Miller v. Miller ( 2018 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12298
BENJAMIN H. MILLER vs. JOANNA ISABELLA MILLER.
Middlesex. September 6, 2017. - January 12, 2018.
Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, &
Kafker, JJ.
Divorce and Separation, Child custody. Minor, Custody. Parent
and Child, Custody.
Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on May 20, 2013.
The case was heard by Patricia A. Gorman, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Elaine M. Epstein (Richard M. Novitch also present) for the
husband.
Matthew P. Barach (Melinda J. Markvan also present) for the
wife.
CYPHER, J. The husband, Benjamin H. Miller, appeals from a
Probate and Family Court judgment permitting the wife, Joanna
Isabella Miller, to remove and relocate the parties' daughter to
Germany, the wife's home country. We have previously held that
2
when deciding whether removal should be permitted, the
particular criteria depends on whether physical custody of the
child is sole or shared. Where the parent seeking removal has
sole physical custody, his or her removal petition is analyzed
using what has been called the "real advantage" standard
of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). Where,
however, the parents share physical custody, a parent's removal
request is evaluated using the standard articulated in Mason
v. Coleman, 447 Mass. 177 (2006), known as the "best interests"
standard. In this case, no prior custody order existed to guide
the trial judge as to whether the Yannas or Mason analysis
should apply. In such circumstances, we hold that the judge
must first perform a functional analysis, which may require a
factual inquiry, regarding the parties' respective parenting
responsibilities to determine whether it more closely
approximates sole or shared custody, and then apply the
corresponding standard. 1 We also take this opportunity to
1
In the concurrence's view, our adherence to the Yannas-
Mason framework when deciding this case constitutes an
endorsement of an overly formalistic analysis that constrains
judges' discretion. See Mason v. Coleman, 447 Mass. 177 (2006);
Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). By
incorporating this functional (rather than formalistic) inquiry
regarding custody into our existing framework, however, we seek
to provide trial judges with more discretion when deciding these
cases (beyond that inherent in a judge's application of either
Yannas or Mason). And although we do not necessarily disagree
with certain of the concurrence's concerns, to the extent we
must reexamine the wisdom of the Yannas-Mason framework, we wait
3
emphasize that the best interests of the child is always the
paramount consideration in any question involving removal.
We are satisfied that the judge conducted the requisite
functional analysis here, and in determining whether removal was
in the child's best interests she afforded considerable weight
to the benefits the proposed move to Germany would offer the
wife, the child's primary caregiver. Because we discern no
abuse of discretion or error of law from the judge's
consideration of those benefits, or from her ultimate conclusion
that removal is in the child's best interests, we affirm the
judgment below.
Background. 2 The wife, a German citizen, and the husband, a
United States citizen, were married in Tanzania in September,
2007. Their only child, a daughter, was born in Uganda in
March, 2008. In July, 2011, the family moved to Massachusetts,
where the husband's family resides, so that the husband could
attend graduate school. The parties did not intend to remain in
Massachusetts and planned to leave once the husband received his
graduate degree. The wife had grown up in Germany and had never
to do so in a case where the issue has been raised and briefed
by the parties.
2
We present the relevant facts as found by the judge,
supplementing them by the record where necessary, and reserving
certain details for our discussion of the issues. A.Z. v. B.Z.,
431 Mass. 150, 151 (2000).
4
lived in the United States before, and the husband had not
resided here in eighteen years.
The husband ultimately did not attend graduate school,
however, and the parties first separated in April, 2012. During
this separation, which lasted from April to August, the wife
moved with the child to Germany, where they resided with the
wife's mother and the child attended a German public school.
The wife returned to Massachusetts with the child that August in
an attempted reconciliation, but the parties separated for the
final time in September, 2012. The husband filed for divorce in
May, 2013, citing an irretrievable breakdown of the marriage and
requesting shared custody of the child. The wife counterclaimed
shortly thereafter, seeking sole custody of the child and
requesting permission to permanently remove her to Germany.
Among the relevant facts found by the judge was the
determination that the "[w]ife has been [the child]'s primary
caregiver since birth," and has continued in that role following
the parties' separation. The wife cared for the child when she
was an infant, and is now the parent who "arranges and attends
her medical appointments," "cares for [the child] when she is
ill," "purchases the majority of her clothing, and attends all
parent-teacher conferences." The judge also found that although
the "[h]usband is not seeking sole physical custody of [the
child,] and does not propose that he should be her primary
5
caregiver," the husband does participate in certain parenting
tasks, and he and the child have a loving relationship.
Following their divorce filings, the parties filed a
stipulation in the trial court stating that they "shall share
custody" of the child. By its terms, the husband, who lives in
an apartment in Watertown, has the child overnight on Mondays
and Wednesdays; he also has her every Saturday, and alternates
each week between dropping the child off with the wife that
Saturday evening, or the following evening on Sunday. The wife
has the child at all other times at the couple's former marital
residence in Somerville, where the wife still resides. 3 In
practice, however, the husband often travels for work, and when
he does he communicates with the child infrequently, and he
misses parenting time that he has not sought to make up. The
judge also found that "the parties struggle to communicate
effectively regarding parenting issues," and that the husband
does not usually allow the wife to speak with the child when the
child is in his care.
Despite their impressive professional credentials, 4 the
husband and wife have both struggled financially since they
3
It is uncontested that the stipulation establishes an
approximate split of sixty per cent-forty per cent in parenting
time, with the wife receiving the greater amount.
4
The husband earned degrees from Harvard University and the
University of Chicago, and has extensive experience working for
6
arrived in Massachusetts, and the judge concluded that their
current parenting arrangement is "financially untenable." The
husband's salary from his current position at a Cambridge-based
nonprofit is insufficient to provide for the wife and the child;
he cannot meet his current expenses, which include weekly child
support payments to the wife and paying for the wife and the
child's health insurance. The judge found that the wife is
likewise "unable to provide for [the child] in Massachusetts."
