Family Law – Custody & Visitation

Father Retains Custody Rights in Contentious Modification Trial

David Burgess, Attorney


A couple in western Massachusetts with three children had been divorced for several years. The custody agreement as part of the divorce was 50/50 with a parenting schedule of two days with one parent, two days with the other and alternating weekends. The parents live in the same town. Before the divorce the father managed most of the children’s needs, including getting them to school and doctor’s appointments and taking care of them during the daytime, while the mother pursued her career as a doctor.

The mother sought to modify the custody agreement, alleging that the father was scaring the children and that the midweek transition of the children from the mother to the father was too difficult for the children.

The relationship between the father and mother was contentious and it appeared unlikely that the case would be settled outside of court. The father’s attorney referred him to David Burgess to take over and represent him in the modification litigation and trial.


The goal was to avoid trial and preserve the parenting schedule and also to compel the parties’ completion of a high-conflict parenting program for the benefit of their three children.

Repeatedly during the case, the judge encouraged the parties to improve their behavior and communications toward each other for the benefit of their children.

It became evident that avoiding trial was unlikely. The mother reported the father to Massachusetts Department of Children and Families (DCF) alleging he had physically and emotionally abused the children. The children made similar reports themselves to mandated reporters, resulting in further DCF investigation. It became clear to DCF during these investigations that the children had been coached and encouraged by the mother to make such reports. The mother also claimed that the father’s custody should be modified because, she claimed, he had abused her during the marriage. This allegation was admissible in evidence even though the conduct alleged predated the divorce judgment the mother sought to modify.

As part of thoroughly preparing for the trial, Burgess reviewed all available information, including many hundreds of pages of DCF records. A pattern emerged of the mother seeking to exploit multiple processes to accomplish her objective of obtaining a modification of the custody order. This included DCF, the police and the court.

Shortly before the trial, after the denial of an emergency motion of the mother to suspend the father’s custody, the mother replaced her attorney. That attorney represented her through the conclusion of the trial.

The evidence at trial included testimony of an inexperienced therapist for one of the children who had inappropriately influenced the behavior of that child toward the father. In addition, the mother escalated matters by demanding that the police pursue criminal charges against the father after a situation where no arrest had been made. The criminal case was dismissed.


The case was tried over three days, after which the judge ruled that there was no material change to support modifying the custody schedule. The judge ordered the parents to complete a high-conflict parenting program.

He also ordered the parents to find a new therapist for the child whose previous therapist had inappropriately undermined the father.

At the conclusion of the trial, the judge commended both trial attorneys for their professionalism in a difficult case.