Law Section from GAL – Report filed 01/05/07 (REMOVAL)
By David Goldman
In the Discussion and Conclusion sections below, I have taken the facts derived from my investigation and have applied them to my understanding of the law relative to removal. M.G.L. c. 208 §30, the operative statute1, entitled “Minor children; removal from commonwealth; prohibition,” states in pertinent part:
A minor child of divorced parents who is a native of or has resided five years within the commonwealth, and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders…
In Hale v. Hale, 12 Mass. App. Ct. 812, 429 N.E. 2d 340 (1981), the Court of Appeals recognized that after a divorce the children belong to a different “family unit” than they did when the parents lived together. “The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually, and to the way they relate to each other and function together is obviously in the best interest of the children.” At 818, quoting D’Onofrio v. D’Onofrio, 144 N.J. Super. 200 (1976) at 204-206.
The key statutory phrase, “upon cause shown,” means that removal must be in the best interest of the child. In Yannas v. Frondistou-Yannas, 395 Mass. 704, 711, 481 N.E. 2d 1153 (1985), the Supreme Judicial Court set forth the procedure for determining the “best interest” of a child in cases involving removal. In adopting the “real advantage” standard, the S.J.C. adopted the New Jersey case law (see Cooper v. Cooper, 99 N.J. 42 (1984) at 53) and stated, “Although the best interests of the children always remain the paramount concern, ‘(b)ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child’s best interests requires that the interests of the custodial parent be taken into account.'” Yannas, at 710.
In Yannas, the Court stated:
An evaluation of the best interests of the child requires attention to whether the quality of the child’s life may be improved by the change (including any improvement flowing from the improvement in the quality of the custodial parent’s life), the possible adverse effect of the elimination or curtailing of the child’s association with the non-custodial parent, and the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child.
The interests of the custodial parent in moving must always be assessed. The relative advantages to the custodial parent from the move, the soundness of the reason for moving, and the presence or absence of a motive that deprived the non-custodial parent of reasonable visitation are all likely to be relevant considerations. … Finally, the interests of the non-custodial parent must be considered. … The reasonableness of alternative visitation arrangements should be assessed. The fact that visitation by the non-custodial parent will be changed to his or her disadvantage cannot be controlling.
In this process, the first consideration is whether there is a good reason for the move, a “real advantage.” If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors become controlling in deciding the best interests of the child, but rather they must be considered collectively. Every person, parent and child has an interest to be considered.”
Yannas, at 711-712.
In Vertrees v. Vertrees, 24 Mass. App. Ct. 918 (1987), removal was allowed. The Appeals Court stated, at 919, “Certainly, the move to Illinois would be to the advantage of the wife, emotionally, socially and, perhaps, financially.”
The Court also noted the Trial Court’s consideration of the effect of such a move on the non-custodial parent:
Although removal would cause the children to leave their friends and their school and would weaken and diminish their contact with their father, the judge found that they would be moving to an area where there is a sound school system, and where they would have a closer relationship with their maternal and paternal grandparents and other relatives… He stated that “the detrimental effect [of being apart from their father] would be outbalanced by the strengthening of the custodial home in the community of [the wife’s] supportive relatives.” We note also that by virtue of the “blocks” of visitation awarded the husband, the children should be able to maintain an appropriate and ongoing relationship with their father.”
Rosenthal v. Maney, 51 Mass. App. Ct. 257, 745 N.E. 2d 350 (2001), represented the next significant exposition of the criteria for applying G.L. c. 208 §30, and strongly supported the application of the Yannas “real advantage” standard. In Rosenthal the Court, after referring to Yannas, Hale, and the use of the New Jersey precedent, again concluded, “In weighing the factors to be considered, ‘the first consideration was whether there was a good reason for the move, a “real advantage”‘…” (at 267). The Court then went on to reiterate that this is determined by “the soundness for the reason for moving and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation….” ibid.