Despite her good-faith efforts to find a job -- she has applied
for over 400 positions -- the wife has been unable to find one
commensurate with her experience. At the time of trial she was
working part-time as a kitchen assistant making fourteen dollars
per hour; beyond that, her income consisted of the husband's
child support payments, supplemental nutrition assistance
program benefits for the child, and periodic financial support
from both the husband's and her own mother. 5
Prior to trial, the wife was offered a well-paying job in
Germany, which the judge found would enable the wife "to support
herself and [the child] without child support from [the
h]usband." Beyond a livable salary, its benefits include health
nongovernmental organizations. The wife likewise holds two
degrees, speaks three languages, and specializes in public
relations in the Middle East region.
5
The judge found that the wife has borrowed over 100,000
euros from her mother, who "has liquidated most of her private
retirement fund" to support her daughter.
7
insurance and "the ability to work from home most of the time."
The wife expressed her intention of accepting the position if
her requests for custody and removal were granted. In contrast
with Massachusetts, where the wife lacks any family or friends,
a return to Germany would place the wife among her extended
family. This includes the wife's mother, with whom the child is
especially close. The child has already spent considerable time
in Germany as well -- she has visited at least ten times since
birth, and has attended German schools for two extended periods.
The child is fluent in German, has a German passport, and has
kept in regular contact with her family and friends there.
Following a three-day trial, the judge concluded that
permanently relocating to Germany with the wife was in the
child's best interests and granted the wife's requests for
physical custody and removal. The judgment granted the husband
"parenting time with [the child] during three of the four annual
vacations from school in Germany, including six consecutive
weeks during each summer vacation," as well as "additional
parenting time with [the child] in Germany upon reasonable
notice to [the w]ife by agreement." The husband appealed from
the judgment, and we transferred his case from the Appeals Court
on our own motion.
8
Discussion. The husband challenges the judge's removal
order on two grounds. 6 First, he argues that the judge erred in
applying the "real advantage" analysis of Yannas, applicable
where a parent seeking removal has sole physical custody of his
or her child. The husband contends that because the parties
shared physical custody of the child, the judge should have
applied the "best interest" standard articulated in Mason.
Second, the husband argues that even if the judge properly
employed the Yannas standard, she nevertheless abused her
discretion in concluding that removal is in the child's best
interests. Before engaging the husband's arguments, we briefly
review the legal framework for evaluating removal petitions in
the Commonwealth.
1. Applicable law. a. G. L. c. 208, § 30. General Laws
c. 208, § 30, governs removal from the Commonwealth of children
of divorced parents where one parent seeks to relocate without
the consent of the other parent. It provides that "[a] minor
child of divorced parents who is a native of or has resided five
years within this commonwealth . . . shall not . . . be removed
6
While the husband's notice of appeal states that he
appeals the lower court judge's determinations as to both
custody and removal, his brief focuses solely on the removal
issue. Given the husband's focus on that issue, and the fact
that "[t]he custody issues in this case are bound up with [the
wife's] request to remove the children from the Commonwealth,"
Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 138-139 (2009),
we likewise fix our attention on the removal issue to resolve
the husband's appeal.
9
out of this commonwealth . . . without the consent of both
parents, unless the court upon cause shown otherwise orders."
G. L. c. 208, § 30. 7 "Upon cause shown" means that removal is in
the best interests of the child. Yannas, 395 Mass. at 711. The
statute is intended to "preserve the rights of the noncustodial
parent and the child to maintain and develop their familial
relationships, while balancing those rights with the right of
the custodial parent to seek a better life for himself or
herself." Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775
(2006), citing Yannas, supra at 712.
We note at the outset that the removal statute does not, by
its terms, apply to the parties' daughter: she was born in
Uganda, so she is not "a native" of the Commonwealth; likewise,
she had "resided" here for less than five years when the wife
7
Despite the removal statute's longevity -- it was first
enacted in 1842 -- the substantive case law and principles did
not begin to develop until the 1970s and 1980s. Earlier cases
simply acknowledged the statute's import in light of its plain
meaning. See, e.g., Hersey v. Hersey, 271 Mass. 545, 555 (1930)
("It is plain also that the respondent, by taking the child out
of the Commonwealth, has not abided by the terms of [§ 30]").
This court first interpreted the statutory language in Rubin v.
Rubin, 370 Mass. 857, 857 (1976), where we held that the phrase
"upon cause shown" means the best interests of the child. Even
as of 1981, however, the Appeals Court observed that
"Massachusetts authorities have not discussed in detail the
factors to be weighed in deciding questions of removal." Hale
v. Hale, 12 Mass. App. Ct. 812, 815 (1981). Hale was the first
Massachusetts case to explore those factors in detail, as well
as the first to adopt a "real advantage" analysis. Id. at 815-
820. In doing so, Hale set the stage for this court's first in-
depth discussion of the factors to be considered in evaluating a
removal petition in Yannas.
10
filed her removal request. This does not mean, however, that
the removal principles developed in cases under § 30 are not
relevant or applicable here. This court previously has applied
(or endorsed the application of) those principles in other
circumstances where not every component of the removal statute
was satisfied. See, e.g., Smith v. McDonald, 458 Mass. 540, 546
(2010), citing Wakefield, 67 Mass. App. Ct. at 775 (applying
§ 30 principles to child of unmarried parents, despite
recognition that "a statute governing divorced children is not
applicable directly to nonmarital children," in light of "the
legal equality of nonmarital children"); Smith, supra at 546
n.13, quoting Altomare v. Altomare, 77 Mass. App. Ct. 601, 602-
603 (2010) (although § 30 "applies only to relocation outside
the Commonwealth, '[w]e apply out-of-State removal principles to
in-State moves,' pursuant to common law, in cases where the move
would disrupt significantly existing parenting arrangements,
such as when the move is long-distance"). 8 In light of the
considerable time the child has spent in Massachusetts, the
meaningful ties she has developed while here, and the fact that
the wife's proposed move would likewise "disrupt significantly
existing parenting arrangements," Smith, supra at 546 n.13, we
8
This approach is consistent with "the Commonwealth's broad
policies of protecting the family unit and promoting the best
interests of children." Upton v. JWP Businessland, 425 Mass.
