Civil actions filed in the Plymouth Division of the Probate and Family Court Department on January 15, 2016 and July 3, 2018.

      A complaint for modification, filed on July 26, 2021, was heard by Lisa A. Roberts, J., and a motion for relief from judgment, filed on April 27, 2023, was heard by Megan E. English Braga, J.

      Masha Zilberman, of New York, for the mother.

      Ann Shepard, pro se.

      Michael J Ryan, pro se.

      Andrew L. Cohen, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

      DITKOFF, J.  In this G. L. c. 209C parentage case, the record reflects that the parties agreed that the paternal grandmother would have temporary physical custody of the three children until a trial could be held to determine which parent should have permanent custody.  None of the parties, all of whom appear to be indigent, were represented by counsel.  When the mother failed to appear at the next court date, a Probate and Family Court judge issued a decree (apparently with the consent of the father) granting the grandmother permanent physical custody.  Over a year later, the mother filed a motion for relief from judgment, primarily arguing that she had a right to appointed counsel.  The judge denied the motion on the ground that it was untimely.

      We construe G. L. c. 209A, § 7, as requiring the appointment of counsel upon request for indigent parents in the rare parentage case where custody to a nonparent without the consent of both parents is contemplated.  Nonetheless, we affirm the denial of the motion for relief from judgment, as the mother has failed to demonstrate that the judgment was void or that the judge abused her discretion in finding that her motion was untimely.  If the case goes forward, the parents presumably will be entitled to appointed counsel to litigate a request for removal of custody from the grandmother if they meet the indigency standards for appointed counsel.[1]

      1.  Background.  The parties in this case have never married.  In January 2016, the father filed a complaint and emergency motion for custody of his two sons, one of whom was one year old and the other of whom was two years old.  The father alleged that the mother had issues with drug use and that he had been instructed by two Department of Children and Families (DCF) employees to file for custody.  The parties, both pro se, appeared for a hearing and agreed that the father would have sole physical custody of the children.

      Later that year, the mother obtained employment.  In January 2017, the parties, both pro se, appeared for a hearing and agreed that they would share legal custody, the father would have sole physical custody, the mother would have parenting time on Saturdays, and the mother would pay child support.  The judge adopted this agreement as a judgment of the court.  The mother later explained that she agreed to this because she did not have proper housing for two children.

      In October 2017, the parties had a third child together.  In July 2018, the father filed a complaint seeking emergency custody of the third child.  The father alleged that, on a particular Saturday in June, the mother, while under the influence of drugs, struck a telephone pole with a motor vehicle in which all three children were passengers.  The parties, both pro se, appeared for a hearing and agreed to share legal custody of the third child, with the mother having primary physical custody.  Again, the judge adopted this agreement as a judgment of the court.

      In November 2018, the mother filed a complaint for modification seeking physical custody of the two older children.  She alleged that the father had been incarcerated and that the older children were living with their paternal grandmother.  An emergency hearing was held, and the judge apparently deferred action until the matter could be tried.

      In January 2020, the father filed a complaint for modification seeking physical custody of the third child.  The father alleged that the mother had already been leaving the child with him for the majority of the time.  He alleged that the mother had left the child with him for the weekend and then appeared "at 10pm messed up on drugs."  He refused to turn the child over to her.  The parties, both pro se, appeared for a hearing and agreed that the father would have temporary physical custody of the third child while the mother sought treatment.

      In July 2021, the father was incarcerated and had several open criminal cases.  The mother filed a complaint for modification seeking physical custody of the children.  By August, the father had been released from custody and he answered the complaint by asserting that the mother continued to use drugs and that "she prostitutes herself."

      The parties, both pro se, appeared for a scheduled pretrial conference on November 5, 2021.  The mother was not prepared for the conference and requested a continuance to seek counsel.  The judge's written order reflects that the parties agreed that, in the meantime, the paternal grandmother would have physical custody of the three children during the week and that the mother would have the children during the weekends and on Wednesday afternoons.  The judge noted that "DCF expressed no concerns about the children remaining in the physical custody of Paternal Grandmother," adopted the parties' agreement, and rescheduled the pretrial conference for March 14, 2022.

