MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a nine-day trial, a judge of the Probate and Family Court entered a modification judgment (1) awarding the mother, Jennifer Bettencourt, sole legal and physical custody of the parties two children, (2) providing the father, Kevin Biorci, with weekly supervised parenting time, and (3) altering the fathers child support payments from $750 per month to $400 per week. On appeal, the father contends that the judge abused his discretion in determining, absent expert testimony, that the father alienated the children from the mother. The father additionally argues that his words were unconstitutionally used against him, and that testimony regarding events occurring prior to the original judgment was improperly admitted. We affirm.
Background. Together, the mother and the father have two sons who were twelve and ten years old respectively on the last date of trial. The parties were never married, and on July 23, 2015, they entered into an agreement to share legal and physical custody of the two children. On that same date, a judge of the Probate and Family Court entered a judgment incorporating the parties custody agreement.
In March 2016, the father filed a complaint for modification seeking an increase in his parenting time, alleging that the children were being mistreated by the mother and her husband. On this date, the father also filed a motion requesting that the judge appoint a guardian ad litem, which the judge allowed on April 11, 2016.
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On May 17, 2016, the mother filed an answer to the fathers complaint, as well as a counterclaim seeking sole legal and physical custody of the children, with the father having supervised parenting time.
On June 28, 2017, on motion by the mother, a judge issued a temporary order granting the mother sole legal and physical custody and providing the father with weekly supervised visits at a supervised visitation center. The judge also reappointed the guardian ad litem to conduct an investigation to “assess the results” of the temporary custody and visitation arrangement.
The trial was held over nine days between March 28, 2018 and May 15, 2019. After the trials conclusion, the judge issued findings of fact, rationale, and conclusions of law. The judge found that, while the father has repeatedly alleged that the mother and her husband abuse the children, his allegations have been investigated and determined to be unsupported by both the police and the Department of Children and Families (DCF) and that the father refuses to accept the results of those investigations. Instead, he attempts to document signs of abuse of the children by taking photographs of the childrens injuries and recording the children even though they have expressed to father that it makes them uncomfortable.
The judge found that, on one occasion in February 2016, when the father picked the children up during a parenting exchange, the younger son was “inconsolable,” and the father decided to record his conversation with him. The recording was admitted in evidence at trial. The judge found that, in the recording, the father can be heard explaining to the younger son what an assault is, the son sounds “completely unemotional,” and the father “sounds like he is coaching the children.” Moreover, the judge found that the younger son states in the recording, “Everyone at the Court are stupid fucking idiots. They dont believe me. Dickhead threw a rock at my head,” with no admonishment from the father that such language was inappropriate.
The father also brought the recording to the Tisbury Police Department to evidence abuse by the mother and her husband, and alleged several additional incidents of abuse. Officer Kindia Roman conducted an investigation and determined that the allegations of abuse were unsupported. When Officer Roman informed the father of the investigations conclusion, the father told her that “he went to jail for domestic violence and that someone has to pay. He said he was going to take the allegations to the Governors office and was not going to stop.”
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Relatedly, the judge found that, on another occasion, in February 2017, the younger son fell while playing at home with the dog, and he reported to his mother that he was afraid that the father was going to take photographs of his bruise.
The judge also found that the father refuses to participate in the younger sons therapy in a meaningful way. The younger son has had four different therapists since 2014. In 2014, both children began attending therapy together with therapist Carmen Wilson. In connection with the original custody judgment, Wilson informed the guardian ad litem that the father manipulates the children against the mother. Eventually, Wilson asked the father not to be present during her sessions with the children. The father refused and discontinued the childrens therapy with Wilson. From March 2015 to January 2017, the younger son attended therapy with another therapist, Cleo Winsryg-Wild. Winsryg-Wild testified that, while the mother was very open to working with the son, she had concerns about the fathers parenting of him. During sessions where the father was present, the younger son appeared hesitant to say anything positive about the mother. Moreover, the father seemed unconcerned about discussing the sons issues, and instead would focus on what he perceived to be abuse by the mother. During one session in May 2016, the father requested that Winsryg-Wild ask the younger son “probing questions” that she deemed to be inappropriate. When she declined to do so, the father raised his voice at Winsryg-Wild, stood in close proximity with her, and told her not to schedule any more appointments with him. During another session, the younger son informed Winsryg-Wild that he is afraid of his father.
