%20that%20the%20father%20have%20legal%20custody;%20(2)%20that%20the%20mother%20and%20father%20have%20shared%20physical%20custody,%20each%20parent%20spending%20substantial%20time%20with%20the%20child%20according%20to%20a...){kind=link}
Massachusetts Child Custody Minor Legal Custody Guardians-ad-litem Lawyers Attorneys
CUSTODY OF A MINOR
Appeals Court of Massachusetts, Barnstable
February 14, 1986, Argued
March 19, 1986, Decided
The judge issued his findings of fact and conclusions of law and a judgment ordering: (1) that the father have legal custody; (2) that the mother and father have shared physical custody, each parent spending substantial time with the child according to a biweekly schedule; (3) the appointment of aspecified person as mediator; (4) the appointment of the paternal grandparents as guardians ad litem "to report to the court any problems that arise and to monitor the custody situation" and to make arrangement for mediation as needed. Appellant mother sought review of order
Issues:
Whether the judge erred in awarding legal custody of the child to the father?
Whether the judge having an authority to appoint the paternal grandparents to serve as guardian ad litem?
The mother contends on appeal, first, that the judge had no authority to appoint the paternal grandparents to serve as guardian ad litem. The father makes no argument in support of that portion of the order. We agree with the mother that appointment of the grandparents as guardians ad litem must be set aside. A probate judge has considerable discretion to appoint a guardian ad litem to investigate and report facts in a child custody case, and in some situations a grandparent may be an appropriate person to serve as a guardian ad litem. The person appointed must be a disinterested person, however. The grandparents have demonstrated concern for the child's well-being, and the judge properly sought to have them significantly involved in her upbringing. Theirclose identification with the father, one of the parties, however, makes it inadvisable that they function in formal roles as investigators and reporters of facts to the court.
2) Whether the judge erred in awarding legal custody of the child to the father?
The judge held a full and complete hearing, made findings, each of which has some support in the record, and considered the various relevant factors from the point of view, correctly, of promoting the best interests and general welfare of the child. Unquestionably, according to the evidence and findings, both parents love the child and want custody and each parent enjoys an excellent relationship with her and provides more than adequate care. There was also considerable evidence of physical and verbal abuse between the parties when they lived together and after, and of excessive drinking by both. The evidence on most of the cross allegations was conflicting, and the judge did not resolve all of the conflicts. If, as the mother asserts, the judge placed too much blame on her and too little on the father, all that is part history. The custody proceeding was one solely to determine the future best interests of the child. It was not one to punish one parent for his shortcomings or to reward the other parent for a wronghe or she may have suffered in the past.
The Court agrees with the mother that a child living in a home in which there is a pattern of physical abuse may suffer harm as a result. Nothing in the evidence showed that the child was ever physically abused or hurt psychologically in any way, however, or that she is at the present time anything but a happy, healthy, and prospering child. In any event, issues of fault arising out of specific past incidents are not material to the custody issue, as the parties no longer live together. Significantly, the judge found that the father is very kind to the child and shows a lot of patience with her.
The judge made a difficult choice as to legal custody, having had the opportunity, which we lack, of observing and appraising both parents. The choice is one peculiarly within the judge's discretion. On this record we cannot say that he abused that discretion or that he was clearly wrong in awarding the legal custody of the child to her father. The mother has been granted joint physical custody with the father to satisfy her important interests in sharing the child's time and in exercisingher responsibility for the child's upbringing. In view of the antagonism presently existing between the parents, it was not unreasonable for the judge to decline to grant the parties joint legal custody.
Accordingly Judgment modified by striking the third paragraph, appointing the paternal grandparents as guardians ad litem, and, as so modified, the judgment is affirmed.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
Massachusetts Child Custody Minor Legal Custody Guardians-ad-litem Lawyers Attorneys
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