      On March 14, 2022, the father and the grandmother appeared (both pro se), but the mother did not.  The judge, apparently with the agreement of the father, issued a judgment awarding physical custody of the three children to the paternal grandmother and granting the mother parenting time on Saturdays.

      In November 2022, the grandmother filed a complaint for modification, seeking child support and a reduction in the mother's parenting time.  She alleged that the mother was making negative comments about the father and that the children had run away from the mother.

      In January 2023, the mother -- now represented by counsel -- filed an answer denying the grandmother's allegations.  Then, on April 27, 2023, the mother filed a motion pursuant to Mass. R. Dom. Rel. P. 60 (b) for relief from the March 2022 judgment.  The mother asserted that she had missed the March 2022 court date because of "a medical emergency as I had a seizure that morning."  She further argued that she was deprived of due process because she was not provided with an attorney.

      At the hearing before a different judge (motion judge), the mother acknowledged that the grandmother should have temporary custody of the children, but asserted that permanent custody could not be awarded to the grandmother until the mother's fitness was determined in a proceeding at which she had counsel.  The mother asserted that she had a doctor's note that would support her claim of a seizure.  The motion judge asked for it to be provided, but it appears that no such note was provided to the motion judge.

      The motion judge denied the motion for relief from judgment.  The judge noted that the "right to counsel has not been extended to fitness determinations pursuant to G. L. c. 209C, § 10(d)."  She then held that, "[e]ven if Mother was entitled to counsel, the Court finds that Mother did not bring her Motion for Relief from Judgment within a reasonable amount of time."  The judge explained that the mother had provided no reason why she had not informed the court of her medical emergency promptly upon her recovery, but rather waited more than a year to take action.  This appeal followed.

      2.  Standard of review.  Under Mass. R. Dom. Rel. P. 60 (b) (4) and (6), a judge may grant relief from judgment when "the judgment is void" or there exists "any other reason justifying relief from the operation of the judgment."  Such a motion must "be made within a reasonable time."  Mass. R. Dom. Rel. P. 60 (b).  "A motion for relief under rule 60(b) is directed to the sound discretion of the motion judge, and we review the judge's ruling for abuse of discretion."  Dilanian v. Dilanian, 94 Mass. App. Ct. 505, 515 (2018), quoting Ulin v. Polansky, 83 Mass. App. Ct. 303, 308 (2013).  A "determination of what constitutes a reasonable time is similarly 'addressed solely to the judge's discretion.'"  Owens v. Mukendi, 448 Mass. 66, 72 (2006), quoting Parrell v. Keenan, 389 Mass. 809, 815 (1983).  Accord Santagate v. Tower, 64 Mass. App. Ct. 324, 327 (2005).  This determination requires an examination of "the individual circumstances of each case," and involves a consideration of the children's interests, as well as the interests of the parties.  Paternity of Cheryl, 434 Mass. 23, 30, 33-34 (2001).

      3.  Right to appointed counsel.  At the start, it is worthwhile to distinguish the instant case, where there is an order of custody to a nonparent, from the more common parentage case, where custody is awarded to one or both parents.  Once parentage is established, "the court may award custody of a nonmarital child to either parent or to them jointly . . . in the best interests of the child."  G. L. c. 209C, § 10 (a).[2]  See Smith v. McDonald, 458 Mass. 540, 545 (2010).  The court is directed, where possible, to "preserve the relationship between the child and the primary caretaker parent," to "consider where and with whom the child has resided within the six months immediately preceding proceedings," and to consider "whether one or both of the parents has established a personal and parental relationship with the child."  G. L. c. 209C, § 10 (a).  These considerations "neither replace the 'best interests of child' standard nor limit the factors that a judge may consider in determining what custodial arrangements are in the best interests of the child."  Custody of Kali, 439 Mass. 834, 843-844 (2003).

      Determining custody arrangements between two separated parents, although always challenging, is a core function and strength of the Probate and Family Court, and a judge in this context "is afforded considerable freedom to identify pertinent factors in assessing the welfare of the child and weigh them as she sees fit."  Smith, 458 Mass. at 547.  "The determination of which parent will promote a child's best interests rests within the discretion of the judge . . . [whose] findings in a custody case 'must stand unless they are plainly wrong.'"  J.S. v. C.C., 454 Mass. 652, 656 (2009), quoting Custody of Kali, 439 Mass. at 845.  The mother makes no claim that parents have a right to appointed counsel when the question is which parent should have custody.  This is not the practice in divorce proceedings.  Cf. Balboni v. Balboni, 39 Mass. App. Ct. 210, 211 (1995) (counsel to be appointed in divorce action if custody to government is imminent).

