In the Matter of Carson

Keville, J.

This is an appeal from a probate judge’s "dismissal” of a petition brought under the provisions of G. L. c. 210, § 3 (a)(ii) and (c), as appearing in St. 1972, c. 800, § 2, by Pamela Ansaldi (Pamela) and her third husband Richard J. Ansaldi (Ansaldi), for the adoption and change of name of Pamela’s three-year-old son, Mark, now age eight, by her first husband Raymond A. Yorke (Yorke), who intervened in opposition to the allowance of the petition. The petition alleged that Frederick W. Carson, Pamela’s second husband, was the child’s father.

This is Pamela’s second appeal to this court from judgments entered against her in a Probate Court in furtherance of her quest to exclude Yorke permanently from any form of association with their son Mark. Pamela’s first appeal which she lost, was from an adjudication of contempt for her refusal to permit Yorke to exercise visitation rights with Mark. Those rights had been granted to Yorke in a divorce decree entered on a libel brought by Yorke in the Probate Court for the county of Norfolk. See Yorke v. Yorke, 2 Mass. App. Ct. 234 (1974). The same decree awarded custody of the child to Pamela.

Mark was conceived at a time when Pamela was consorting with both Yorke and Carson. She married Yorke on July 18, 1969, in Massachusetts. She left him in September. Mark was born on March 5,1970, in Nevada. On his birth certificate, Mark was named Mark Ripley Carson. In the meanwhile Yorke, as stated, had brought a libel for divorce against Pamela! On December 12, 1969, Pamela had been granted an ex parte divorce from Yorke in Nevada and on January 10,1970, had married Carson in that State. They were divorced in December, 1970.

Pamela returned in Massachusetts in May, 1970, and in July Yorke’s motion to amend his libel was allowed to include Mark as a child born of Yorke’s marriage to Pamela. Yorke was granted a decree of divorce nisi from Pamela which became final in January, 1971. Pamela did not appear in those proceedings.

In September, 1970, Yorke brought a petition for contempt against Pamela for her refusal to allow him to visit the child. The petition was dismissed by agreement and he continued to exercise his visitation rights until December, 1971, when Pamela again refused to permit him to see the child. In October, 1972, Pamela married Ansaldi. Yorke brought a second petition for contempt against Pamela; and in May, 1974, this court sustained a Probate Court decree on that petition which adjudged her to be in contempt for refusing to allow Yorke to visit the child. Yorke v. Yorke, supra. The present petition for adoption had been filed on October 21, 1973, but no notice was given to Yorke until after the decree on the contempt petition had been affirmed on appeal.

The Ansaldis’ appeal from the judgment dismissing their petition for adoption comes here with a transcript of the evidence, a report of the Department of Public Welfare recommending the adoption,¹ and the judge’s findings of fact. In the circumstances we give due weight to the findings of the judge, which will not be reversed unless clearly erroneous; but we may find facts in addition to those found by him. Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 255 (1977). From our review of the record it is our conclusion that there was no error in the judge’s determination that the best interests of the child would not be served by allowing the petition.

In determining the best interests of a child on a petition of this kind, much of necessity must be left to the experience, judgment and discretion of the trial judge. Petition of the New England Home For Little Wanderers, 367 Mass. 631 646 (1975). Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 376 Mass. 252, 260 (1978). See Donnelly v. Donnelly, 4 Mass. App. Ct. 162, 164 (1976). Parental consent to an adoption under § 3 is not to be dispensed with for other than substantial reasons. Little Wanderers, supra at 645. The best interests standard under § 3 is a flexible one and the weight to be accorded the several considerations under it will vary with the circumstances. Little Wanderers, supra at 644.

The underlying issue here is whether Pamela (with Ansaldi) may, in the circumstances, successfully employ an adoption petition under § 3 to cut off Yorke’s right to visit with their child, granted to him a divorce decree and reaffirmed by the allowance of the latter’s petition for contempt. Yorke v. Yorke, supra.