In Rosenthal, the mother’s reasons for relocating, which related to her new husband’s residence and her primary employment out of state, were sufficient to establish a “good” reason for the move. The combination of those reasons with the fact that there was no finding, “nor was there evidence in the record to support a finding, that the mother was motivated to deprive the father of reasonable visitation…” ibid, meant that “the Probate Court’s conclusion that ‘the mother’s request to remove the minor child from the Commonwealth… is not founded on a good, sincere advantage’ was clearly erroneous,” ibid. The Appeals Court then went on, following the Yannas framework, to look at the interest of the child, the mother, and the father, none of which were such as to countervene the initial determination that the primary parent had indicated a “good and sincere reason,” i.e. a “real advantage” for the proposed move, without a motivation to deprive the father of reasonable visitation, resulting in the Court’s reversal of the Trial Court’s denial of removal.
More recently, there have been three cases decided by the Court of Appeals and one from the Supreme Judicial Court interpreting G.L. c. 208 §30. In my opinion, as I will discuss further below, those decisions do not change the decisional framework of Yannas/Rosenthal set out above, but rather, reinforce the primacy of the “real advantage” standard.
Chronologically, the first of those decisions is Dickenson v. Cogswell, decided June 5, 2006 by the Court of Appeals, 66 Mass. App. Ct. 442, 848 N.E. 2d 800. The Court, in its discussion, explicitly set out the Yannas language as its decisional framework, and ultimately, in what I would say is an extremely fact driven case, upheld the Probate Court’s denial of a request for permission to remove. That decision was based primarily on the Trial Court’s analysis that the Plaintiff, as primary parent, had not shown sufficiently substantial and credible reasons for requesting permission to remove the child to California.
In that case, the Court analyzed the parties’ historical custodial patterns and responsibilities in order to determine which of them could properly be deemed the primary parent. Although observing that “[i]n practice, the parents were co-parents, engaging in good communication and exercising a flexible approach to visitation,” the Court noted (at 443) that the child spent the greater portion of his time with the mother, i.e. that she was the primary parent. Ultimately, after analyzing the various competing interests, the Court determined that “the primary interest being served by the move is the [Plaintiff’s new] husband’s desire to live in California,” (at 452), and found this to be insufficient grounds under the circumstances of this family, specifically including those of the mother (the moving party), to grant her request for removal.
The next case, Mason v. Coleman, 447 Mass. 177, 850 N.E. 2d 513 (2006), decided by the Supreme Judicial Court on July 10, 2006, similarly upheld the Probate Court’s denial of a removal request, again basing its decision on the particular facts of that case with Yannas as the framework for analysis. This decision significantly changed the law regarding removal by determining, at 184-185, that, under what it labeled “true joint custody… shared legal custody and shared physical custody,” the Yannas real advantage standard does not necessarily apply and a “best interest of the child” analysis, without the Yannas real advantage “gloss,” is the appropriate framework for decision.
In defining the custodial terms, the Mason/Coleman Court referred to G.L. c. 208 §31 set out above, stating that shared legal custody carries “mutual responsibility and involvement by both parents in major decisions regarding their children’s welfare including matters of education, medical care and emotional, moral and religious development,” at 181-182, and that shared physical custody implies that “a child shall have periods of residing with and being under the supervision of each parent… assur(ing)… frequent and continued contact with both parents.” at 182, citing G.L. c. 208 §31. “This contrasts with sole physical custody, which generally reflects that the children reside with only one parent ‘subject to reasonable visitation by the other parent,'” ibid.
“Where physical custody is shared, the ‘best interest’ calculus pertaining to removal is appreciably different from those situations that involve sole physical custody… Where physical custody is shared, a judge’s willingness to evaluate one parent’s interest in relocating freely with the children is often diminished… a parent with true joint physical custody proposing a move should be required to prove that (relocation) is in the best interest of the child, and not merely desired by the moving parent,” at 184, quoting various case and commentary authority.
