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Parents have a fundamental interest in their relationships with their children that is constitutionally protected. However, the strong expression of public policy by the Legislature that a child's welfare must be the paramount concern when a judge determines custody, Mass. Gen. Laws ch. 208, §§ 31 and 31A, and Mass. Gen. Laws ch. 209A, § 3(d), means that a judge is authorized not only to order sole legal and physical custody with one parent when it serves the best interests of the child, but also that a judge is authorized to impose conditions and restrictions on and to suspend any visitation by the other parent when it is determined that visitation would not be in the best interests of the child. In cases such as this, a reviewing court's duty is to ensure that the record reflects that all relevant factors have been considered by the judge, and that the decision is based on a fair weighing of the factors.
Defendant Yan Schechter and plaintiff Karina Schechter married in 2002. Defendant’s emotional abuse of the mother was constant and continued during their marriage. Plaintiff gave birth in 2003. On May 2009, the defendant and the plaintiff separated. Soon after, the defendant left the family home. On June 2009, the plaintiff filed a complaint for divorce, and on September 2009, she filed a separate complaint in which she sought protection from abuse under G. L. c. 209A. As part of the proceedings, a psychologist was appointed as guardian ad litem (GAL) on behalf of the child to evaluate the issues of custody and parenting time, and later the issue of removal. The GAL issued an extensive report, wherein it was concluded that the defendant dominated both the plaintiff and the child with his words and actions while the plaintiff allowed the child to be himself. The probate judge awarded sole legal and physical custody of the child to the plaintiff, and suspended defendant’s visitation and contact with the child for one year. The probate judge further allowed the plaintiff to remove the child from Massachusetts to New York or another State if the opportunity for employment and security was more readily available elsewhere. Defendant challenged the decision.
The court held that an award of sole legal and physical custody of the parties' child to the mother in the parties' divorce action, and the suspension of visitation and contact for one year with the father, was warranted under Mass. Gen. Laws ch. 208, § 31A because the defendant was domineering, he was physically, emotionally, and financially abusive to the plaintiff under Mass. Gen. Laws ch. 209A, §§ 1 and 3, and the custody award was in the child's best interest. According to the court, due to the defendant's chronic misbehavior, any contact during a period at least of one year between the defendant and the child would cause the child serious emotional harm. However, the court held that it was improper to allow the plaintiff to remove the child to another State for employment and security purposes because the order did not comply with Mass. Gen. Laws ch. 208, § 30, in that it impermissibly left the decision whether to remove and where to remove solely in the hands of the mother. Consequently, the case was remanded for an evidentiary hearing on the plaintiff's request for removal.