In January 2017, the younger son discontinued seeing Winsryg-Wild and began attending therapy with Jacob Mozes-Reisman. The father informed Mozes-Reisman that his son did not need therapy. From November 2017 to November 2018, the younger son attended therapy with Chloe Tagan. During that time, Tagan identified the sons relationship with the father as a stressor. In February 2018, Tagan conducted an urgent care assessment of the younger son after the father visited him unannounced at school, in violation of the temporary order. The son informed Tagan that he was fearful because the father called his mother inappropriate names and stated that he was going to hurt the mothers husband.
The judge found that the father continuously disparages the mother in the community, and likely has done so in front of the children. Several individuals in the community reported that the father has called the mother a “cunt,” as well as other derogatory terms, and the father himself admits to using derogatory language to describe the mother.
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The father testified, however, that he never uses this language to describe the mother in front of the children, but the judge did not find this statement to be credible. The mother testified, and the judge credited, that the father has called her derogatory names in front of the children. Further, in August 2016, the older son told the mother what the word “cunt” meant. When the mother asked where he learned that word, the son responded that “Dad says it all the time so I asked him what it meant.”
The judge found that the parties communications had completely broken down, and that subsequent to the original judgment, the parties communications were particularly hostile. For example, in July 2015, when the mother did not allow the children to attend a field trip as a form of punishment, the father sent her an e-mail calling her a “miserable piece of work.” The father has also sent her e-mails stating that she is “absolutely hopeless,” and that she “need[s] to lift [her] game in the food department for the boys.” As of the date of trial, the parties had not communicated at all since June 2017.
The judge also found that the fathers parenting of the children raised serious concerns. In July 2016, the younger son reported to the mother that the father became angry at him for refusing to eat his breakfast, and in response, the father “smashed a kitchen bar stool.” On June 13, 2017, during the fathers parenting time, the mother received a telephone call from the older son who was crying uncontrollably and could not speak. The older son ultimately ended the phone call, but the younger son called the mother less than an hour later also crying. Over the phone, the younger son whispered to the mother that they were afraid because the father threatened to hit them with wooden spoons. This event triggered the mothers emergency motion for temporary custody of the children. Since the temporary order entered, the father has not participated in supervised parenting time with the children. Instead, the father initiated contact with the children on his own terms, appearing at their school unannounced, showing up at other childrens birthday parties, and seeing the children at the dry cleaners and gas stations. The mother testified that the children “appear sad and confused” on days they see the father.
Since the temporary order was entered, the judge found that the children were doing well. The judge found that they were more confident and open to trying new things. The judge determined that though the children love the father, they have expressed fear of him and his anger. As a result, the judge deemed it in the best interests of the children to modify the original custody judgment and award the mother sole physical and legal custody of the children, with the father having supervised parenting time at a supervised visitation center.
Discussion. A court may modify an existing custody judgment if it finds that a “substantial change in circumstances” has occurred, and that modification is in the childrens best interests. G. L. c. 209C, § 20. “[T]he best interests analysis is a child-centered one that focuses on the specific needs and interests of a child and how these might best be met.” E.K. v. S.C., 97 Mass. App. Ct. 403, 408 (2020), quoting Charara v. Yatim, 78 Mass. App. Ct. 325, 336 (2010). “We review custody determinations for an abuse of discretion,” and will not disturb a judges determination “of which parent will promote a childs best interests,” unless that determination is “plainly wrong” (citations omitted). Macri v. Macri, 96 Mass. App. Ct. 362, 369 (2019).
1. Parental alienation. The father first argues that evidence of parental alienation was improperly admitted and considered by the judge without expert support. At trial, the guardian ad litem testified that, during her investigation, she found that the father had engaged in parental alienation. In addition, Winsryg-Wild testified that the younger sons need to please his father by not saying anything positive about the mother raised concerns about parental alienation. The father, however, did not object to this testimony at trial, nor did he argue that evidence of parental alienation could only be introduced through expert testimony. The argument is thus waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins. Corp. v. Bank of New England–Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989). (“An issue not raised or argued below may not be argued for the first time on appeal”).
