Smith v. McDonald — New SJC case about moving out-of-state with child

The Massachusetts SJC again weighed in on the removal issue  in Smith v. McDonald, SJC -10670, December 14, 2010.  In this case, a unmarried mother moved to Batavia, New York, 400 miles away from the father, with their 6 month old child.  Since the child’s birth, the father had pursued a relationship with the child.  He visited him, and voluntarily providing child support.   The mother moved to be near her mother and step parent, and to provide a place where aless expensive cost of living would have made it easier to take of her son.

At the time of the mother’s move, the father had filed a paternity action to legalize his parental rights, but the mother didn’t know about the action.  The father was not on the birth certificate of the child.

The trial court judge ordered the mother to move back to Massachusetts (which she did), based on the Yannas case.  Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985).  By that time, the mother had found housing and a part-time job in Batavia. The mother complied with the order.

Yannas requires that if there is sole custody, the parenting moving with the child must prove that there is a “real advantage” in making the move.   The trial court found that the real advantage test was not met, and it was in the best interests of the child to come back to Massachusetts so that the child would continue to bond with the father. 

The SJC held that, because at the time of the mother’s move, the father’s custody and determination of paternity was not complete.  The mother at that time had sole legal custody, and therefore she had the right to move without permission of the father and the court, until and unless  modified by the court.   At the time of her move, the Yannas “real advantage” test did not apply.  If she had moved to New York after paternity had been adjudication and visitation ordered, then Yannas would have applied.   The SJC said that once she moved (without the paternity order having been being allowed), she could not be ordered to come back to Massachusetts. 

The SJC said there were three possibilities of orders the trial court could have legally made:  (2) give the mother sole custody, and have the child reside in New York; (2) give the father sole legal custody, and have the child reside in Massachusetts; and (3) award joint custody, and have the child part of the time in each parent’s residences.   The fourth option taken by the trial court (returning the mother to Massachusetts) , which “might have been ideal” for the child, according to the SJC, was not legal, and the trial judge exceeded her authority in order it.

Two New Massachusetts Case on Child Removal

In September 2010, the Massachusetts Appeals Court issued two new decisions relating to “removal” of children by a custodial parent out of state or to a different part of the state, Katzman v. Healy (No. 09-P-2341), and Altomare v. Altomare, (No. 09-P-585).

Katzman v. Healy

Katzman v. Healy (No. 09-P-2341) was an appeal by the former wife, Anna Katzman, who had sole physical custody of the two children, to move with the children out-of-state.  The former husband, Timothy Healy, had already remarried and had a child of the second marriage.  Katzman met a man who lived and worked in the New York metropolitan area, to whom she became engaged and married prior to the trial, and a baby was expected.  She appealed a probate court decision denial of her relocating custody of the children of the marriage to New York or Connecticut.

The lower court had changed the custody to joint, based on time spent with the children.  The appeals court disagreed with the analysis of time spent, as it only tabulated the children’s awake time with parents, and not the backup time of a custodial parent – i.e., when the children were sick or needed a parent’s assistance at unexpected times, which role was the mother’s.  The court found that the grounds of modification of parenting time were not in the findings of the lower court and reversed on this issue.

With respect to the removal issue, the Appeals court in Katzman v. Healy noted the Yannas test applies to cases where one party has physical custody.  Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985), and Mason v. Coleman, 447 Mass. 177 (2006) applies in cases of joint physical custody.

If there is joint custody of the children, under Mason,  it is presumed that the children are fully integrated into both households and consider that they have two homes.  Therefore,  the children’s relationships with both parents need to be protected, insofar as possible.  In joint custody cases,  “judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished . . . “.  Mason v. Coleman, 447 Mass. at 184-185.

The  Yannas test, applicable where one parent has primary custody, provides a two-part test.  First, there must be a good reason for the move, i.e., a “real advantage” to the custodial parent moving, such as a necessary job change that would greatly improve the custodial’s parent ability to support  the children.  That was satisfied in the Katzman case.  The former Wife wanted to move to be with her new husband  (the father of the new child), and was not motivated out of the intention to deprive the father of his relationship with his children.  The new husband could not feasibly move his employment to Massachusetts.

Secondly, according to Yannas, the move out of state must be in the best interests of the children.  In order to determine this, there must be a balancing of interests – the advantages and disadvantages of moving or not moving  not only to the children, to the parent who has sole physical custody.  This is a significant factor in the “best interests of the children” analysis, because the best interests of the children are so interwoven with the well-being of the custodial parent,  that the determination requires that the interests of the custodial parent be taken into account.  Yannas, supra, at 710.

