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

December 20, 2010 by  
Filed under Divorce, New Cases

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.

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