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Stone v. Stone: When Probate and Family Court Judges Punish Dishonest or Overly-Litigious Parents by Changing Custody

Massachusetts divorce lawyer Nicole K. Levy examines a Massachusetts Appeals Court decision demonstrating that probate and family court judges sometimes react to dishonest or overly-litigious parents by ordering a change in child custody.

Parties with experience in the Massachusetts Probate and Family Courts often have stories about the contentious nature of custody cases. Many can relate to problems with one party lying under oath, refusal to co-parent, concealing assets or income, being threatened and harassed with frivolous complaints for contempt or restraining orders, and unfavorable orders from the court. While parties in every form of litigation have their frustrations, the issues that arise in probate court tend to include a deeper emotional element. The methods used in other courts to manage parties who “abuse” the court system do not always translate to the family court, where judges sometimes rely on more extreme measures to reign in parents they perceive as dishonest or overly-litigious.

We have written before about how probate and family court judges punish dishonesty in custody cases. As discussed in our recent blog, parents whose dishonesty directly impacts custody proceedings often receive orders changing custody or parenting timei n the other party’s favor. However, such cases always raise questions about whether a probate court judge is punishing a parent – by changing physical custody – on procedural or tactical. In such cases, the question becomes: should a court punish a parent for excessive legal filings or misbehaving in court hearings by altering physical custody? And if so, to what degree must the court consider how such a change in custody would affect the child?

One case that seems to raise these concerns is Stone v. Stone (2015). After a divorce in the Worcester Probate and Family Court in an unspecified year, Mother was granted physical custody of the parties’ child. In 2012, the Judgment was modified to granting the parties shared physical custody for unexplained reasons. In 2013, Mother filed a complaint for contempt and a complaint for modification, both of which were dismissed by the probate and family court judge.

Notably, at the contempt hearing, the judge “instructed the mother in open court not to call the police on the father again in similar circumstances.” While the decision does not indicate the circumstances, it is clear from this statement that the judge was displeased with Mother’s actions. Moreover, the probate court’s judgment of dismissal for Mother’s modification included the following warning to the Mother:

If there is a finding by this Court in the future that the mother cannot act in the child’s best interest by lying under oath to the Court and harassing the father, sole physical custody shall revert to the father.

(Before continuing on with the case, it is important to stop here and assess what had occurred. The published facts of this case are sparse at best, and without knowing exactly what actions Mother was taking, it is difficult to find fault in her or Father. Nonetheless, the judge’s statement here indicates that the court was willing to punish Mother’s bad behavior by making a change to the custody arrangement. This is not an uncommon scenario in certain circumstances, but the crucial point is this: the court must still consider what is in the child’s best interest before ordering a change in custody. What is clear from the record is that Mother obtained a restraining order against Father in District Court in 2011, which was extended four times as of 2014. Father was charged with four violations of the restraining order, two of which he pled guilty to.)

Father continued the litigation by filing a complaint for modification, requesting sole physical custody of the child. Father cited Mother’s use of the court system as means to harass him, as well as not acting in the best interest of the child. According to the Appeals Court, the judge found:

[T]hat the mother is unwilling to work with the father to further the child’s well-being and is therefore unwilling or unable to work with the father to promote the child’s best interests. While the judge acknowledged that the father has been in “technical[]” violation of the mother’s restraining order, the judge specifically found that “Mother has used the restraining order process to make any co-parenting between she and Father impossible.

The judge concluded by finding that “[j]oint custody is not appropriate under the circumstances of this case. Mother has demonstrated again an inability to act in the child’s best interests in situations where she has an opportunity to take actions which are adverse to Father. . . . Therefore, the Court finds that it is in the child’s best interests that Father have sole physical custody of the minor child.”

Mother appealed the probate court decision. Discussing the merits of the probate court judgment, the Appeals Court stated only, “We agree with the judge’s findings and conclusions.” Accordingly, the change in sole physical custody to Father was affirmed without comment on how such a change would impact the child.

Again, it is important to emphasize how many facts are unknown before jumping to conclusions about the either the probate judgment, which admittedly seems drastic on its face, or the Appeals Court decision. For example, although Mother was represented by counsel in the appeal, the Appeals Court expressed displeasure about the incomplete record it had to work with:

The mother’s appendix omits much of the record relevant for our purposes here. For example, there is no docket, no original judgment, and no complaint for the modification that we consider here. The state of the mother’s appendix may well have violated Mass.R.A.P. 18(a), as amended, 425 Mass. 1602 (1997), but we will nonetheless address the merits of the appeal.

In part due to this thin record, it is hard to fully understand what led to the change in custody to Father. Certainly, the 2012 modification granting shared physical custody to the parties could have included important history and facts about the parties and child. And it is clear that the judge in the 2014 proceedings felt that Mother lacked credibility about being in fear of Father, despite the existence of the District Court restraining order.

With these limitations in mind, it is still far to note that the Appeals Court decision does not appear to grapple with two troubling questions:

  1. What is the impact on the child of a change in sole physical custody to Father?
  2. How does the Court reconcile the four restraining order extensions in the District Court – and Father’s two guilty pleas for violations – with the change in custody?

We can draw from the record that the probate court judge felt that (a.) Mother called the police too frequently or inappropriately, (b.) misused the District Court restraining order in the custody context, and (c.) filed unnecessary complaints for modification and contempt. We can also discern the Appeals Court’s frustration with an incomplete trial record that seemed to leave holes in the facts. What we don’t know is whether the change in custody was the probate court judge’s way of punishing Mother for being overly litigious, filing frivolous pleadings, or overstating her fear of Father.

Lying under oath and abusing the 209A process – or any court process – to manipulate circumstances is inexcusable; but the remedy here seem like it might have been designed to punish Mother for misbehavior. Clearly, the judge had a difficult choice in ordering a change in custody, as well as an unenviable position of balancing what was best for the child with litigation that was running wild. Right or wrong, it is clear that Stone v. Stone stands as another warning parents involved in custody disputes: if the judge perceives your actions as dishonest, overly-litigious or manipulative, then the response may involve a change in custody, regardless of how such a change might impact your child’s well-being.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

Schedule a consultation with Nicole today at (781) 253-2049 or send her an email

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