      On rare occasion, the parents agree that neither should have custody of the child.  The statute provides that, "[i]f a person who is not a parent of the child requests custody, the court may order custody to that person if it is in the best interests of the child and if the written consent of both parents or the surviving parent is filed with the court."  G. L. c. 209C, § 10 (d).  See R.D. v. A.H., 454 Mass. 706, 714-715 (2009); C.M. v. P.R., 420 Mass. 220, 223 n.6 (1995).  Again, the mother makes no claim that the parents have a right to appointed counsel when they voluntarily consent to a change in custody.  This is not the practice in voluntary adoption proceedings.

      On even rarer occasion, there is a question whether both parents should be involuntarily denied custody of a child.  The Committee for Public Counsel Services informs us that there are "only a handful of such proceedings each year."  In that circumstance, the statute allows an award of custody to a nonparent "if it is in the best interests of the child and if both parents or the surviving parent are unfit to have custody or if one is unfit and the other files his written consent in court."  G. L. c. 209C, § 10 (d).  See R.D., 454 Mass. at 714-715.

      The mother argues that, in this final rare circumstance, she is constitutionally entitled to the appointment of counsel.[3]  Her position enjoys substantial support in the case law.  The Supreme Judicial Court (like every court to consider this question) long ago determined that "an indigent parent has a constitutional right to court-appointed counsel in a contested proceeding to terminate parental rights."  Department of Pub. Welfare v. J.K.B., 379 Mass. 1, 6 (1979).  This right has been extended to the context where a private party, rather than the government, seeks custody of a child.  "Because of the impact of a guardianship on the parent-child relationship, and the particular nature of the fundamental rights at stake, an indigent parent whose child is the subject of a guardianship proceeding is entitled to, and must be furnished with, counsel in the same manner as an indigent parent whose parental rights are at stake in a termination proceeding or, similarly, in a care and protection proceeding."  Guardianship of V.V., 470 Mass. 590, 592-593 (2015).

      A parentage case where a judge is considering a request to order custody to a nonparent is substantially similar to a guardianship case.  A guardianship case may occur whether or not the child's parents were or are married to each other, but such a difference is insignificant, as the Legislature has strictly declared that "[c]hildren born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children."  G. L. c. 209C, § 1.  Accord A.D. v. K.S., 495 Mass. 727, 733-734 (2025).

      We need not decide the constitutional issue, however, because G. L. c. 209C, § 7, already states, "In actions in which custody or visitation are contested, court may appoint counsel to represent either party whenever the interests of justice require."  "When statutory language is susceptible of multiple interpretations, a court should avoid a construction that raises constitutional doubts and instead should adopt a construction that avoids potential constitutional infirmity."  Oracle, USA, Inc. v. Commissioner of Revenue, 487 Mass. 518, 525 (2021).  Accord Chiulli v. Liberty Mut. Ins., Inc., 97 Mass. App Ct. 248, 257 n.16 (2020).  Here, a natural construction of the phrase "whenever the interests of justice require" is that it includes any parentage case where the court is considering a contested request to award custody to a nonparent.  Accordingly, we construe G. L. c. 209C, § 7, to require the appointment of counsel for indigent parents when the court is considering awarding custody to a nonparent under G. L. c. 209C, § 10 (d), without parental consent, except in the most exceptional circumstances.[4]  And, because the right to counsel normally involves being informed of that right, these parents must be informed that they are entitled to the appointment of counsel if they are indigent and the court is considering awarding custody to a nonparent without their consent.  See, e.g., L.B. v. Chief Justice of the Probate & Family Court Dep't, 474 Mass. 231, 243 (2016); Guardianship of V.V., 470 Mass. at 594.