756, 759 (1997).
11
analyze the wife's removal request using the same principles
developed in cases under the removal statute. 9
b. Removal analysis. The "touchstone inquiry" is always
whether removal is in a child's best interests. Smith, 458
Mass. at 544. This question "can be resolved only on a case by
case basis," Yannas, 395 Mass. at 711, as the best interest
standard "is one grounded in the particular needs and
circumstances of the individual child in question" (citation
omitted). Mason, 447 Mass. at 183-184. Still, this court has
established certain guideposts to aid the judge's determination
of this often difficult question. Removal petitions in the
Commonwealth are evaluated under one of two analyses, depending
on the physical custody of the child. 10 Where one parent has
sole physical custody, a judge must evaluate that parent's
request to remove the child under the "real advantage" analysis
set forth in Yannas, supra at 711-712. Where, on the other
hand, the parents share joint physical custody, a judge must
apply the "best interests" analysis articulated in Mason, supra
9
It is also worth noting the children in Mason were, like
the child in this case, "not born in the Commonwealth" and "had
not resided in the Commonwealth for five years when the mother
requested permission for removal." Mason, 447 Mass. at 183 n.9.
10
"Physical custody" refers to a child's residence with and
supervision by one or both parents; it may be either sole or
shared physical custody. G. L. c. 208, § 31. This is distinct
from "legal custody," which refers to the "right[s] and
responsibilit[ies] [of parents] to make major decisions
regarding the child's welfare." Id.
12
at 178. 11 "The main distinction" between these analyses "comes
down to the weight that should be assigned to the benefits that
relocation would provide the parent seeking to move." Prenaveau
v. Prenaveau, 75 Mass. App. Ct. 131, 139 (2009). 12
c. Evaluating custody. In deciding the applicable removal
standard where there is no custody order the judge must first
evaluate the parties' custodial arrangement and determine
whether it more closely resembles sole or shared custody. Sole
physical custody "generally reflects that the children reside
with only one parent 'subject to reasonable visitation by the
other parent.'" Mason, 447 Mass. at 182, quoting G. L. c. 208,
§ 31. Shared physical custody, on the other hand, "contemplates
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.'" Mason,
supra, citing G. L. c. 208, § 31. Compare Abbott v. Virusso, 68
Mass. App. Ct. 326, 327 (2007), S.C., 450 Mass. 1031 (2008)
11
We reiterated the distinction between these two analyses
most recently in Smith v. McDonald, 458 Mass. 540 (2010). There
we noted that "[w]hen a parent has sole custody of a child . . .
the analysis articulated in Yannas . . . applies" to that
parent's removal request (citation omitted). Id. at 547. We
observed that "[a] different analysis, more protective of the
interests of the parent who is not relocating, is appropriate
when the parents share joint physical custody." Id. at 547
n.14, citing Mason, 447 Mass. at 184-185.
12
Yannas recognizes that the best interests of a child can
be greatly affected by the happiness of the primary caregiver
where care or custody is not equal. Yannas, 395 Mass. at 710.
13
(mother had sole physical custody of son where son resided
primarily with her, and mother was his "primary care parent"),
with Mason, supra at 178-179 (parents shared physical custody
where "each parent took the part of a 'primary caretaker'"
during marriage, and they "divided physical custody of the
children approximately equally" after divorce).
In determining which manner of custody is present in a
given case, the judge typically will look to an existing custody
order between the parties. Even where there is such an order,
though, the judge is still required to look beyond its
characterization of custody (e.g., "the parties shall share
physical custody"), in order to examine "the functional
responsibilities and involvement of each parent" with their
child in practice. Altomare, 77 Mass. App. Ct. at 605. 13
13
This functional assessment is necessary for two reasons.
First, "custody judgments issued by the Commonwealth's courts do
not consistently utilize" the categorical phrases "sole physical
custody" or "shared physical custody" "as defined in G. L. c.
208, § 31." Abbott v. Virusso, 68 Mass. App. Ct. 326, 329 n.8
(2007), S.C., 450 Mass. 1031 (2008), and cases cited. As a
result, "such categorizations . . . are utilized inconsistently,
[and] can obscure more than they illuminate." Altomare v.
Altomare, 77 Mass. App. Ct. 601, 605 (2010). Second, even where
a custody order renders such a "categorical custodial
determination," Woodside v. Woodside, 79 Mass. App. Ct. 713, 717
(2011), the actual practice of the parties may differ from what
the order specifies. See, e.g., Altomare, supra at 606
(although divorce judgment provided for "shared legal and
physical custody" of couple's children, "as a functional matter"
caring for children was "the primary responsibility of the
wife"); Abbott, supra at 327 (despite fact that divorce judgment
provided that parties would "share physical custody of their
14
See id. at 605-606, and cases cited ("Our cases make clear that,
in the context of spousal relocation, the label we attach to
custodial status results from a factual inquiry").