Factually, in Mason v. Coleman, the Trial Court “found that during the marriage each partner took the part of a ‘primary caretaker’ to the children,” at 178-179, and that “after the marriage, by stipulation the father and mother entered into a joint physical and legal custody agreement that was incorporated into their divorce decree,” at 179. The Court further noted that “[u]nder the agreement, the parties divided physical custody of the children approximately equally,” ibid.
The Supreme Judicial Court noted again that each case is unique in its facts and that a true joint physical custodial situation does not necessarily preclude removal but that, in this instance, the Trial Court’s analysis of this “true” joint custody removal case warranted affirmation.
On October 19, 2006, the Appeals Court, in Cartledge v. Evans, 67 Mass. App. Ct. 577, 855 N.E. 2d 429, reversed the Probate Court’s decision denying removal with a strong affirmation of the real advantage test in the face of the dissent rooted in deference to the Trial Court’s credibility determinations as to what could be described as the simple willfulness of the wife’s desire to remove the child from the Commonwealth “because she wants to,” at 582.
The majority viewed the matter as a “relatively straightforward application of real advantage principles,” at 586, in which the mother, in seeking the removal and having “had physical custody of the child,” at 579, demonstrated a sincere reason for the move and the absence of a motive to deprive the father of reasonable visitation,” at 580, and see footnote 2.
In that case a number of factors, including the mother’s loss of her job in Massachusetts and the availability of a new job in Connecticut made it economically more viable to move to Connecticut, in the area where her family lived. The Appeals Court stated, “These circumstance establish ‘a good reason’ for the move to Connecticut and the probate judge’s determination to the contrary is clearly erroneous,” ibid.
The Appeals Court noted the probate judge’s determination, the effect of the move on the father, the mother, and the child, as required by Yannas and Rosenthal, and stated, “The findings and rulings concerning removal concentrated almost exclusively on the father’s relationship with the child, and the particular desirability of frequent, short visits with the father. While these findings cannot be considered erroneous, disruption in visitation with the noncustodial parent cannot be controlling or no removal petition would ever be allowed. It is clear from the probate judge’s findings that undue-in effect, dispositive-weight was given to this criterion [emphasis added],” at 581.
Cartledge v. Evans is a classic example of two very different approaches to analyzing a request for removal pursuant to G.L. c. 208 §30 as required by Yannas and Rosenthal (and the two very different approaches to the concept of deference to Trial Court determinations shown in Mason v. Coleman and Dickenson v. Cogswell.) In any event, Cartledge is quite emphatic in its mandate for a strict application of the “real advantage” standard.
Finally on November 27, 2006, the Court of Appeals, in Wakefield v. Hegarty, supra, a 209C case, as here, did what I would characterize as a Yannas/Mason v. Coleman analysis, first determining that this was not a true joint custodial situation and then affirming removal based on an application of the “real advantage” standard.
In my view, it is apparent that the case law highlighted above, in a true non joint custodial case, favors the party requesting removal. The statutory term “for just cause shown” has been interpreted to mean that if the primary parent can demonstrate that the requested removal would constitute a “real advantage” for him or her, then removal would be allowed. The underlying assumptions, whether or not one agrees with the social science research , are (1) that the best interest of a child in a removal case is synonymous with the best interest of the primary parent, and (2) the primary parent’s desire to move from the Commonwealth, if “sincere,” qualifies as a “real advantage” upon which a request for removal may be granted, if such removal is not intended for the purpose of interfering with visitation (contact) by the non primary parent with his or her children. In reviewing the relevant case law, I have not been able to ascertain any other specific factor which, if shown, could serve to permit a court, when faced with real advantages of removal such as economics/marriage, to deny a request for removal.
