C.P. v. R.S.
C.P. v. R.S.
Opinion of the Court
This is a custody dispute between C.P, the biological father (father) of a young boy, whom we shall call Samuel, and R.S., the husband (husband) of the child’s deceased mother (A.S.). The father appeals from a Probate Court decision finding that he was unfit, awarding custody of Samuel to the husband, and allowing the father to have visitation. On appeal, the father contends that the probate judge’s decision lacked a factual basis on which to find that the father is unfit to parent Samuel, and was error as a matter of law. We affirm, for, in the last analysis, this is an instance in which “consideration of what is in a child’s best interests . . . weights] more heavily than the genetic link between parent and child.” Paternity of Cheryl, 434 Mass. 23, 31 (2001).
Background. The catalyst for this dispute was the untimely
A.S.’s relationship with the father led to her eight-month separation from the husband, though they had reconciled by the time Samuel was born. When she discovered that she was pregnant, A.S. told the father and also told him that the child was his. Initially, he was supportive and joined her when she visited the obstetrician during the course of her pregnancy. By September 12, 2003, however, conflicts had broken out and the father did not attend Samuel’s birth. Instead, the husband attended.
The birth certificate lists the husband as the child’s father and they share the same last name. Samuel lived solely with A.S., the husband, and Frederick until A.S.’s death in 2006. Thereafter, Samuel continued to live solely with the husband and Frederick.
While A.S. was alive, she brought Samuel to the father’s home for visits for several hours each Friday and on some weekends. As Samuel approached his second birthday, A.S. left him with the father for overnight visits. Until A.S.’s death, the father provided A.S. with some financial support for Samuel’s needs, though the amount is unclear from the record.
Throughout Samuel’s life, the husband has treated him as his son. Although the husband knew that A.S. brought Samuel to the father’s home for visits, he never officially questioned Samuel’s paternity. At trial, he testified that Samuel was his son and that he had treated him as his son for his entire life. In turn, Samuel identifies the husband as “daddy.” Since A.S.’s death in 2006, the husband has assumed all parenting of both Samuel and Frederick and receives some support from both A.S.’s mother (maternal grandmother) and the husband’s mother (paternal grandmother). Samuel and Frederick enjoy a strong brotherly bond. The judge found that “[t]hey play sports together, walk to school together,[
Before A.S.’s death, the father never formally challenged
On September 24, 2009, a second trial began. At the conclusion of the trial, the judge found, on the basis of a genetic marker test that had been introduced in evidence, that the father was in fact Samuel’s father, a conclusion the husband did not challenge. She also found that, under the specific circumstances the evidence revealed, the father is unfit to parent Samuel and that Samuel’s best interests would be served by awarding legal and physical custody of him to the husband. Recognizing that A.S. “felt it was important to foster a relationship between [Samuel] and his biological father,” the trial judge also ordered visitation between the father and Samuel. Initially, the visits are to occur one day each week after school and every Saturday, and they will eventually transition to a schedule that includes overnight visits during the week and alternating full weekends. In entering that order, the judge reasoned that the visitation schedule “will not only allow the [father] to reestablish the prior relationship between [the father] and [Samuel], but will do so without disrupting the stable home environment to which the child has grown accustomed.”
Analysis. The judge’s finding of paternity is supported by clear and convincing evidence, see C.C. v. A.B., 406 Mass. 679, 686-689 (1990), and it is well established that “[c]ustody of a child belongs to a parent unless that parent is unfit.” Guardian
The probate judge was clearly aware of these standards when she made her careful and thorough factual findings and legal conclusions. The judge’s ultimate finding, based on numerous subsidiary findings, was consistent with the principle articulated by the court in Guardianship of Estelle, supra at 582 (trial judge must determine whether “the father is fit to parent this child in these circumstances at this time”).
The father interacted with Samuel in various ways and at various points after his birth. Prior to her death, A.S. brought Samuel to the father’s home for visits and even permitted him to stay overnight occasionally. That contact, though, hardly compares to the active parenting role the husband has maintained from the very moment Samuel was bom, a role that has increased and deepened since A.S.’s death.
The judge found that “[s]ince [A.S.]’s death, both the [father’s] financial support for and [his] visits with [Samuel] ceased,” and
Being an occasional caregiver is far different from providing the daily necessities of life to Samuel, encouraging his loving relationships with family members, and providing and supporting schooling, sports, and other activities that are the hallmarks of a healthy upbringing. The husband, not the father, is the one who has done all of that.
Among the familial relationships the husband has fostered are Samuel’s bonds with his brother Frederick and with both of his grandmothers. The bond between Frederick and Samuel is undisputed and his interaction with his brother encompasses much of his day. The record reflects that with Frederick, Samuel sees their paternal grandmother daily and their maternal grandmother weekly. There is no indication from the record that these relationships would continue were custody awarded to the father.
In this case, the trial judge found that in light of Samuel’s relationship with the husband and his brother and grandparents, as well as his father’s limited contact, it would not be in Samuel’s best interests to transfer custody to the father. That finding is firmly rooted in the evidence and we agree with it.
Judgment affirmed.
The testimony reflects that they walk home from school every day together, but they are driven to school in the mornings.
The father testified that directly after Samuel was born he went to the Worcester Division of the Probate and Family Court Department and “asked the clerk for a notification to where I have rights to this child.” He testified that he received some forms, but never completed them or returned to the court again.
In so doing, the judge made precisely the finding that was missing from Estelle and required a remand for further consideration. Ibid..
The record contains ample support for those findings. At trial, the father testified that he had seen Samuel just once after A.S.’s death, at her funeral. The husband testified that he never prevented the father from seeing Samuel, but heard from him only infrequently — two or three times — after A.S. died. The husband also testified that he and Samuel met the father once at a fast food restaurant. There was also testimony that Samuel’s maternal grandmother helped orchestrate several visits between the father and Samuel.
In fact, there is evidence that they would not continue. While the father and the maternal grandmother have, in the past, had an amicable relationship, the father broke ties with her after A.S. died.
Given the result we reach, we have no occasion to consider whether and to what extent the husband’s rights as a de facto parent, see E.N.O. v. L.M.M., 429 Mass. 824, 829-830, cert, denied, 528 U.S. 1005 (1999), or the need for finality in such a relationship when viewed from the child’s perspective, take precedence in a case like this over the rights the father seeks to assert.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.