In other cases, such as the instant one, there is no prior
custody order to refer to, as a parent's removal request is
concurrent with their divorce complaint. Still, the same
principles apply; in deciding the appropriate removal standard,
the judge must focus on "functional," as opposed to technical,
"divisions in caregiving and parenting
responsibilities." Woodside v. Woodside, 79 Mass. App. Ct. 713,
717 (2011). At this stage, "the judge must make a 'factual
inquiry' to determine the approximate custodial arrangement and
then apply the corresponding test" (citation omitted). Id.i. Sole custody and Yannas. As we explained in Yannas,
where one parent has sole physical custody, the interests of
that child are "so interwoven with the well-being of the
custodial parent" that "the determination of the child's best
interest requires that the interests of the custodial parent be
taken into account" (citation omitted). Yannas, 395 Mass. at
710. Yannas involves a two-part inquiry. First, a judge must
examine "whether there is a good reason for the move, a 'real
advantage'" to the parent. Id. at 711. This requires the
children," in practice son "continued to reside primarily with
the mother," who was "the son's 'primary care parent'").
15
custodial parent to establish "a good, sincere reason for
wanting to remove to another jurisdiction." Id. At this stage
the judge must consider "the soundness of the reason for moving,
and the presence or absence of a motive to deprive the
noncustodial parent of reasonable visitation." Id.Second, if the custodial parent satisfies that threshold
inquiry, the judge must then "consider[] collectively" the
interests of the custodial parent, the noncustodial parent, and
their child, and balance those interests to determine whether
removal is in the best interests of the child. Id. at 712.
Pertinent considerations at this step include "whether the
quality of the child's life may be improved by the change
(including any improvement flowing from an improvement in the
quality of the custodial parent's life), the possible adverse
effect of the elimination or curtailment of the child's
association with the noncustodial parent, and the extent to
which moving or not moving will affect the emotional, physical,
or developmental needs of the child." Id. at 711. "It is
important to emphasize that consideration of the advantages to
the custodial parent does not disappear" at this second step,
"but instead remains a significant factor in the
equation." Pizzino v. Miller, 67 Mass. App. Ct. 865, 870
(2006). Here the judge should also consider "[t]he
reasonableness of alternative visitation arrangements." Yannas,
16
395 Mass. at 711. See Dickenson v. Cogswell, 66 Mass. App. Ct.
442, 447-453 (2006) (explaining appropriate consideration and
weighing of interests under Yannas); Rosenthal v. Maney, 51
Mass. App. Ct. 257, 268-272 (2001) (same).
ii. Joint custody and Mason. In Mason, we explained that
"[w]here physical custody is shared, the 'best interest'
calculus pertaining to removal is appreciably different from
those situations that involve sole physical custody." Mason,
447 Mass. at 184. Under Mason, "[t]he advantage to the moving
parent becomes merely a relevant factor in the over-all inquiry
of what is in the child's best interests." Wakefield, 67 Mass.
App. Ct. at 776. This is so because with shared custody, "[n]o
longer is the fortune of simply one custodial parent so tightly
interwoven with that of the child; [here] both parents have
equal rights and responsibilities with respect to the child[].
The importance to the child[] of one parent's advantage in
relocating outside the Commonwealth is greatly
reduced." Mason, supra at 184-185. See Smith, 458 Mass. at
547, n.14 (Mason is "more protective of the interests of the
parent who is not relocating"); Prenaveau, 75 Mass. App. Ct. at
140 (Mason makes it "more difficult for the parent to justify
the uprooting of the child").
2. The standard applied by the judge. Turning to the
facts of this case, we must first determine which of the two
17
removal standards the trial judge applied below. In certain
respects, it appears the judge thought she could apply neither.
More than once during the trial proceedings the judge declared
that she would apply a general "best interest" standard to the
removal issue, on the ground that "there is no custody order." 14
And in her opinion authorizing removal, she explained that the
two-step analysis of Yannas applies "if there is a current court
order granting one party sole physical custody." As we have
stated, although an existing custody order is of course a common
feature of removal cases, the fact that one does not exist does
not preclude the application of the appropriate removal
standard. 15,16
14
The judge first said this in her order on the parties'
joint motion seeking clarification as to the standard the
guardian ad litem should apply to the removal issue. She wrote
that "[a]lthough the [guardian ad litem] shall gather facts and
report as to [the wife's] advantage by the move, the standard to
be used as there is no custody order should be 'best interest.'"
The judge then reiterated this point at trial. There is no
indication that the judge, when mentioning the "best interest"
standard, was referring to the Mason analysis.
15
The husband maintains that the stipulation itself is an
existing custody order. The stipulation specifically states
that its status as a "[t]emporary [o]rder or [j]udgment" is
"subject to the approval of the [c]ourt." There is no
indication, however, that the probate judge approved the
stipulation because it lacks the judge's signature or some other
indicia of court approval. Unlike the judge's various orders,
which are reflected on the docket as such, the parties'
agreement was docketed only as a "Stipulation of the Parties."
And not once during the trial proceedings did the judge refer to
the stipulation as an order; indeed, as we just noted, the judge
18
It is clear from the judge's written decision that she
thoroughly examined the parties' allocation of custody and
parenting responsibilities. See Woodside, 79 Mass. App. Ct. at
717. The judge made sixty-one factual findings concerning only
custody, with many addressing how the parties have divided the
child's care. The judge concluded that "[a]lthough [the
h]usband was involved in caring for [the child] during the
marriage, [the w]ife has always been primarily responsible for
her physical and emotional care, as well as day-to-day tasks
such as feeding, clothing, and bathing." More significantly, in
the opinion's section discussing removal, the judge analyzed the
issue solely in terms of the two steps of the Yannas analysis,
concluding that "although G. L. c. 208, § 30, does not apply,
because there is a real advantage to the [w]ife in the proposed
removal, and because the removal is consistent with [the
child]'s best interests, it would bring about the same result if
it did." See Prenaveau, 75 Mass. App. Ct. at 140 (court's
conclusion that Mason was "the proper lens through which to
repeated -- despite the stipulation's existence -- that "there
is no court order" regarding custody.
