MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Andrew Bennett (father) and Kelsi Nelson (mother) are the parents of one minor child. The father appeals from a judgment of the Probate and Family Court ordering that the child remain in the mothers primary custody. On appeal, the father claims the judgment lacked factual basis and was not in the childs best interests. We affirm.
Discussion. We review a custody modification judgment for “abuse of discretion or other error of law.” See E.K. v. S.C., 97 Mass. App. Ct. 403, 409 (2020), quoting Murray v. Super, 87 Mass. App. Ct. 146, 148 (2015). “[A] judges discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives.” E.K., supra, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The father claims that the judge abused his discretion by making factual findings that were inconsistent with the evidence at trial. The record before us on appeal is incomplete, but even with a complete record, “[a] trial judges findings of fact will not be set aside unless clearly erroneous.” E.K., 97 Mass. App. Ct. at 409, quoting Altomare v. Altomare, 77 Mass. App. Ct. 601, 602 (2010). “A finding is clearly erroneous when there is no evidence to support it, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” (quotation and citation omitted). Custody of Eleanor, 414 Mass. 795, 799 (1993). We give deference to “the judges assessment of the weight of the evidence and the credibility of the witnesses.” Id.
Here, the judge held a two-day trial in November 2019 on several modification and contempt complaints the parties filed during 2018. After trial, the judge ordered the continuation of shared legal custody; the continuation of the mothers primary physical custody; and unsupervised visitation by the father at least twice per week. The judges findings of fact included the childs history of developmental delays while living with the father and his progress at school after transferring to the mothers custody. The judge noted the childs behavioral problems but attributed them to the changes occurring in his life, including the transfer of custody from the father to the mother. The judge further found that while both parents had difficulty co-parenting, the mother had more consistently attempted to co-parent. The fathers behavior, on the other hand, indicated efforts to alienate the child from the mother.
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The judges factual findings were not clearly erroneous. The findings were based on two days of testimony from the parties and their witnesses. The judge also reviewed multiple trial exhibits including state agencies records of their interactions with the parties. The record before us, although incomplete, contains nothing to suggest that the judge overlooked or improperly weighed any critical fact. See E.K., 97 Mass. App. Ct. at 409; L.L., 470 Mass. at 185 n.27. Moreover, the judge was best positioned to assess the witnesses credibility and evaluate the evidence. See Custody of Eleanor, 414 Mass. at 800. Given the deference we owe to the judge, we find no error in the factual basis underlying the judgment. See E.K., 97 Mass. App. Ct. at 409 (no clear error where judge issued detailed findings of fact supported by the record and facts supported legal conclusions).
The father also claims that the modification judgment was not in the childs best interests. “[T]he determination of which parent will promote a childs best interests rests within the discretion of the judge ․ [whose] findings ․ must stand unless they are plainly wrong.” E.K., 97 Mass. App. Ct. at 408, quoting Malachi M. v. Quintina Q., 483 Mass. 725, 740 (2019). Because the factual findings here were not clearly erroneous, the determination of the childs best interests was within the judges discretion. See E.K., supra. The custody decision did not fall outside the range of reasonable alternatives and there was no abuse of discretion. See L.L., 470 Mass. at 185 n.27.
Judgment affirmed.
FOOTNOTES
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. Examples of this behavior included refusing parenting time with the mother, defying court orders, refusing to inform the mother of the childs providers, and failing to inform the childs school of the mothers existence. The father also made allegations against the mother to the Department of Children and Families (DCF), which DCF found unsupported.