In May of 2016, the Massachusetts Appeals Court reversed a Probate and Family Court decision dismissing a mother’s petition to remove her child’s paternal grandmother as the child’s guardian.  In reversing the decision, the Appeals Court reminded the Probate and Family Court, albeit in an unpublished decision, that the burden of proof to demonstrate a parent’s unfitness is the high bar of “clear and convincing evidence.”

Reviewing the evidence at trial, the Appeals Court made the following observations:

  1. a Guardian ad Litem (GAL) and a social worker opined at trial that the mother was both loving and capable;
  2. the mother’s previously considering relocating to Maine several years prior to the trial shed little light on her current parental fitness;
  3. with respect to the mother’s allegedly leaving the child in the car while she went shopping, the Appeals Court noted that the “standard of parental fitness is not perfection . . . lax supervision confined to isolated incidents and not resulting in serious harm to the children, though troubling, fails to demonstrate parental inability to provide minimally acceptable care. . . .”
  4. with respect to the mother’s allegedly angry social media posts, the Appeals Court remarked that “[a] few unseemly posts . . . falls far short of showing that terminating the grandmother’s guardianship would place [the child] at serious risk of peril . . .” and
  5. the mother’s proposal that the grandmother only get one overnight visit per month did not demonstrate unfitness because, “[w]hile desirable, it is not necessarily realistic to expect parties battling for custody to maintain reasonable perspective in the heat of that battle.”

In light of those observations, the Appeals Court concluded that while “[t]he mother may have displayed some signs of immaturity and poor judgment . . . [w]ithout more, the record here does not reflect the ‘grievous shortcomings’ that must underlie a finding of parental unfitness, which must be shown by clear and convincing evidence. . . .”

Although the decision was unpublished, it is still out there, and hopefully sends a strong signal to the Probate and Family Court that a mother need not be the perfect parent in order for her to retain her parental rights.

Attorney Kevin D. Quinlan

Uxbridge, Massachusetts

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