16
Yannas itself involved an instance where there was no
prior custody order; there, as here, the wife's removal petition
was part of her divorce action. Yannas, 395 Mass. at 705-706.
Likewise, there was no earlier custody order in Wakefield v.
Hegarty, 67 Mass. App. Ct. 772, 772-773 (2006), in which the
mother sought removal while her custody case was still pending.
In both cases the courts still proceeded to apply the "real
advantage" standard.
19
evaluate the judge's ruling . . . reinforced by the fact that
the judge made no attempt to justify the removal decision using
a Yannas analysis" [citation omitted]). We have already stated
that although the removal statute does not apply directly here,
the same removal principles do, including the "real advantage"
analysis of Yannas. On this score, we agree with the wife
that Yannas, not Mason, is "the proper lens through which to
evaluate the judge's ruling" in this case.
See Prenaveau, supra.
3. The merits. The husband does not challenge the judge's
pertinent factual findings, so we review both her determination
of the applicable removal standard, and her ultimate conclusion
as to whether removal is in the child's best interests, for an
abuse of discretion. Mason, 447 Mass. at 184. "[A] judge's
discretionary decision constitutes an abuse of discretion where
[the appellate court] conclude[s] the judge made 'a clear error
of judgment in weighing' the factors relevant to the decision
. . . such that the decision falls outside the range of
reasonable alternatives" (citation omitted). L.L.
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The husband first argues that the judge abused her
discretion in applying the "real advantage" analysis
under Yannas. He maintains that because the parties shared
physical custody of the child, the judge should have evaluated
20
the wife's removal petition using the "best interest" standard
of Mason, which affords less weight to the advantages a move
offers the parent seeking removal. In support of his contention
of shared physical custody, the husband relies primarily on the
stipulated parenting plan the parties filed in the trial court
following their respective divorce filings, which states that
the husband and the wife "shall share custody" of the child.
According to the husband, the stipulation, which was "in effect
for over three years as of the trial judge's Judgment,"
allocates parenting responsibilities "almost equally." 17
The judge clearly considered the stipulation, having
detailed its contents both in her recitation of the case's
procedural history and in an individual factual finding. Yet
the judge also found that the husband travels frequently for
work, and when he does he "communicates with [the child]
infrequently" and misses allotted parenting time that he has not
sought to make up. With respect to the parties' parenting
responsibilities, the judge found that the wife has always been
the child's primary caregiver. The husband, in contrast, is
"not seeking sole physical custody of [the child] and does not
propose that he should be her primary caregiver." See,
17
The husband also points to the fact that the guardian ad
litem, in her report on the removal issue, characterized the
parties' arrangement as "coparenting." The judge was not
required to adopt the guardian ad litem's characterization.
Mason, 447 Mass. at 186.
21
e.g., Woodside, 79 Mass. App. Ct. at 718 (no abuse of discretion
in applying Yannas where "mother was the primary
caregiver"); Wakefield, 67 Mass. App. Ct. at 776-777 (same).
Likewise, although a hallmark of shared custody is the parents'
"ability and desire to cooperate amicably and communicate with
one another to raise the[ir] child[]," Mason, 447 Mass. at 182,
the judge found that "the parties struggle to communicate
effectively regarding parenting issues, and that [the h]usband
often fails to communicate with [the w]ife." See Katzman
v. Healy, 77 Mass. App. Ct. 589, 596 & n.7 (2010) (questioning
propriety of judge's "Mason-like approach to removal" where
cooperation necessary for shared physical custody was "obviously
not present"); Prenaveau, 75 Mass. App. Ct. at 143 (same). As
we noted, the husband does not contest these findings.
The Mason analysis generally applies where "neither parent
has a clear majority of custodial responsibility" (citation
omitted). Mason, 447 Mass. at 185. Although the terms of the
parties' stipulation may have approximated shared custody, the
judge concluded (in light of the above facts) that in practice,
their custodial arrangement more closely resembled the sole
custody of Yannas. Past cases support the judge's conclusion on
this point. See, e.g., Altomare, 77 Mass. App. Ct. at 602, 606
(wife had sole custody where, despite prior custody order
stating that "[t]he parties shall have shared . . . physical
22
custody," children were "as a functional matter" "under the
primary responsibility of the wife"); Abbott, 68 Mass. App. Ct.
at 327, 330 (applying Yannas to mother's request to remove son
where, despite prior custody order stating that parties were to
"share physical custody of the children," son "continued to
reside primarily with the mother who . . . [was] the son's
'primary care parent'"). Because the judge's decision plainly
does not "fall[] outside the range of reasonable alternatives"
here, L.L., 470 Mass. at 185 n.27, we conclude she did not abuse
her discretion in analyzing the wife's removal petition using
the "real advantage" standard of Yannas.
Turning to the judge's application of the Yannas analysis,
the husband does not argue that the first step of Yannas is not
satisfied -- namely, that there is a real advantage to the wife
in moving to Germany. As the judge found, the wife has secured
a well-paying job, something she has been unable to accomplish
in Massachusetts, despite having "applied for over 400 jobs,"
and her entire support system is there. There is also nothing
to suggest that the wife's move is motivated by a desire to
deprive the husband of parenting time with the child. Yannas,
395 Mass. at 711.
Instead, the husband only challenges the judge's subsequent
conclusion, formally the second step of the Yannas analysis,
that removal is in the child's best interests. The husband
23
contends that the judge abused her discretion in reaching that
conclusion because she failed to consider adequately how removal
would impact or benefit the child, and failed to consider
reasonable alternative visitation arrangements. To recount, at
this stage the judge must collectively consider the interests of
all those involved -- child, custodial parent, and noncustodial
parent -- and balance those interests in order to determine
whether removal is in the best interests of the
child. Yannas, supra at 712. The "judicial safeguard" of each
person's interest "lies in careful and clear fact-finding." Id.
a. Interests of the child. In assessing the interests of
the child, a judge is bound to consider "whether the quality of
a child's life may be improved by the change (including any
improvement flowing from an improvement in the quality of the
custodial parent's life)," the effect of the move on "the
child's association with the noncustodial parent," as well as
its effect on "the emotional, physical, or developmental needs
of the child." Yannas, 395 Mass. at 711. See Dickenson, 66
Mass. App. Ct. at 449-450.