Similarly, the Court’s analysis is made with an awareness that removal will inevitably change the relationship between the child and the parent who remains in the Commonwealth, and certainly will change the pattern of visitation. That implied disadvantage to the non-custodial parent cannot, in and of itself, be sufficient to prevent removal if the request for removal is sincerely motivated by something other than a desire to interfere with the non-custodial parent’s visitation. As noted above in Cartledge v. Evans, “… disruption in visitation with the noncustodial parent cannot be controlling or no removal petition would ever be allowed,” at 581. Whether or not the party requesting removal is motivated by such a negative goal can be determined by review of any number of historical factors and prospectively by the nature and extent of visitation he or she proposes for the non-custodial parent.
ADDENDUM TO LAW SECTION
On January 2, 2006, after the drafting of the above Law section, I became aware of the December 26, 2006 issuance by the Appeals Court of the decision in Pizzino v. Miller, 67 Mass. App. Ct. 865, an action brought, as the instant matter, pursuant to G.L. c. 208 §30. The Pizzino decision contains a number of factual and legal elements which impact upon this case.
In Pizzino, the Appeals Court reversed and remanded the Trial Court’s denial of the Plaintiff/mother’s request for permission to remove the minor children to South Carolina to reside with her new husband. The removal complaint had been filed in May 2003, prior to the Plaintiff’s August 2004 remarriage. The Guardian ad litem’s report was also filed prior to the remarriage, and focused on the Plaintiff’s wish at that time to move to South Carolina to be with her fiancé.
Discussing the recent matters of Dickenson v. Cogswell, Cartledge v. Evans, Wakefield v. Hegarty, and Mason v. Coleman, the Appeals Court noted that “since 1985, we have applied the criteria of the Yannas decision.” In that regard, the Pizzino Trial Court had found that the new marriage was not, in effect, a Yannas “real advantage” factor. In addition, it found that the proposed move was inspired at least in part by the mother’s desire to separate the children from their father, a determination made specifically by the Guardian ad litem. (As discussed below, I have determined in the instant matter that there exists no such intention to interfere with ********’s relationship with her father, nor has Mr. ******** alleged such an intention.)
In reference to the rationale for the proposed move in Pizzino, the Plaintiff’s wish to have the “real advantage” of living with the man who was her fiancé when she filed the Complaint for Modification and is now her husband, the Appeals Court ruled:
Today we conclude that a sincere desire to be with the spouse is, per se, a good and sufficient reason that requires a finding that there is a real advantage to the custodial parent in moving. It is not our function as judges to conduct reviews of the wisdom of decisions of competent adults to marry. Once the fact of the remarriage is accepted, it follows that the desire of a spouse to be with his or her marital partner is a natural and appropriate response that the law is required to acknowledge. A finding that there is no “real advantage” to the spouse in such a move is illogical and impermissible….
It follows, therefore, that on remand the judge must accept the mother’s remarriage and her accompanying desire to be with her husband as sound reasons for a contemplated removal unless he were to find that her wish to move is motivated principally by a desire to frustrate the father’s visitation rights.
In all such cases, the rule is “assuming the application of appropriate legal standards, the cases plainly turn on fact finding.” See Yannas, 395 Mass. at 712, 481 N.E. 2d 1153. The facts in the instant matter are set out below.
1. As stated in Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 857 N.E. 2d 32 (2006), “Application of the ‘real advantage’ test. Initially, we note that, although the parties were never married, the child is entitled to the same rights and protections of the law as other children. G.L. c. 209C §1,” at 35-36.
2. See Campis v. Biron, 64 Mass. App. Ct. 1102 (2005) (unpublished per Rule 1:28). “The father argues, on the basis of ‘recent research’ (but without legal authority) that we should not be applying the ‘real advantage’ standard as explicated in Yannas in this case. … Although we recognize the voluminous amount of research available on custody and removal matters, as well as the fact that views about determining a child’s best interests may evolve and change, the father has failed to persuade us that we should depart from the well-established law of this Commonwealth, and we decline to do so. See also, to the same effect, Cartledge v. Evans, at 580, footnote 1.
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