In Ryan v. Lovendale, 105 Mass. App. Ct. 564 (2025), the Appeals Court held that indigent parents must be informed of, and are entitled to, appointed counsel when a court considers awarding custody of their child to a non-parent under G.L. c. 209C, section 10(d), without parental consent. The holding rests on statutory construction of the "interests of justice" language in G.L. c. 209C, section 7, not a new constitutional rule, and the court avoided reaching the constitutional question. This is a narrow right: it applies only to this specific, uncommon proceeding, only a handful of which occur each year, not to parent-versus-parent custody disputes or voluntary custody transfers.
Losing custody to a non-parent, whether a grandparent, another relative, or a family friend, without the parent's consent is one of the most consequential things that can happen to a parent in family court. Until this 2025 decision, indigent parents facing that specific, narrow scenario had no guaranteed right to appointed counsel or even to be told that such a right might apply. The judge who first heard the case in Ryan said exactly that, noting that the right to counsel had not been extended to these determinations.
This article explains what the Appeals Court decided, the three situations the statute separates, why the mother in the case still did not get her judgment undone, and the route back to custody that the decision describes.
What Did the Appeals Court Decide?
The Appeals Court's May 28, 2025 decision in Ryan v. Lovendale held that when a court considers awarding custody to a non-parent under G.L. c. 209C, section 10(d), without the parent's consent, an indigent parent is entitled to appointed counsel, and the court must inform the parent of that right. The court reached this result through statutory construction, reading the "interests of justice" language in G.L. c. 209C, section 7, to require appointed counsel in this circumstance, and it expressly avoided deciding whether the U.S. or Massachusetts Constitution independently requires the same result.
Section 7 itself is short. It provides that in actions in which custody or visitation are contested, the court may appoint counsel to represent either party whenever the interests of justice require. The word in the statute is "may". The Appeals Court read it, in this one setting, as a requirement, applying the principle that where a statute can be read more than one way, a court should choose the reading that avoids a constitutional problem.
The constitutional problem it was steering around is a real one. The Supreme Judicial Court held in Department of Public Welfare v. J.K.B., 379 Mass. 1 (1979), that an indigent parent has a constitutional right to appointed counsel in a contested proceeding to terminate parental rights, and in Guardianship of V.V., 470 Mass. 590 (2015), it extended that right to a parent whose child is the subject of a guardianship proceeding brought by a private party. The Appeals Court described a parentage case in which a judge is considering custody to a non-parent as substantially similar to a guardianship case.
The duty to tell the parent is part of the holding. The court reasoned that a right to counsel normally involves being informed of that right, so parents must be told that they are entitled to appointed counsel if they are indigent and the court is considering custody to a non-parent without their consent. A right that nobody mentions is of little use to a parent representing themselves.
Which Custody Cases Does This Decision Cover?
The case arose under chapter 209C, the Massachusetts parentage statute, which governs children whose parents are not married to each other. The Appeals Court sorted custody in those cases into three situations, and the right to counsel attaches only to the third.
| Situation | What the statute provides | Right to appointed counsel under Ryan? |
|---|---|---|
| Custody between the two parents | Section 10(a): custody to either parent or to both jointly, in the best interests of the child | No. The court noted this is not the practice, and the mother did not claim it |
| Non-parent custody with consent | Section 10(d): custody to a non-parent if it is in the child's best interests and both parents, or the surviving parent, file written consent | No. The court compared it to a voluntary adoption, where counsel is not appointed |
| Non-parent custody without consent | Section 10(d): custody to a non-parent if it is in the child's best interests and both parents are unfit, or one is unfit and the other files written consent | Yes, for an indigent parent, except in the most exceptional circumstances |
How Narrow Is This Right?
Genuinely narrow. It applies specifically to proceedings where a court is considering awarding custody to a non-parent without the parent's consent under section 10(d), a scenario the court itself described, citing the Committee for Public Counsel Services, as arising in only a handful of proceedings each year. It does not extend to ordinary parent-versus-parent custody or visitation disputes, and it does not apply where the parent has voluntarily agreed to transfer custody to the non-parent.
Two further limits are worth knowing. The right belongs only to a parent who is indigent and meets the standards for appointed counsel. And the court's phrase "except in the most exceptional circumstances" has content: it pointed to doctrines under which a person may forfeit or lose appointed counsel, including acts of violence toward counsel, dilatory or abusive conduct after a warning, and repeatedly failing to communicate with counsel.
What If the Parents Are Married or Divorcing?