With respect to the effect of the move on the child's
quality of life and her "emotional, physical, or developmental
needs," the judge found that in Germany the child would be
attending better schools, and would again be treated by her
long-time pediatrician. She found further that in Germany the
24
child would "have support from the loving extended family with
whom she has had frequent and extensive contact since birth,"
including her maternal grandmother, with whom the child "is very
close." 18 Although the judge observed that the child struggles
during transitions between the parties' households, nothing in
the record suggests that she would likewise struggle with a move
to Germany. To the contrary, the child has been visiting the
country throughout her life, including for extended periods.
She is fluent in German, has already attended German schools,
and keeps in touch with her friends there (who would also be her
classmates if she were to return to Germany).
More significantly, the judge observed that the child's
quality of life will be "particularly" improved "through the
impact of the improvement in [the w]ife's quality of life." In
Massachusetts, the wife could not meet her expenses, and lived
in poverty. By contrast, the judge found that the wife's well-
paying job in Germany would permit her to support herself and
18
The husband protests that the judge failed to find that
the child's connections in Germany are in any way more
substantial than her connections in Massachusetts. Indeed, the
judge found that the child and the husband spend meaningful time
with each other and the husband's family. But "[t]here is
nothing in the record to indicate that, here, those
relationships are so important to [the child's] emotional well-
being that they deserve primacy over [her] relationship with
[her] mother, who ha[s] been the primary custodial parent
throughout [the child's] life." See Rosenthal v. Maney, 51
Mass. App. Ct. 257, 272 (2001) (reversing judgment denying
removal).
25
the child, while continuing to fulfil her role as the child's
primary caregiver, as the position would enable the wife "to
work from home most of the time." Compare Wakefield, 67 Mass.
App. Ct. at 777 (mother's "income will increase, and she will be
able to work from home and spend more time with her daughter"),
and Rosenthal, 51 Mass. App. Ct. at 268 (family's financial
situation "greatly improved" by move), with Dickenson, 66 Mass.
App. Ct. at 449 ("The child's financial security would . . . be
diminished by the move," as it placed mother in "a less-stable
employment relationship"). In addition, the wife has virtually
no support network in Massachusetts because she "has few
acquaintances" here and "feels lonely and isolated," but in
Germany she would reunite with her supportive extended family.
The trial judge concluded that this improvement in the wife's
emotional situation would also "benefit [the child]
significantly." See Pizzino, 67 Mass. App. Ct. at 870 ("Common
sense demonstrates that there is a benefit to a child in being
cared for by a custodial parent who is fulfilled and happy
rather than by one who is frustrated and angry").
Notwithstanding the direct and indirect benefits a move to
Germany would offer the child, the judge also found that the
child has a "loving relationship" with her father, and
recognized that moving to Germany would have a "detrimental
effect" on that relationship.
26
b. Interests of the custodial parent. "Because the best
interests of a child are so interwoven with the well-being of
the custodial parent, the determination of the child's best
interest requires that the interests of the custodial parent be
taken into account." Yannas, 395 Mass. at 710. The judge
thoroughly considered the wife's interests in moving to Germany.
The judge found that despite the wife's professional background
and diligent efforts, she has been unable to find a job in
Massachusetts commensurate with her education and experience,
rendering her continued presence here unsustainable. 19 The wife
has been offered a position in Germany with a salary that would
allow her to "support herself and [the child] without child
support from [the h]usband," and benefits that include use of a
company vehicle, ample vacation time, health insurance and
retirement benefits, and the ability to work from home most of
the time. As mentioned, the judge concluded that a move to
Germany offers the wife significant improvements to her
financial and emotional health. See, e.g., Williams v. Pitney,
19
It is noteworthy that although the wife works in the
highly-specialized field of public relations in the Middle East
(the trial judge observed this made it "unsurprising that her
job search has been difficult"), the wife also applied for
positions for which "she was overqualified, such as office
assistant positions," and even looked for work "in Germany or
the Middle East that would allow her to work from
Massachusetts." The trial judge thus concluded that the wife
made "a good faith effort" to find gainful employment in
Massachusetts.
27
409 Mass. 449, 456 (1991) (mother would benefit from move,
"would be close to friends and relatives who would provide
emotional support after the move, and . . . would be better able
to secure employment").
c. Interests of the noncustodial parent. Last, the judge
must consider the interests of the noncustodial parent. Yannas,
395 Mass. at 711. This includes assessing "whether reasonable
'alternative visitation arrangements' might achieve ongoing and
meaningful contact appropriate to the
circumstances." Rosenthal, 51 Mass. App. Ct. at 271,
quoting Yannas, supra.The judge found that the husband cares for the child
deeply, and recognized the "detrimental effect" separation would
have on their relationship. She also acknowledged the husband's
concerns "regarding his ability to communicate with [the child]
on a regular basis given the six-hour time difference between
Massachusetts and Germany," as well as the various travel costs
the husband would incur during his visitation periods. The
judge concluded that, in addition to frequent telephone and
Internet contact, aligning the husband's visitation with the
child's extended vacation periods will lessen the detrimental
effects of their separation, by providing them with lengthier,
and hence more meaningful, visits together. Contrast Dickenson,
66 Mass. App. Ct. at 449, 451 (under mother's proposed
28
visitation schedule, which would entail "frequent 'red-eye'
flights" between Massachusetts and California, "someone would
inevitably be tired and stressed . . . thereby diminishing the
quality of the visits"). In light of the travel costs the
husband would incur in facilitating visitation with the child,
the judge did not order child support.
d. Balancing the interests. After consideration of the
parties' and child's respective interests, the judge must
balance those factors to determine whether removal is in the
best interests of the child. Yannas, 395 Mass. at 711-712. A
judge's determination of the best interests of the child
represents a "classic example of a discretionary decision" in
which "much must be left to the trial judge's experience and
judgment" (citation omitted). Adoption of a Minor (No. 2), 367
Mass. 684, 688 (1975).
