Court Upholds Modification Judgment Shifting Custody of Children to Father When Record Reveals Mother’s Conduct Toward Father Constituted A Material Change In Circumstance Necessitating Modification In The Best Interests Of The Children.

In a recent Rule 23 decision, a panel of the Massachusetts Appeals Court upheld the lower court’s modification judgment shifting legal and primary physical custody of the parties’ two minor children from their mother to their father, noting the mother’s conduct towards the father post-divorce constituted the requisite material change in circumstance, and modification was in the best interests of the children.

The parties in Kalish v. Kalish (2021 WL 5238719) were divorced in April 2017 with the entry of a judgment incorporating the parties’ agreement that, in relevant part, provided the parties with joint legal custody and the mother with primary physical custody of the parties’ two minor children.  By agreement of the parties, the judgment was later modified to transfer sole legal custody of the children to the mother.  With the father’s agreement, the mother and the children relocated from Massachusetts to Texas.

Not long thereafter, the parties’ relationship deteriorated and, in 2018, contested litigation ensued, with the father seeking sole legal and primary physical custody of the children, and the mother seeking the court’s approval of her removal of the children from Massachusetts to Texas. Following a 4-day trial in March 2020, the Court entered a judgment granting the father sole legal custody and the parties shared physical custody of the children but with the children residing primarily with the father. The mother appealed.

In upholding the lower court’s judgment, the Court found no abuse of discretion in the lower court’s consideration of the mother’s conduct toward the father post-divorce, which conduct included:

  • her failure to “put the children’s interests in maintaining a positive relationship with both parents above her own interests;”
  • her relocation of the children from Massachusetts to Texas to “escape the ‘shadow’ of father;”
  • her repeated involvement of the children in her angry disputes with the father;
  • her “manipulating the children’s view of the father, painting him as uncaring, disinterested, and a ‘bad dad;’ and
  • her intentional interference with the children’s relationship with the father “as a means of punishing father.”

The Kalish ruling reminds us that custody judgments remain modifiable upon a material change of circumstances with the bests interests of the child(ren) controlling.


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