Ryan is a chapter 209C decision, so its holding is framed around parents who are not married to each other. A grandparent or other relative seeking custody of a child whose parents are married or divorcing usually arrives by a different road, and the decision itself points to two of them.
- A guardianship petition. Where a non-parent seeks guardianship of a minor, the right to appointed counsel for an indigent parent has existed since Guardianship of V.V. in 2015.
- A divorce action. The court noted that appointing counsel for a question of which parent gets custody is not the practice in divorce proceedings, and cited Balboni v. Balboni, 39 Mass. App. Ct. 210 (1995), for the narrower point that counsel is to be appointed in a divorce action if custody to the government is imminent.
The decision also explained why the marital status of the parents should not matter much in principle: chapter 209C declares that children born to parents who are not married to each other are entitled to the same rights and protections of the law as all other children. The practical point is simpler. If a non-parent is asking a court for custody of your child, find out which statute the case is proceeding under, because the answer shapes the rights you have.
Why Did the Mother in Ryan Still Lose?
The Appeals Court announced the right to counsel and still affirmed the custody judgment against the mother. The reasons are the most practically useful part of the decision for any parent in a similar position.
- She agreed to a temporary arrangement. With no lawyer on any side, the parents agreed that the paternal grandmother would have temporary physical custody until a trial decided which parent should have permanent custody. The court treated an agreed, uncontested temporary order as not requiring appointed counsel.
- She missed the next court date. When the mother did not appear at the following hearing, a judge entered a judgment giving the grandmother permanent physical custody, apparently with the father's agreement. A parent who is not in court cannot be appointed counsel at that hearing.
- She waited more than a year to challenge it. The mother said she had missed the hearing because of a medical emergency, which the court called a strong ground for relief. But she filed her motion for relief from judgment more than a year later, and the judge was within her discretion to find that too late.
The court was candid that the record was thin, noting that it had no transcripts of either hearing and was not blind to the possibility that there was more to the story. The lesson for parents is not about this mother. It is that a "temporary" agreement made without advice can be the first step toward a permanent order, that every hearing matters, and that a problem with a judgment has to be raised promptly.
Can a Parent Get Custody Back From a Non-Parent?
Possibly, and the decision describes how. The Appeals Court noted that even a parent who has been found unfit may obtain a trial on a petition to regain physical custody by producing some credible evidence of changed circumstances since the original custody decision, citing Guardianship of Kelvin, 94 Mass. App. Ct. 448 (2018), and the modification provision of chapter 209C, section 20.
Once a parent meets that initial burden, the burden shifts in an important way. The custodian then bears the ultimate burden of proving, by clear and convincing evidence, that the parent remains unfit and that continuing the custody order serves the child's best interests.
The right to counsel follows the parent into that petition. The court stated that if the mother filed a petition to remove the children from the grandmother's custody, she would be entitled to appointed counsel if she remained indigent, and must be informed of that entitlement. It added that the father would presumably be entitled to appointed counsel too.
Does the Child Get a Lawyer Too?
That question is open. The Committee for Public Counsel Services argued that a provision of the guardianship statute, G.L. c. 190B, section 5-106(a), would require counsel for the children as well in this situation. The Appeals Court called it a strong argument, but the question was not before it and it did not decide it. It recommended careful consideration of the question to any judge considering placing a child with a non-parent without the parents' consent in a parentage case.
Did the Parentage Act Change Any of This?
No. Chapter 209C was extensively amended by the Massachusetts Parentage Act, effective January 1, 2025, mainly to replace language that assumed every child has one male and one female parent. The Appeals Court addressed this directly and stated that nothing in its opinion is affected by those amendments. Section 10(d), the provision the right attaches to, reads today as the court quoted it.
How Does a Parent Request Appointed Counsel?
Because the court itself must inform an indigent parent of the right under this decision, a parent facing a section 10(d) non-consensual custody petition should expect the court to raise the issue, but should also affirmatively raise it with the court as early as possible if it has not already come up.
In practice that means saying so at the first hearing where a non-parent's request for custody is on the table, before agreeing to any arrangement, and asking again if the case later turns from a temporary order toward a permanent one. A parent who can afford a lawyer does not need appointed counsel, but should still have one at the moment a non-parent's custody request becomes contested.
Contact Brigantine Law if a grandparent, relative, or other non-parent has asked a court for custody of your child, if you are considering an agreement that would place your child with someone else, or if you want to understand what it would take to regain custody.
The holding and the passages described above were read in the published opinion in Ryan v. Lovendale, 105 Mass. App. Ct. 564 (2025), and G.L. c. 209C, sections 7 and 10, were verified against the Massachusetts General Laws in October 2026.