“As I noted earlier, the motion judge appeared to accept that on an interim motion to vary a final parenting order, the stringent legal test in F.K. is apt, but cautioned that read in isolation, the F.K. decision might result in a judge placing too much emphasis on maintaining the status quo. This, in turn, could skew the legal analysis, which remains the best interests of the child. He later accepted that before making such an order, he was “obliged to demonstrate why the change from the status quo is compelling.” But upon reviewing his analysis, which I have outlined, it is plain that he rejected the meaning given to the concept of compelling circumstances in the caselaw, including his own decision in Hartman, conflated his determination of the best interests of the child with a finding of compelling circumstances, and effectively threw the caution required on an interim motion to the wind.
In this regard, it is telling that the motion judge reached his conclusion about the best interests of the child first, and then reasoned backwards, simply labelling as compelling the two principal considerations that informed his determination that a change was in the best interests of the child. Whether or not these considerations would provide justification for a change on a final and full hearing, it is impossible to imagine that a contradictory statement of the child’s preference together with the desirability to reduce the number of transitions between parents are compelling reasons to make a temporary change.
It is also telling that although the motion judge properly took into account the stress that O. was under in concluding that there were compelling circumstances that justified a variation of the final order, he did not explain how the change in parenting schedule would in any way reduce that stress. In fact, there is nothing in the record that could explain it.
In my view, the reasons of the motion judge underscore the rationale for limiting relief such as this on interim motions to exceptional or urgent circumstances. As I have already noted, in Hartman, the motion judge adopted the following statement of the law, which bears repeating:
Unless the courts insist that they will not disturb the existing arrangements for children on interim motions except in those cases where it is clear that the children are being exposed to danger or there is some other compelling reason, the courts will continue to be confronted with litigants demanding that the court embark upon the impossible task of attempting to assess the relative merits of parties who have filed numerous affidavits contradicting the affidavits of the other.”