D.S. v. K.M.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-602

D.S.1

vs.

K.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On the counterclaim of the father, D.S., to the complaint

for modification filed by the mother, K.M., a judge of the

Probate and Family Court awarded the father sole physical and

legal custody of the parties' minor child, and set a schedule

for the mother's parenting time with the child. The mother

appeals, arguing that the judge improperly weighed evidence that

the mother had twice made unsupported allegations that the

father had sexually abused the child, and exhibited "bias"

against the mother. We affirm.

1We use the initials appearing in the complaint for
modification.
Background. We set forth the facts based on the judge's

findings as to the evidence at the December 15, 2023 trial.

In October 2021, the judge granted sole physical and legal

custody of the child to the father, with parenting time to the

mother at the father's sole discretion and with the father

present, on the condition that the mother refrain from using

alcohol or drugs in the presence of the child. In November

2021, the judge entered further temporary orders, granting

physical custody of the child to the father and shared legal

custody to both parents, and setting schedules for the mother's

parenting time.

In February 2022, the mother reported to a child advocacy

center that the father had sexually abused the child. A report

pursuant to G. L. c. 119, § 51A, was filed, and the Department

of Children and Families (DCF) and police investigated the

allegation. The child underwent a forensic interview under the

Sexual Abuse Intervention Network (SAIN) protocol, but did not

disclose any sexual abuse by the father. The maternal

grandfather filed a petition for guardianship of the child,

which was dismissed after a DCF worker testified that the

allegations of sexual abuse were unsupported.

The judge entered further temporary orders. The judge

credited the father's trial testimony that from the fall of 2022

to early 2023, the parties were sharing custody of the child and

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the schedule worked well. In January 2023, on the parties'

partial agreement for judgment, the judge ordered that the

parties share legal and physical custody of the child.

The mother testified that in May 2023 DCF contacted her

about a report that she had used marijuana in the presence of

her other child, an infant. On May 26, 2023, the mother made a

second allegation to DCF that the father had sexually abused the

child. The mother repeated the allegation to police and in an

affidavit in support of an application for an emergency G. L.

c. 209A order. The G. L. c. 209A order issued, but was

dismissed several days later.

On June 1, 2023, the mother filed the instant complaint for

modification seeking sole legal and physical custody of the

child, alleging as a change in circumstances that the father was

under investigation by DCF for sexual abuse of the child. The

father filed an answer and counterclaim, denying the mother's

allegations and seeking sole legal and physical custody of the

child, with supervised parenting time for the mother. The

mother filed a seven-page affidavit detailing her allegations of

sexual abuse of the child by the father.

At a second SAIN interview on June 7, 2023, the child again

did not disclose any sexual abuse by the father. However, the

child did disclose that "my mom said to me, we need to talk

about penises." After both parents were informed that the

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allegations of sexual abuse were unsupported, the father

contacted the mother to attempt to pick up the child for his

scheduled parenting time, but the mother refused to turn over

the child, and the father contacted his attorney.

Before trial, the judge issued temporary orders that, among

other things, gave the father sole legal and physical custody of

the child and granted the mother supervised parenting time.

At trial, the mother denied having coached the child; the

judge did not credit her denial. The mother testified that she

had no concerns about the allegations of sexual abuse being

true, but she made them on the child's behalf because she was

acting as the child's "voice" and she believed them "in the

moment," which the judge did not credit. The judge found that

the mother's false allegations have resulted in major

disruptions in the child's life.

On the mother's complaint for modification and the father's

counterclaim, the judge entered a judgment granting sole legal

and physical custody of the child to the father. The judge

ordered that the mother's parenting time need not be supervised,

and that during parenting time the mother and her romantic

partner shall not be under the influence of drugs or alcohol.

The mother timely appealed.

Discussion. We review custody determinations for an abuse

of discretion and leave the judge's factual findings

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"undisturbed absent a showing that they are plainly wrong or

clearly erroneous." Schechter v. Schechter, 88 Mass. App. Ct.

239, 245 (2015). We "give due regard to the judge's assessment

and determination of credibility of the witnesses and the weight

of the evidence." E.K. v. S.C., 97 Mass. App. Ct. 403, 409

(2020). The best interest of the child is the primary inquiry

in custody matters; it is within the discretion of the judge to

determine which parent will promote a child's best interest.