The Appeals Court said if it is found that her new husband cannot relocate his employment to Massachusetts, fact finding needs to be done as to how the mother’s “unhappiness from raising her children (including the newborn child of the new marriage) in Massachusetts while living separated from her husband would affect the children.”  Katzman was remanded to the lower court for proper findings on the removal issue.

Altomare v. Altomare

Another child custody removal case decided by the Appeals Court in September 2010 was Altomare v. Altomare, No. 09-P-858 .  This case involved a former wife with whom the three children (ages 11-18) made their primary home  who asked for removal with the children from West Boylston to Scituate, a town in Massachusetts, 75 minutes away by car.

The Appeals Court applied the Yannas test.  Under the second prong, the benefit to the children flowing from any improvement in the quality of the custodial parent’s life, must be weighed against the possible adverse effect of elimination or reduction of the children’s contacts with the noncustodial parent, and how this will affect the emotional, physical, or developmental needs of the children.  Pizzino v. Miller, 67 Mass. App.Ct. 875, 870-871 (2006), quoting from Yannas, supra, at 711.

In Altomare, the Wife who was divorced after 20 years of marriage found it difficult to remain in the small town where she would often run into the woman with whom the husband had been having a romantic relationship that broke up the marriage and which was the Husband’s home town.  The Wife had a support network in Scituate that she felt could help restore her emotional health.  She wished a fresh start, and felt the mood change she expected to have would have a huge positive impact on the children.  The probate court denied her request to move.

The Appeals Court believed that the probate court did not adequately assess the second prong of Yannas, and remanded for a determination of the best interests of the children.  In particular, the judge was instructed to determine the extent to which the wife’s unhappiness in West Boylston affects her children and the practical effects of the move where she expected to have a better quality of life, therefore benefitting the children.

Massachusetts Supreme Judicial Court permits postnuptial agreements in Ansin v. Craven-Ansin

On July 16, 2010, the Massachusetts SJC ruled that postnuptial agreements were not per se unenforceable as against public policy.  In the much-awaited ruling in  Ansin v. Craven-Ansin, (SJC-10548 July 16, 2010), the unaminous court held that if the spouses later divorce,  the agreement must be carefully scrutized, and provided a list of factors that would indicate a particular postnuptial agreement would be enforced or not.     For link to case, http://www.sociallaw.com/slip.htm?cid=19996&sid=120

Among the standards are that there was opportunity to obtain separate legal counsel, there was no fraud or coercion in inducing the agreement, full disclosure is made, there is a knowing waiver of rights to a judicial equitable division of marital assets and other martial rights in the event of a divorce.

And most importantly, the Court held that a postnuptial agreement must be “fair and reasonable at the time of the execution and at the time of divorce”.  This means that the postnuptial agreement must be more like a separation agreement (one made at the time of divorce) than a prenuptial agreement (one made before the marriage).  An earlier case, DeMatteo v. DeMatteo, 436 Mass. 18 (2002),  had provided a lesser standard to prenuptial agreements than separation agreements, stating that in order to be enforceable, prenuptial agreements they must not be “unconscionable” and must not strip a spouse of viritually of  of his or her marital rights.   As another protection to the contracting spouse against whom the contract is being enforced, it is the spouse seeking enforcement that has the burden to satisfy the court as to all these critia.

Ansin v. Craven-Ansin is the first Massachusetts case addressing postnuptial agreements since Fogg v. Fogg, 409 Mass. 531 (1991).  In Fogg, parties entered into a postnuptial agreement which required the Husband to transfer valuable properties to the Wife.  Shortly thereafter, the Wife filed for divorce.  The Court held that the Wife had not entered the agreement in good faith, and in famous footnote 2 “left for another day” the question as to whether marital agreements were valid.

July 16, 2010 was that “other day”, and SJC provided cogent, protected and reasonable standards which will assist spouses in drafting the agreements that will protect and promote their marriages.

In our marital mediation practices, we find couples who want to preserve their marriages, but need our help. Too often struggling spouses think that divorce is their only choice.  A carefully conceived written postnuptial agreement addressing a certain problem that is causing the marriage to derail is often exactly what a couple needs to eliminate the conflict that is tearing them apart.  In our work, we have seen many marriages begin to flourish again after a postnuptial agreement is carefully conceived and signed by the spouses.

To see the oral argument on April 7, 2010 by counsel for the spouses in the Ansin v. Craven-Ansin case in front of the Supreme Judicial Court, click link here.  http://www.suffolk.edu/sjc/archive/2010/SJC_10548.html