We discern no abuse of discretion with respect to the
judge's consideration and balancing of the interests at stake
here. The judge recognized that she was faced "with two
difficult alternatives." Granting the wife's removal request
would have the negative impact of permanently altering the
child's relationship with her father, who cares for her deeply.
Yet the judge also determined, on the basis of uncontested
factual findings, that "allowing the current shared parenting
schedule is financially untenable for the parties." Financial
29
struggle -- "poverty," as the wife described her current
lifestyle -- is in the interest of no child. As in Yannas, a
move to Germany "would be to the advantage of the wife,
financially, emotionally, and socially," and would inure to the
child's benefit as well. Yannas, 395 Mass. at 712. Removal has
been deemed appropriate in similar circumstances in past cases.
See, e.g., Williams, 409 Mass. at 456 (affirming grant of
removal where mother "would be close to friends and relatives
who would provide emotional support after the move, and . . .
the mother would be better able to secure
employment"); Wakefield, 67 Mass. App. Ct. at 774, 777-778
(removal allowed where mother, child's primary caretaker, sought
to return to home country where she "would enjoy greater family
support," and "would be working at an increased salary" in
position that would enable her "to work from home and spend more
time with her daughter"). 20 Accordingly, we affirm the judgment
of the trial judge in its entirety.
So ordered.
20
In contrast, these are not the circumstances in which
removal has been deemed not to be in a child's best interest.
See, e.g., Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 449,
451, 453 (2006) (affirming denial of removal by mother, who was
custodial parent, where move would diminish child and mother's
financial security, "would take [mother] away from her support
network of friends and family," and would require child to take
"frequent 'red-eye' flights across the country, including trips
by himself with layovers").
GANTS, C.J. (concurring, with whom Gaziano, J., joins). I
agree with the court that the judge here did not abuse her
discretion in concluding that removal from the Commonwealth is
in the child's best interests. I write separately only because
I disagree with the artificially binary decision-making
framework that has emerged from Yannas v. Frondistou-Yannas, 395
Mass. 704 (1985), and Mason v. Coleman, 447 Mass. 177 (2006),
and that the court applies today. Under that framework, the
removal analysis depends on whether the parent seeking to remove
the child has "sole physical custody" of the child, in which
case the judge must follow the "real advantage" analysis
in Yannas, or whether the parents share "joint physical custody"
of the child, in which case the judge must follow the "best
interests" analysis in Mason. I believe that the ultimate
"touchstone" in all removal cases, whether one parent has sole
physical custody or both parents share physical custody, is
always the best interests of the child. Smith v. McDonald, 458
Mass. 540, 544 (2010), quoting Custody of Kali, 439 Mass. 834,
840 (2003). I would therefore discard the Yannas-Mason
framework in favor of a single, uniform standard -- the best
interests of the child -- to be applied to all removal cases,
recognizing that the "real advantage" to the parent seeking
removal is a factor that must be considered under that standard.
2
The current binary decision-making framework has two
substantial flaws. First, it places too much weight on the
threshold determination as to whether one parent has "sole
physical custody," meaning that "[the] child . . . reside[s]
with and [is] under the supervision of one parent, subject to
reasonable visitation by the other parent," G. L. c. 208, § 31;
or both parents have "shared physical custody," meaning that
"[the] child . . . ha[s] periods of residing with and being
under the supervision of each parent." Id. This is a false
dichotomy, which fails to reflect the many variations on the
theme of sole and joint physical custody that often play out in
our increasingly complicated lives. In many cases, as here,
custody is shared, but not equally, and the percentage of time a
child spends with a parent may vary over time, depending on a
parent's work and travel obligations, or perhaps on a parent's
(or grandparent's) health.
We have seen judges struggle to fit cases into one of these
two categories. See, e.g., Prenaveau v. Prenaveau, 75 Mass.
App. Ct. 131, 140 (2009) ("While the co-parenting arrangement
. . . does not fit neatly into the traditional taxonomy, it can
perhaps best be understood as an attempt at approximating joint
custody . . . "). Recognizing the inherent inflexibility of
these two categories, our appellate courts have held that
whether a physical custody arrangement is "sole" or "joint"
3
should be determined with respect to "the functional
responsibilities and involvement of each parent." Altomare
v. Altomare, 77 Mass. App. Ct. 601, 605 (2010). This is a wise
approach. But any such nuanced, functional assessment is
severely limited by the strict binary framework the court
applies today. Ultimately, a judge will have to categorize a
physical custody arrangement as either "sole" or "joint," which
will in turn mandate the analysis the judge must follow.
The inflexibility of the Yannas-Mason framework is on full
display in this case where, as in many cases, the parenting
arrangement resists easy classification. Unlike Yannas, this is
not a case where one parent has sole physical custody. Yannas,
395 Mass. at 705, 706 (mother awarded sole physical custody).
Nor is it a case like Mason, where the parents share physical
custody equally. Mason, 447 Mass. at 179 (parents divided
physical custody "approximately equally" pursuant to
stipulation). Here, pursuant to the parties' stipulated
parenting plan, the child spends approximately sixty per cent of
her time with her mother and forty per cent with her father. In
practice, the percentage of time spent with the mother was
higher because, although the father has a loving relationship
with the child, he travels frequently. Based on these and other
facts, the judge decided that the mother is the child's primary
caregiver and analyzed it -- as she is required to do under the
4
court's binary framework -- as if it were a straightforward,
uncomplicated case where one parent does in fact have sole
physical custody.
