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 Home > Summary Index > Divorce

 

NISSENBAUM’S STANDARD SET OF

 SUMMARIES OF LAW - DIVORCE

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VIII. Removal of the Children From the Commonwealth.

8.1 A minor child of divorced parents "shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders." G. L. c. 208, 30.

8.2 The original judgment awarded sole physical custody to the mother, and "must be presumed to have been right." Hersey v. Hersey, 271 Mass. 545, 554 (1930). See Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).

8.3 Efforts by a custodial parent to relocate a child out of the Commonwealth often give rise to a claim for custody by the parent not seeking the move. See, e.g., Hersey v. Hersey, 271 Mass. 545 (1930); Usen v. Usen, 359 Mass. 453 (1971); Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985); Williams v. Pitney, 409 Mass. 449 (1991); Haas v. Puchalski, 9 Mass. App. Ct. 555 (1980); Signorelli v. Albano, 21 Mass. App. Ct. 939 (1985).

8.4 A G. L. c. 208, 28 "request for modification of custody is distinct from a [G. L. c. 208, 30] request to relocate and must be based on a material and substantial change in circumstances other than the move, is consistent with these decisions and with G. L. c. 208, 28." Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001)

8.5 Unless the parties agree to the temporary change in physical custody, a judicially imposed change in custody is governed by G. L. c. 208, 28A. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.6 When a request for removal is made, the "appropriate course is to conduct a hearing on the non-custodial parent's request for temporary order" and, absent a demonstration of the requisite "injury, harm or damage," to make no change in custody. An evidentiary hearing on the merits of the claims for custody and removal should then have been scheduled on an expedited basis. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.7 A judgment modifying custody must be based on findings grounded in the evidence that, since the date of the prior custody order, there has been a change in circumstances "of sufficient magnitude to satisfy the governing principle by which the court must be guided in these cases, namely, whether the transfer of custody will be conducive to the welfare of the [child]." Fuller v. Fuller, 2 Mass. App. Ct. 372, 376 (1974).

8.8 "The court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children". The custody claim must be considered in light of established principles governing custody determinations. See, e.g., Hersey v. Hersey, 271 Mass. 545, 554 (1930); Grandell v. Short, 317 Mass. 605, 607 (1945); Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-112 (1985); Haas v. Puchalski, 9 Mass. App. Ct. 555, 557 (1980); Delmolino v. Nance, 14 Mass. App. Ct. 209, 211 (1982).

8.9 "The uprooting of a child . . . should be done only for compelling reasons." Tolos v. Tolos, 11 Mass. App. Ct. 708, 710-711 (1981) (citation omitted).

8.10 A parent who works outside the home, even one with a "hectic" schedule, may still be the appropriate primary caretaker and that, standing alone, such employment would not warrant a custody modification. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.11 Changes occurring in a child’s living arrangements because of a temporary order that was not supported by findings of substantial and material change in circumstances, let alone the requisite findings of "injury, harm or damage," G. L. c. 208, 28A, cannot form the basis upon which a final judgment modifying custody is granted. Were we to decide otherwise, tactical delays or overcrowded court dockets could come to dictate the result in every custody modification proceeding, and render meaningless any eventual hearing on the merits. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

Removal from the Commonwealth.

8.1 "The best interests of the children for purposes of deciding whether to permit removal are also interwoven with the well being of the custodial parent, and the determination, therefore, requires that the interests of the mother also be taken into account." Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981).

8.2 "The words "upon cause shown" in the controlling statute, G.L. c. 208, Section 30 ... have been interpreted to permit removal if in the best interests of the child." Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981) citing Rubin v. Rubin, 370 Mass. 857 (1976).

8.3 A request for removal is governed by G. L. c. 208, 30 as that statute has been interpreted by Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985) and Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981).

8.4 "[I]n determining whether removal should be allowed [the factors to be weighed include]:

"the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children;...the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the non-custodial parent, and whether the custodial parent is likely to comply with substitute visitation orders... which can provide an adequate basis for preserving and fostering the parental relationship with the non-custodial parent if removal is allowed. The court should not insist that the advantages of the move be sacrificed...solely to maintain weekly visitation by the father. Hale at 818 (citing D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 206-207, aff'd per curiam, 144 N.J. Super. 352 (1976).

"[T]he correct legal standard in determining [issues of removal is] (sic) the "real advantage" test [which] is grounded upon the "realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce...[and] that the child's quality of life and style of life are provided by the custodial parent."

Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985), citing Cooper v. Cooper, 99 N.J. 42, 53 (1984).

8.5 "Although the best interests of the children always remain the paramount concern, "[b]ecause 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 parent be taken into account." Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985), citing Cooper v. Cooper, 99 N.J. 42, 54 (1984).

8.6 A parent's request to relocate with a child from the Commonwealth must be "grounded on the 'realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce . . .[and] that the child's quality of life and style of life are provided by the custodial parent.' Although the best interests of the children always remain the paramount concern, '[b]ecause 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 custodial parent be taken into account." Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985), quoting from Cooper v. Cooper, 99 N.J. 42, 53-54 (1984). See Hale v. Hale, 12 Mass. App. Ct. 812, 815-818 (1981) quoting from D'Onofrio v. D'Onofrio, 144 N.J. Super. 200, 204-206, aff'd per curiam, 144 N.J. Super. 352 (1976) (a court must consider the advantages of the move in terms of whether the move is likely to improve the general quality of life for both the custodial parent and the child, the "new family unit").

Real Advantage / Motivation Tests.

8.7 "[T]he first consideration is whether there is good reason for the move, a "real advantage." If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985).

