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NISSENBAUM’S STANDARD SET OF
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Modifications of Judgment
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3.0 Modification Of Custody
A judgment modifying custody must be based on findings grounded in the evidence that, since the date of the prior custody order, there has been a change in circumstances "of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]." Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974).
"The court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children". The custody claim must be considered in light of established principles governing custody determinations. See, e.g., Hersey v. Hersey, 271 Mass. 545, 554 (1930); Grandell v. Short, 317 Mass. 605, 607 (1945); Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-112 (1985); Haas v. Puchalski, 9 Mass. App. Ct. 555, 557 (1980); Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).
A parent who works outside the home, even one with a "hectic" schedule, may still be the appropriate primary caretaker and that, standing alone, such employment would not warrant a custody modification. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
Changes occurring in a child’s living arrangements because of a temporary order that was not supported by findings of substantial and material change in circumstances, let alone the requisite findings of "injury, harm or damage," G. L. c. 208, § 28A, cannot form the basis upon which a final judgment modifying custody is granted. Were we to decide otherwise, tactical delays or overcrowded court dockets could come to dictate the result in every custody modification proceeding, and render meaningless any eventual hearing on the merits. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).
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