The second flaw with the Yannas-Mason framework is that it
invites the misperception that the best interests of the child
is "the touchstone inquiry" only where there is joint physical
custody, Smith, 458 Mass. at 544, quoting Custody of Kali, 439
Mass. at 840, and that the "real advantage" to the parent
seeking removal is the more important consideration where one
parent has sole physical custody. In endorsing this framework,
the court has lost sight of the guiding principles behind our
two decisions in Yannas and Mason.
In Yannas, 395 Mass. at 711, we emphasized that "the
central question" in removal cases is "how [the] 'best
interests' [of the child] are to be determined." We applied the
"real advantage" standard only because we believed that it was
the most accurate reflection of the child's best interests under
those circumstances; we recognized that, where one parent has
sole physical custody, "the best interests of [the] child are so
interwoven with the well-being of the custodial parent, [that]
the determination of the child's best interest requires that the
interests of the custodial parent be taken into account." Id.
at 710, quoting Cooper v. Cooper, 99 N.J. 42, 54 (1984).
5
In Mason, 447 Mass. at 184, we took a different approach to
our determination of the child's best interests, emphasizing
that "[w]here physical custody is shared, the 'best interest'
calculus pertaining to removal is appreciably different,"
because the child's best interests are "[n]o longer . . . so
tightly interwoven" with the interests of one parent over
another.
Together, these two decisions reiterate what judges have
always known: that when determining the best interests of the
child, facts matter. "The 'best interest' calculus" is a
dynamic one that must be adapted to each case, assigning
different weight to different factors depending on the facts.
In removal cases, whether the parent seeking removal can show a
"real advantage" from the move is only one among many factors
contributing to the child's best interest; it is often
important, but may not be in every case. Yannas and Mason do
not announce separate standards but are merely applications of
the same standard, which should in every case guide our
analysis: whether removal is in the best interests of the
child. See Prenaveau, 75 Mass. App. Ct. at 139 ("[Yannas
and Mason] do not articulate distinctly different tests. In
each case, one question was preeminent: is removal in the best
interests of the children?").
6
In Yannas, 395 Mass. at 711, we recognized that removal
cases "present difficult choices." Faced with these choices, we
declined to "apply a fixed but arbitrary rule," preferring
instead to resolve the issues "on a case by case basis." Id.It is ironic that, today, the court invokes our decision
in Yannas to preserve a fixed and inflexible framework for
resolving these difficult cases.
I emphasize that my disagreement with the court's approach
does not mean I disagree with the outcome of this case. Because
the second step of the Yannas analysis requires a determination
of the child's best interests, a judge is usually able --
whether under Yannas or Mason -- to reach the decision that best
serves the interests of the child. See, e.g., Dickenson
v. Cogswell, 66 Mass. App. Ct. 442, 449, 453 (2006) (analysis
under second step of Yannas "independently establishe[d] that
removal was not justified," because not in best interests of
child). See also Yannas, 395 Mass. at 711 ("That the move is in
the best interests of the custodial parent does not mean that it
is automatically in the best interests of the child"). Indeed,
that is exactly what happened here. Having applied the "real
advantage" standard, the judge ultimately resolved the case
under what I believe is the proper analysis, finding that
removal was in the child's best interests. But judges should
7
not be required to engage in analytical gymnastics in order to
arrive at the best outcome.
Nor can we ignore the risk that this formalistic approach
will, in some cases, derail the proper analysis. How a case is
categorized under the Yannas-Mason framework can have serious
consequences for the parties involved, in that it alters the
balance that must be struck between the interests of each
parent. Under Yannas, it is the parent who seeks removal whose
interests are accorded greater weight. Prenaveau, 75 Mass. App.
Ct. at 139. But under Mason, it is the opposite: the parent
who opposes removal enjoys the "more protective"
standard. Smith, 458 Mass. at 547 n.14. Thus, whether the
child can be removed may very well hinge on which side of an
unrealistic binary -- "sole physical custody" or "joint physical
custody" -- the case happens to fall.
To abandon the Yannas-Mason framework would not mean that
we are abdicating our responsibility to provide appellate
guidance to judges who must make difficult removal decisions.
In Yannas, apart from the "real advantage" to the parent seeking
removal, we identified several other relevant factors that must
be considered, including "whether the quality of the child's
life may be improved by the change . . . , the possible adverse
effect of the elimination or curtailment of the child's
association with the noncustodial parent, and the extent to
8
which moving or not moving will affect the emotional, physical,
or developmental needs of the child." Yannas, 395 Mass. at 711.
How these factors are to be balanced will depend on the facts of
each case.
Where the form of the common law no longer serves its
function, it is this court's responsibility to change it. This
case well illustrates the limits of the Yannas-Mason framework;
we should not allow it to linger any longer. It is time that we
abandon it and resolve all removal cases under the same
standard: whether removal is in the best interests of the
child. As part of that "best interests" determination, a judge
should be permitted to consider the "real advantage" of the move
to the parent seeking removal of the child, regardless of
whether that parent has sole or joint physical custody, and
accord that factor as much weight as is warranted by the
specific facts of the case. As the court acknowledges, the
determination whether removal is in the child's best interests
is a "classic example of a discretionary decision," in which
"much must be left to the trial judge's experience and judgment"
(citation omitted). Adoption of a Minor (No. 2), 367 Mass. 684,
688 (1975). But in its strict adherence to the Yannas-Mason
framework, the court chooses to constrain that equitable
discretion, and in a way that interferes with, rather than
assists, sound decision-making.