      4.  Motion for relief from judgment.  a.  Void judgment.  Informed by this understanding of G. L. c. 209C, § 7, we now turn to the question whether the motion judge abused her discretion in denying the mother's motion for relief from judgment.  Because "[t]here is no time limit with respect to rule 60(b)(4) motions based on void judgments," Uzoma v. Okereke, 88 Mass. App. Ct. 330, 331 (2015), we first consider whether the mother has demonstrated that the judgment of custody is void.

      "A judgment is void if the court from which it issues . . . failed to provide due process of law."  I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 557 (2013), quoting Harris v. Sannella, 400 Mass. 392, 395 (1987).  Accord M.M. v. D.A., 79 Mass. App. Ct. 197, 208 (2011).  Usually, due process is provided where a party has "actual, and thus adequate, notice . . . and a meaningful opportunity to be heard in answer."  Jones v. Boykan, 464 Mass. 285, 290 (2013).  Accord New Bedford Hous. Auth. v. Olan, 435 Mass. 364, 372 (2001).

      Under the proper circumstances, denial of appointed counsel may deprive a party of a meaningful opportunity to be heard and thus of due process.  For example, in Adoption of Rory, 80 Mass. App. Ct. 454, 459 (2011), the appearance of the father's appointed counsel was improperly struck and, because he was not in attendance himself, two termination trials proceeded without anyone advocating for the father's interests.  In that circumstance, where the judge literally prevented the father from being heard at all, we easily concluded that the judgment was void.  Id. at 459.

      A few years later, in Gianareles v. Zegarowski, 467 Mass. 1012, 1012-1013 (2014), the Supreme Judicial Court considered a motion for relief from a judgment where a seventeen year old mother, without counsel, opposed her grandmother's petition for guardianship of her infant child.  A month before trial (and shortly after she turned eighteen), she agreed to the guardianship, allegedly because the guardian's attorney told her that otherwise her parental rights would be terminated.  Id. at 1013.  A few months later, she moved both to remove the guardian and to void the guardianship judgment.  Id.  The Supreme Judicial Court denied her extraordinary relief under G. L. c. 211, § 3, because she had an adequate appellate remedy in an appeal of the denial of the motion for relief from judgment.  Gianareles, supra at 1013-1014.  The court then stated in dicta, "We can conceive of no good reason why the petitioner in this case, in her appeal from the denial of her rule 60 (b) (4) motion, if she is successful on the merits of her claim that she had, and was deprived of, a constitutional right to counsel in the underlying guardianship proceeding, would not be entitled to precisely the same relief [vacatur of the judgment] here."  Gianareles, supra at 1014.  The contours of that prediction were not explored.

      Fortunately for justice, but unfortunately for our current purposes, the mother succeeded in her motion to remove the guardian.  Guardianship of V.V., 470 Mass. at 591.  Accordingly, the Supreme Judicial Court (which had taken direct appellate review of her appeal) dismissed the appeal as moot and did not reach the question whether the judgment was void or merely in error.  Id.

      We need not resolve this conundrum, because the mother has failed to demonstrate that she was deprived of appointed counsel here.  So far as the record reflects, on November 5, 2021, the judge was adjudicating which parent would have custody of the children, and the parties all agreed to temporary custody by the grandmother in the interim.  This was not a situation that would require the appointment of counsel, as it was not a contested temporary custody order and there is no indication that permanent custody by the grandmother was being considered.  Then, on March 14, 2022, the mother failed to appear without warning or explanation and thus could not have been appointed counsel.  See Adoption of Holly, 432 Mass. 680, 689 (2000); Adoption of Valentina, 97 Mass. App. Ct. 130, 135 (2020).

      We acknowledge that the mother asserts that she did not actually agree to the paternal grandmother's having temporary custody.  We are hampered in this regard by the fact that we have not been provided with transcripts of either hearing.  It is the appellant's burden to provide those parts of the transcripts that are necessary for reviewing the appellant's claims.  See Zaleskas v. Brigham & Women's Hosp., 97 Mass. App. Ct. 55, 73 (2020); Butts v. Freedman, 96 Mass. App. Ct. 827, 832 n.8 (2020).  We are not blind to the very real possibility that there is more to this story, but the mother has not shown that the judgment was void on this appellate record.

      b.  Other reasons for relief from judgment.  We understand the mother's motion for relief from judgment as also invoking Mass. R. Dom. Rel. P. 60 (b) (6), which allows relief for "any other reason justifying relief from the operation of the judgment."  Such a motion, as stated, must "be made within a reasonable time."  Mass. R. Dom. Rel. P. 60 (b).  Here, the judgment was entered on March 15, 2022, and docketed on April 14, 2022.  The mother's motion for relief from judgment was not filed for over a year, on April 27, 2023.