8.8 Real advantage is determined by assessing "the soundness for the reason for moving and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation . . . ." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985)(move to Greece where mother found new job and would be geographically close to her relatives "would be to [her] advantage"); Williams v. Pitney, 409 Mass. at 455 (that mother found employment and would live near her relatives in California were "good and sincere reasons"); Signorelli v. Albano, 21 Mass. App. Ct. at 940 (that mother had remarried, given birth to a child of the new marriage, and new husband obtained higher paying job in New Jersey were "good and sincere reasons" for move); Vertrees v. Vertrees, 24 Mass. App. Ct. 918, 919 (1987) (that mother wanted to move to Illinois because her relatives there would provide emotional support (i.e. supportive family) and social interaction and where she made reasonable plans for economic improvement were considered "good and sincere reason" for wanted to remove the child).

8.9 "The interest of the custodial parent in moving must also be assessed. The relative advantages to the custodial parent from the move, the soundness of the reason for moving, and the presence or absence of a motive to deprive the non-custodial parent of reasonable visitation are likely to be relevant considerations." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).

8.10 Denial of a request for removal should be accompanied by evidence in the record to support a finding that the custodial parent was motivated to deprive the father of reasonable visitation. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

Interests of the child.

8.11 "An evaluation of the best interests of the child requires attention to 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 non-custodial parent, and the extent to which moving or not moving will affect the emotional, physical or developmental needs of the child." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).

(a) Improvement in child's quality of life.

8.12 The probate judge must consider "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) . . . ." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985).

8.13 There should be findings reflecting consideration of "the relationship of the [custodial parent] to the [child]," Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981), or "any improvement flowing from an improvement in the quality of the custodial parent's life." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985).

8.14 It is not the custodial parent’s burden to provide evidence of improvement. Rather, the factors must be considered collectively. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.15 "The judicial safeguard of [all parties'] interests lies in careful and clear fact-finding and not in imposing heightened burdens of proof." Yannas v. Frondistou-Yannas, 395 Mass. 704, 712 (1985).

(b) Effect of move on child's association with noncustodial parent.

8.16 There should be findings reflecting specific consideration of the effect on the child of a possible "curtailment of the child's association with the noncustodial parent," in the event of relocation. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985).

(c) Effect of move on child's emotional, physical, or developmental needs.

8.17 There should be findings reflecting consideration of "the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). Hale v. Hale, 12 Mass. App. Ct. 812, 817-820 (1981).

8.18 A child may have important relationships extending beyond those of his immediate family members that deserve protection, Youmans v. Ramos, 429 Mass. 774, 782-784 (1999); E.N.O. v. L.L.M, 429 Mass. 824, 828-829 (1999), and, if so, there must be findings reflecting a consideration whether those relationships are so important to the child’s emotional well-being that they deserve primacy over his relationship with his custodial parent, who was (up to a temporary change, if any, in primary physical custody) the primary custodial parent throughout the child’s life. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

Interests of custodial parent.

8.19 There should be findings reflecting a consideration of the interests of the custodial parent in maintaining both her close relationship with the child, and in living with her new husband in the city in which he and the mother both work. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.20 There should be findings reflecting a consideration of the impact which a denial of the custodial parent’s request to relocate, and the temporary order changing custody because she made that request, had on the mother and her choice of living with her husband and suffering separation from her child, or living with her child and suffering separation from her husband. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.21 There should be findings reflecting a consideration of the "weight to the quality of life of the custodial parent by reason of the separations enforced on her," Signorelli v. Albano, 21 Mass. App. Ct. at 940, as a consequence of her decisions and the court’s temporary order changing custody. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.22 "The new family unit consists only of the children and the custodial parent, and what is advantageous to that unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interests of the children. It is in the context of what is best for that family unit that the precise nature and terms of visitation and changes in visitation by the noncustodial parent must be considered." Hale v. Hale, 12 Mass. App. Ct. Ct. 812, 818 (1981) (citations omitted), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

Interests of noncustodial parent.

8.23 The court must consider "the possible adverse effect of the elimination or curtailment of the child's association with the noncustodial parent." Yannas v. Frondistou-Yannas , 395 Mass. 704, 711 (1985).

8.24 "Finally, the interests of the non-custodial parent must be considered. If that parent is unfit or has not exercised his or her rights of visitation, the judge's problem is less difficult than in the case of a diligent non-custodial parent...The fact that visitation by the non-custodial parent will be changed to his or her disadvantage cannot be controlling." Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). See, Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002) (mother’s removal petition denied as, inter alia, she was unable to put child’s needs ahead of her own).

8.25 The test is not whether there is no impact on the non-custodial's association, but whether reasonable "alternative visitation arrangements" might achieve ongoing and meaningful contact appropriate to the circumstances. Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.26 "From what we can ascertain, the judge recognized the importance of the 'frequent and continuing contact' of the child with both its parents . . . and entered [her] judgment prohibiting removal on the basis that the move would make visitation more difficult. We consider that factor not in itself conclusive." Hale v. Hale, 12 Mass. App. Ct. Ct. 812, 815 (1981) (citations omitted), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001). (Emphasis supplied).

Standard of Review on Appeal

8.27 Although great deference is accorded a probate judge's custody determination, "[t]here are limits to appellate deference," as when the judge's action is not supported by the findings, or the findings are not supported by the evidence, as here. Freedman v. Freedman, 49 Mass. App. Ct. 519, 521 (2000), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

8.28 Because of what the record discloses, "[a] remand for findings of fact to support the judge's order is unnecessary, because the evidence, weighed under the relevant factors . . . convincingly establishes that the plaintiff's request should have been allowed." Gridley v. Beausoleil, 16 Mass. App. Ct. 1005, 1006-1007 (1983), cited with approval in Rosenthal v. Maney, 51 Mass. App. Ct. 257 (2001).

 

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