Massachusetts: A complaint for modification, filed on April 21, 2006, was heard by David G. Sacks, J., on a motion for summary judgment. By: Paula M.

Link for opinion: http://www.massachusetts-divorce.com/cases/RS-V-MP.htm  

Citation: R.S. vs, M.P. Docket 07-P-619  March 11, 2008 – October 9, 2008, Hampden County

The Probate court dismissed the complaint for modification filed by Gelinas, former husband, wherein he sought an increase in visitation with the two minor children of the parties marriage.  Vacating the judgment and remand the matter to the Probate and Family Court for further proceedings consistent with this opinion. 

The summary judgment reflect the following. Two children, were born of the parties marriage, the court ordered that the mother was to have physical custody of the children and that the father was to have liberal and reasonable rights of visitation, including , without limitation.

Arguments about the mother not having enough time to spend with children, due the birth of her younger children, that the judge wanted affidavits  from the children.  In his judgment the father could not demonstrate a material and substantial change in circumstances this case so as to require modification of visitation.

Concerning the mothers availability for the parties children in light of her new family obligations and the  impact on the parties children of any possible inattention by the mother.

The judgment on motion for summary judgment regarding visitation is vacated and the matter is remanded to the Probate and Family Curt for further proceedings consistent with this opinion.

The husband was to have the children every other weekend from Friday evening at 6:00 p.m. until Monday evening after dinner or until 7:30 P.M., providing he took Monday off from work otherwise the children were to be returned to the mother Sunday evening.  The husband was also to have the children on and additional midweek overnight during every alternating week at times specified by the judgment. In addition the judgment contained provisions for visitation with the children during vacations and on holidays.

The father was granted leave to file a supplemental appendix subject to possible further action by the panel designated to decide the appeal. This was to coordinate visitation schedule adjustments to extensive changes  in parenting time and the children’s schedules.

Although the father  asserts on appeal that the children’s statements are admissible as evidence of their states of mind, his opposition to the mother’s motion for summary judgment suggest that he was seeking to have the statements used as substantive evidence.

The court do not rule out the possibility  that a grant of summary judgment may be appropriate where the only evidence in support of a complaint for modification of visitation is that the custodial parent has remarried and has had additional children.

While the court conclude that summary judgment should not have entered for the mother, we express no opinion whether the complaint for modification should be allowed.