and more time.
At trial, the court took into consideration Mother’s behavior, which Father claimed was not in the best interest of the child. These behaviors included refusing to communicate with Father, attempting to alienate the child from Father, and fabricating occurrences during transitions. The court also noted there were boundary issues, including Mother refusing to leave the child’s classroom at school. The judge heard testimony that Mother claimed the child exhibited negative symptoms after time with Father, despite doctors reporting the child to be healthy. Moreover, the record reflected that Mother would constantly ask the child if Father had done anything to her during their visits. Lastly, the judge credited third party testimony about how Mother seemed to be trying to build a legal case against Father. Given these factors, the judge determined that Mother was incapable of separating her needs and interests from the child’s. The judge ultimately concluded that the child’s present living conditions were adversely affecting her health (this includes physical, mental, moral or emotional health), and ordered the change in physical custody.
Interestingly, the probate court judge under review never directly stated that Mother’s conduct amounted to a material change in circumstance (the legal standard for a modification), but given the ruling and change to the parenting schedule, the Appeals Court found that a material change was implicit in the ruling, and justified a new parenting schedule.
It should be noted that the parties were in front of the same judge for their divorce, and a prior modification, giving this judge ample opportunity to get to know each party. Sometimes this can work as an advantage; sometimes it can be harmful to one party, if the judge has an opinion about the party before trial.
Regardless – and unfortunately – this type of scenario is not uncommon for separated parents. In this particular case, it appears the judge was able to see through Mother’s problematic conduct, but this is not always the case. (Nor is there any way to really know if Mother was acting strategically, in an effort to “build a case” against Father in this case, or if her conduct arose out of sincere concerns about Father’s parenting.) The reality is that probate court judges vary widely in what they consider problematic behavior from a parent; some judges seem to have unlimited tolerance for open dishonesty, while other judges are so intolerant of disagreement that they seem to punish parties just for articulating a legal position. Understanding your judge’s perspective can be a crucial part of your custody case.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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