Hunter v. Rose, 463 Mass. 488, 494 (2012); see Custody of Kali,

439 Mass. 834, 840, 845 (2003). While the judge has no

"definitive list of criteria" to consider in determining the

best interest of the child, certain "constants" of assessment

include "which parent has been the primary caretaker of, and

formed the strongest bonds with, the child[;] the need for

stability and continuity in the child's life, the decision-

making capabilities of each parent to address the child's needs,

and the living arrangements and lifestyles of each parent" and

how they impact the child. El Chaar v. Chehab, 78 Mass. App.

Ct. 501, 506 (2010). See G. L. c. 208, § 31. A judge may also

consider "whether any member of the family abuses alcohol or

other drugs . . . and whether the parties have a history of

being able and willing to cooperate in matters concerning the

child." G. L. c. 208, § 31.

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1. Judge's consideration of sexual abuse allegations. The

mother argues that the judge improperly "punished" her for

having brought the sexual abuse allegations against the father,

impermissibly based the custody decision on a finding that the

mother "made up" those allegations, and failed to weigh the

impact on the child of mother's lack of custody. We are not

persuaded.

Based on the evidence at trial, the judge found the

mother's allegations to be "unsupported and transparent." The

judge further found that "[w]hen Mother is faced with the

possible loss of custody due to her own bad acts . . . she

creates a false narrative against the Father with complete

disregard for the damage it may cause to the child and the

family."

"The judge is afforded considerable freedom to identify

pertinent factors in assessing the welfare of the child and

weigh them as she sees fit." Smith v. McDonald, 458 Mass. 540,

547 (2010). The judge weighed the impact on the child of the

mother's false allegations against the father. The judge found

that those allegations went against the child's best interest,

and further that the mother did not appear to understand the

impact of her allegations on the child's welfare. Even so, the

judge credited the father's testimony that the mother's

parenting time was "necessary," and that the child was eager to

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see the mother before her parenting time and unhappy to say

goodbye at its conclusion. We discern no abuse of the judge's

discretion in weighing that conflicting evidence.

2. Alleged judicial bias. The mother also argues that the

judge was "biased" against her and in favor of the father, and

improperly curtailed her presentation of evidence. The argument

is unavailing.

The mother represented herself at trial. "Despite their

lack of legal training, pro se litigants are held to the same

standards as practicing members of the bar." Commonwealth v.

Jackson, 419 Mass. 716, 719 (1995).

Our review of the transcript reveals that the judge

patiently explained trial procedures to the mother. Just before

the mother testified, the judge said, "I'm going to give you a

chance to tell me whatever you want -- whatever is not

objectionable." The judge allowed the mother to testify in

narrative form. On multiple occasions when the mother testified

to inadmissible evidence such as hearsay statements of DCF

workers, the judge allowed the father's counsel's motions to

strike.2 None of those evidentiary rulings amounted to an abuse

of discretion. See E.K., 97 Mass. App. Ct. at 409, citing L.L.

2 To the extent that the mother's brief contains statements
attributed to "DCF" that were not admitted at trial, we
disregard them as not properly before us.

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v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See also M.B.

v. J.B., 86 Mass. App. Ct. 108, 110 n.5 (2014).

Nor does the trial record support the mother's claim of

judicial "bias" against her. Adverse rulings alone are

insufficient to establish judicial bias except "'in the rarest

circumstances' where they 'reveal such a high degree of

favoritism or antagonism as to make fair judgment impossible.'"

Passero v. Fitzsimmons, 92 Mass. App. Ct. 76, 83 (2017), quoting

Liteky v. United States, 510 U.S. 540, 555 (1994). No such

favoritism or antagonism was present here. Indeed, after trial,

the judge increased the mother's parenting time with the child

from supervised ninety-minute visits twice weekly to

unsupervised parenting time every other weekend, including an

overnight, and weekday after school visits. We find no evidence

of judicial bias.

Judgment dated January 22,
2024, on complaint for
modification and
counterclaim, affirmed.

By the Court (Grant,
Brennan & Smyth, JJ.3),

Clerk

Entered: October 29, 2025.

3 The panelists are listed in order of seniority.

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