      The mother stated in an affidavit that she missed the March 2022 hearing because she "had a seizure that morning," a strong ground for relief from judgment.  See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 432 (1979).  Putting aside the fact that the mother apparently failed to provide any doctor's note to corroborate this claim despite the judge's request for one, this was the sort of issue that one would expect to have been brought to the judge's attention promptly after the medical emergency subsided.  See Fort Point Invs., LLC v. Kirunge-Smith, 103 Mass. App. Ct. 758, 763 (2024) (motion based on medical issues not timely where not filed until nearly ten months after default judgment).  This is particularly so in the context of determining custody for three children, where the interests of the children require particular attention to prompt action.  See Paternity of Cheryl, 434 Mass. at 33-34.  As no compelling explanation was provided for the delay in requesting relief, we discern no abuse of discretion in the motion judge's decision that the mother's motion for relief from judgment was untimely.

      5.  Moving forward.  Although we leave the judgment of physical custody for the paternal grandmother in place for now, we note that even a parent who has been found unfit may obtain a trial on a petition to regain physical custody by "producing some credible evidence of changed circumstances since the initial [custody] determination."  See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 456 (2018).  Accord G. L. c. 209C, § 20.  Once that burden of production is satisfied, "the [custodian] then [bears] the ultimate burden of proving, by clear and convincing evidence, that the mother remain[s] unfit and that continuation of the [order] serve[s] [the children's] best interest."  See Guardianship of Kelvin, supra.

      If the mother files such a petition to remove the children from the grandmother's physical custody, she will be entitled to appointed counsel if she remains indigent, and must be informed of that entitlement.  Cf. Guardianship of V.V., 470 Mass. at 592 (right applies whenever "child is the subject of a guardianship proceeding").  The father too would presumably be entitled to appointed counsel in litigating such a petition, if he is indigent.[5]  The order dated July 31, 2023, denying the motion for relief from judgment, is affirmed.

So ordered.

footnotes

[1] We gratefully acknowledge the amicus brief submitted by Committee for Public Counsel Services.

[2] The parentage chapter was extensively amended in August 2024, mainly to remove archaic language that assumed children uniformly have one parent identifying as a male and one parent identifying as a female.  See A.D. v. K.S., 495 Mass. 727, 731 n.9 (2025), citing St. 2024, c. 166 (effective Jan. 1, 2025).  Nothing in this opinion is affected by these amendments.  For the sake of simplicity, we quote from the current version.

[3] Obviously, the right to appointed counsel extends only to the indigent, but it is evident that the mother is indigent.  See Commonwealth v. Fico, 462 Mass. 737, 740 (2012).

[4] For example, the doctrine of forfeiture of counsel may apply in certain circumstances, such as when a person commits acts of violence against appointed counsel.  See Commonwealth v. Means, 454 Mass. 81, 94-95 (2009).  Similarly, the doctrine of abandonment of counsel may apply when, after being warned, a person "engages in dilatory or abusive conduct towards his attorney."  Commonwealth v. Clemens, 77 Mass. App. Ct. 232, 241 (2010), quoting Means, supra at 90-91.  Finally, a parent may lose the assistance of counsel if the parent "repeatedly fails to communicate with . . . counsel."  Adoption of Valentina, 97 Mass. App. Ct. 130, 135 (2020).

[5] We note that the Committee for Public Counsel Services makes a strong argument that G. L. c. 190B, § 5-106 (a), would require the appointment of counsel for children as well in this circumstance.  See Matter of Angela, 445 Mass. 55, 61-62 (2005) (child has due process right in proceeding that impacts parent-child relationship).  Although that question is not before us, we recommend careful consideration of that question to any judge considering placing a child with a nonparent without the consent of the parents in a parentage case.