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.

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