Where a judge modified the parenting time provisions of a divorce judgement, a remand is necessary because it is unclear whether the judge found modification justified by a substantial change in circumstanes of the parties or their child.
"...As most relevant here, the judge ordered that (1) "efective immediatley, the father's parenting time shall be alternate weekends from Friday at 4:00 P.M. until Sunday at 6:00 P.M. and in the event Monday is a holiday or there is otherwise no school on Monday, the father's parenting time shall be extended until Monday at 6:00 P.M. and (2) the father's vacation time...shall take place when school is not in session.' The father argues on appeal that the judge erred by ordering these and other modifications without finding a substantial change of circumstances to warrant them.
"The issue is goverened by G.L.c. 209C, S20, which provides that 'no modification concerning custody or visitation shall be granted unless the court finds that a substantial change in the circumstances of the parties or the child has occurred and finds modification to be in the child's best interests.' As this language makes clear, a finding of a substantial change of circumstances is a statutory prerequisite to modifying a custody or visitation order...
"Here, because of internal inconsistencies in the judge's rationale, it is unclear whether she found modification justified by a substantial change in circumstances of the parties or the child. On the one hand, the judge stated that 'neither party has demonstrated a substantial change in the circumstances of either the parties or the child.' But on the other, the judge plainly identified the evidentiary basis for each of the modifications she ordered. In particular, with respect to the two modifications identified above, the judge found them warranted by evidence that, since the judgement of paternity entered, the child had been diagnosed with autism spectrum disorder and was put on an individualized education plan, entitling him to free preschool services. The judge further found it would be in the child's best interests to be attending preschool full time.
"This evidence could reasonbly support a finding of a substantial change in circumstances justifying modification of the parenting schedule. We cannot determine, however, whether such a finding is implicit in the judge's rationale. Thus, remand for clarification is necessary on this issue...
"Paragraphs 1,3 and 4 of the amended judgement of modifcation dated January 12, 2018 are vacated and the matter is remanded for further proceedings consistent with the memorandum and order. Pending further order, the parenting schedule established in the April 24, 2015, judgement of paternity shall remain in effect. The remainder of the amended judgement of modification dated January 12, 2018, is affirmed,. The judgement dated November 28, 2017, on the complaint for contempt is affirmed."
