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.

When a Parent Wants to Relocate with a Child

We live in a very mobile society. People come to Massachusetts for their education and for job opportunities from all over the U.S. and foreign countries. This poses a problem when a spouse wishes to go back home  after a divorce– to their state (or home country) where their extended family lives and want to take the children of the marriage with them.  (The technical term for this is “removal”. )

The problem also comes up with job loss and employment opportunities for a spouse who has joint or primary custody of the children. It is a difficult problem for spouses to deal with even in an ongoing marriage. So when spouses are divorcing (or have already divorced), when the level of cooperation and good will may be at a lower point, it is especially difficult.

In divorces, I have seen the following permutations:

Both divorcing spouses decide it’s best to move to the city or country chosen by one. Or sometimes the primary parent spouse moves away with the children and without the other former spouse. Sometimes the non-primary parent moves away without the children. The decision regarding removal needs to be made gently, thoughtfully and carefully, with the utmost attention to the needs and well-being of the children.

It is important to have children near extended family, if possible. But it is also important for the children to be near both parents, if possible.  Sometimes a spouse needs to move to get  family support and help taking care of the children, or to earn a livelihood. No matter how you slice it, when a parent leaves permanently with children, it is a hard situation.

In cases where a parent has primary physical custody, a court may permit that parent with the child or children if he/she shows that there is a “real advantage” to the move. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 705, 706, 711 (1985). Under the real advantage test, “[s]hould it be found that there is a genuine, recognizable advantage to the custodial parent from the move, the inquiry then turns to whether the move is consistent with the children’s best interests. In the analysis, the consideration of the advantages to the custodial parent still remains a significant factor in the equation. Pizzino v. Miller, 67 Mass. App. Ct. 865, 870 (2005).   In cases that have gone to litigation on this issue, it’s a fairly high burden of proof to meet.

The American Law Institute’s Principles of the Law of Family Dissolution in Chapter 2 has also weighed in on the issue of removal. It asserts that “[T]he court should allow a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose”.   And the American Academy of Matrimonial Attorneys (AAMA) has issued a proposed Model Relocation Act, which in sections 405 and 406 articulates factors to be considered, and factors not to be considered when determining a contested removal. Interesting in the (short) list of what is not to be considered is whether the parent seeking relocation has said that he/she would not relocate if the removal petition was denied.

Because removal is such a difficult juncture for parents with close ties to children, removal issues are good topics to use alternative dispute resolution techniques to resolve, such as Mediation or Collaborative Law. They require the utmost in flexibility, good will, and clear thinking on the part of the parents, with capable assistance by attorneys or mediators.

Laurie Israel  is engaged in helping divorcing and divorced resolve their disputes in the most humane way possible.   She is joined in her practice of family law at the firm with Karen Van Kooy and Ronny Sydney.

Laurie Israel,  founder of the firm Israel, Van Kooy & Days, LLC  has a tax background and an interest in what makes marriages break down. She is on the board of the Massachusetts Council on Family Mediation, and is a board member and is active in the Massachusetts Collaborative Law Council.  She writes and presents on prenuptial agreements, collaborative law, mediation and marriage.