Moreover, contrary to the fathers contentions, the judges custody determination was not based on any finding that parental alienation actually occurred.
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Rather, the judge properly considered the fathers conduct when father engaged in behavior aimed at alienating the children from their mother. See Hunter v. Rose, 463 Mass. 488, 494 (2012) (judge shall consider “whether one parent seeks to undermine the relationship a child has with the other parent”). Further, this consideration was not “critical” or “dispositive” to the judges custody determination as the father seems to suggest. It was but one of the many factors the judge took into account when considering whether there was a substantial change in circumstances, and whether modification of the custody judgment was in the best interests of the child.
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Specifically, the judge determined that the parties communication had deteriorated since the prior judgment, and as of June 2017, they had not communicated at all. See Mason v. Coleman, 447 Mass. 177, 182 (2006) (joint custody “generally appropriate only if the parties demonstrate an ability and desire to cooperate amicably and communicate with one another to raise the children”). Further, the judge considered that the children were being negatively impacted by the fathers behavior. The father failed to appreciate the younger sons need for therapy, which was detrimental to the son. The father also made the children uncomfortable by constantly recording their conversations and taking photographs of their bruises to prove or suggest that they were being abused by the mother. Additionally, the children expressed fear of their father. The father admitted to using a wooden spoon as a form of discipline, and he also appeared at their school unannounced and made inappropriate comments about the mother and threats to injure the mothers husband. While the judge recognized that the children love their father, he determined that the fathers “decision-making capability does not allow him to make decisions in the best interests of the children.” He, therefore, determined that it was in the childrens best interests to award the mother sole physical and legal custody, and permit the father to have parenting time with the children in a supervised setting, where they can have a “sense of security.” We discern no abuse of discretion in this determination. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse of discretion as decision that “falls outside the range of reasonable alternatives”).
2. The fathers use of derogatory language. The father next contends that his free speech rights were violated when the judge considered that he used derogatory language to describe the mother to third parties. We disagree.
While it is impermissible under the First Amendment for a judge to order a parent not to disparage the other, absent sufficient justification, judges, “guided by determining the best interests of the [children],” are permitted to factor into a custody determination, the parties “behavior, including any disparaging language.” Shak v. Shak, 484 Mass. 658, 664-665 (2020). See Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 738 (1996) (“Discretion allows the judge, when determining the best interests of children, to consider the widest range of permissible evidence”). That is precisely what the judge did here. We see no error.
3. Admission of events occurring prior to original custody judgment. Finally, the father argues that the judge erred in admitting evidence of events predating the original custody judgment. It is within the judges discretion to consider events and circumstances that took place prior to an earlier judgment. Reum v. Brazeau, 1 Mass. App. Ct. 549, 552 (1973). Specifically, in modification proceedings, judges are not precluded from doing so, and in fact, it may be necessary for them to consider events predating the earlier judgment to determine if there has been a substantial change in circumstances. See Hinds v. Hinds, 329 Mass. 190, 192 (1952). We discern no abuse of the judges broad discretion in admitting this evidence for that purpose. See Tammaro v. OBrien, 76 Mass. App. Ct. 254, 259 n.8 (2010).
Modification judgment affirmed.
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FOOTNOTES
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. To investigate custody, the judge appointed the same guardian ad litem that was appointed in the original custody case. The judge also appointed a different guardian ad litem to determine if the childrens therapist-patient privilege should be waived.
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. The father was arrested in 2014 for assault and battery of the mother.
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. The father testified that the word “cunt” has a different connotation in Australia, where he is originally from. However, the judge found that the father has been in the United States for many years.
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. While the judge noted that both the guardian ad litem and Winsryg-Wild believed that the father had engaged in parental alienation, he did not make any findings indicating that the father was successful in alienating the children from their mother.
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. Notably, the father filed the initial complaint for modification, implicitly asserting that there was a substantial change in the parties circumstances.
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. The mothers request for appellate attorneys fees is denied.