Apart from their proclivity for frequent marriage and divorce (each in short order has been married thrice) and Pamela’s stubborn insistence on excluding Yorke from the life of their child, neither Pamela (and Ansaldi) nor Yorke can fairly be called an unfit parent. Each has now entered upon a marriage which appears to be satisfactory; each has demonstrated, as has Ansaldi, affection and concern for the child; and each is in a position to provide for the child’s various needs including a comfortable home environment.

The record makes clear that from the outset Yorke has consistently and persistently demonstrated his readiness to assume parental responsibility for the child both through the pursuit of his visitation rights and his efforts to contribute to the support of the child until frustrated by Pamela. Moreover, the fact that he now lives in Florida with his third wife (his parents have a home in Massachusetts where he could visit with the child) has not discouraged his purpose to keep alive his right to associate with Mark despite Pamela’s continuing opposition.

This is not the case of a neglectful parent whose interest in and support of his child have been casual or sporadic. Contrast Adoption of a Minor (No. 1), 367 Mass. 907 (1975), the sole case relied upon by the petitioners. Nor is this a situation in which the child’s best interests require severance of the parent-child relationship because of a parent’s shortcomings or handicaps. See Little Wanderers, supra; Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, supra at 265. The petitioners do not dispute the fact that Yorke has met the criteria for judicial consideration required under § 3(c): "the ability, capacity, fitness and readiness of the child’s parents ... to assume parental responsibility.” Nor have the petitioners sustained their burden of showing that the development of a relationship between Yorke and the child would not be in Mark’s best interests.

The only argument of any significance advanced by the Ansaldis is that Yorke and the child are strangers to each other and that, therefore, the process of becoming reacquainted would be a traumatic experience for the child. While it is true that a child is not to be penalized by the failure of one of its parents to adhere to the terms of court decrees (see Masters v. Craddock, 4 Mass. App. Ct. 426, 428 [1976]), in the absence of any evidence of lack of "parental responsibility” on the part of Yorke his right to associate with the child should not be severed where the absence of a parent-child relationship between him and Mark has been due solely to Pamela’s intransigent conduct. See Dunne v. Amerigian, 354 Mass. 368, 372 (1968).

The prospect facing Mark is commonplace among young children of remarried divorced parents — the adjustment to the presence in the life of the child of more than one father or mother figure, or both, as the case may be. That prospect, standing alone, does not warrant the exclusion from a child’s life of an association with one of its natural parents which may prove to be beneficial. Depending upon the attitude of the parents, the adjustment need not be traumatic. In this case, the necessity of such an adjustment does not in our view outweigh the advantage to Mark, in the long run, of knowing and receiving a degree of care and protection from his own father.

Finally, there was no abuse of discretion in the denial of a motion brought twenty-seven days after the entry of judgment by an attorney under Mass.R.Dom.Rel.P. 24 (1975) to intervene on behalf of the child.² See United States v. Carroll County Bd. of Educ., 427 F.2d 141 (5th Cir. 1970); McClain v. Wagner Elec. Corp., 550 F.2d 1115, 1120 (8th Cir. 1977). See generally 7A Wright & Miller, Federal Practice and Procedure 579-580 (1972). The basis for the motion was a claim that the child’s interests had not been adequately represented in the adoption proceedings. In addition to the fact that a guardian ad litem had been appointed for the child, the adversary positions taken by the existing parties provided assurance that the child’s interests were adequately represented. See In re Adoption of a Minor, 120 F.2d 720, 721 (D.C. Cir. 1941). We note also that the judge had before him a report from the Department of Public Welfare under the provisions of G. L. c. 210, § 5A, the obvious purpose of which is to protect the best interests of the child. In the circumstances we need not decide whether the motion was rightly brought under Rule 24. See Mass.R.Civ.P. 1 (365 Mass. 730 [1974]) and Mass.R.Dom.Rel.P. 1 (1975).

Judgment affirmed.

1 The social worker, who was the author of the report and a witness at the hearing on the petition, conceded in her testimony that the report did not reflect her opinion that Yorke was a fit person to have the society of the child and that in her investigation she had given no consideration to Yorke’s ability, capacity, fitness and readiness to assume parential responsibility for the child in approving the adoption. See G. L. c. 210, § 3(c).

2 At oral argument it developed that the proposed intervention had been prompted by Ansaldi.