Massachusetts divorce lawyer Nicole K. Levy reviews Massachusetts appellate decisions from 2015 and 2016 affecting the removal / relocation of children from the Commonwealth.
As we reviewed in last week’s blog on removal, the overarching concern when determining the appropriate place for a child to reside is the traditional “best interest of the child” standard. This test still prevails in cases of removal, despite the attention paid to the parallel “real advantage” test. As recent cases make clear, when courts are deciding if a parent can permanently move a child out of Massachusetts, things can get complicated fast.
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As discussed last week, the “real advantage” test goes hand-in-hand with the “best interest of the child” standard in removal cases. The two-prong test that originated in Yannas v. Frondistou-Yannas applies when a parent with primary physical custody seeks to permanently remove the child from Massachusetts to a new state or country. Under Yannas, the judge must first determine whether the move creates a “real advantage” for the parent requesting relocation, on the theory that any benefit enjoyed by the moving parent will be (theoretically) passed onto the child. In Yannas, the Supreme Judicial Court explained the “real advantage” test as follows:
[T]he `real advantage’ test is 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 interests of the custodial parent be taken in account.’
Exactly how much weight should be accorded to the “interests of the custodial parent” has always been the million dollar question in removal cases. It is important to note that the Courts in Yannas and the cases that followed it acknowledge that a child’s relocation from Massachusetts will often have a negative impact on the child’s relationship with the parent who stays behind in Massachusetts. The decisions acknowledge that this is simply the nature of the beast in removal cases, and have repeatedly make the point that if judges determined every requested move based on the impact on the other parent, then no removal request would ever be allowed. That said, the disruption a move will cause to the parenting time of the non-custodial parent is always major factor in every removal case. Like the positive impact of the “real advantage” for the custodial parent, the case law does not define how much weight a judge should assign to the negative disruption suffered by the non-custodial parent. We only know that “disruption” is an important consideration in every case.
In any event, a probate court judge determining relocation must examine prior custody and parenting orders (or, if none exist, the historical relationship between the child and non-custodial parent) and try to weigh the impact of the prospective move on the parent-child bond. A judge will examine what kind of parenting plan could be established after a move, including what steps can be taken to minimize the negative impact of the move on the parent-child relationship. (The judge will also examine whether the requesting parent’s move is motivated by a desire to deprive the other parent of time with the child.) Like the “real advantage” prong of the test, each of these considerations is important, but none is determinative. Indeed, the one thing we can say for sure about removal cases in Massachusetts is that no single factor is determinative in the court’s analysis.
Several Massachusetts appellate opinions entered in 2015 and 2016 that illustrate the complex challenges faced by parties, lawyers, and probate and family court judges deciding removal cases. These decisions include:
- Murray v. Super (2015) – As noted last week, Murray illustrates that even when a parent shows there is a “real advantage” to the requested move, the probate court may reject the move if the impact on the children is too severe – or if the moving parent fails to seriously consider the negative impact on the relationship between the children and other parent by formulating a sincere plan to maximize parenting time and contact following the move. In Murray, the mother requesting the move showed a real advantage of moving to California to live with her new husband, but was unwilling or unable to seriously consider the negative impact the move would have on the father’s relationship with the children. The mother’s failure to suggest a meaningful parenting plan between the children and the father following the move proved to be her undoing. (Her lack of insight into the disruption a move would cause to the teenage children’s social and educational lives was also a factor.)
- Schechter v. Schechter (2015) – In Schechter, the Appeals Court found that the mother met her burden for removing the children to New York, but remanded the case for further trial because the probate court judge’s order was too broad, where the order effectively allowed the mother to relocate at any time in the future – to any location in the future. The Appeals Court noted that the “real advantage” to the mother arose out of a move to New York in the near future, and that an order permitting the mother to move elsewhere at some future date was overly broad. No doubt, the father viewed the Appeals Court remand as something of a pyrrhic victory, however, where the Appeals Court affirmed the core decision allowing removal. For the rest of us, Schechter stands for the proposition that removal cases have a limited “shelf life”, and that parties lacking a specific plan detailing exactly when and where they will move may face difficulty at trial.
- English v. English (2016) – In English, the Appeals Court reviewed a probate court judge’s denial of a requested move to Utah by a mother who shared legal and physical custody of the kids with her former husband. The Appeals Court noted that in cases involving shared physical custody, the “real advantage” test under Yannas does not apply. The Court affirmed the probate court’s dismissal of the mother’s request despite the absence of a “real advantage” analysis in the judge’s findings. One take away from English is clear: removal is more difficult when both parties share equal or nearly equal parenting time. However, the case does not address the the single biggest question posed in all removal cases: how important is the “real advantage” test relative to the overlapping “best interest of the child” test? In other words: did the mother in English actually lose anything when the probate court judge did not perform the “real advantage” analysis? Massachusetts appellate courts have avoided assigning a clear weight to the “real advantage” test, leaving attorneys and probate court judges struggling to understand which evidence matters most in removal cases.
- Dasilva v. Dasilva (2015) – In Dasilva, we see that although passing the “real advantage” test does not guarantee a removal will be allowed, failing the “real advantage” test pretty much guarantees the request will be denied. In Dasilva, the mother seeking a move to North Carolina was denied because the Mother identified no specific job prospects in NC, no friends or family in NC (beyond some old college roommates), and no financial or other forms of support that she would receive as a result of the move to NC. Lacking any clear “real advantage” from the move, the mother’s request was denied.
While the legal standard for removal involves showing a real advantage in conjunction with the best interest of the child, the cases demonstrate that judges must also grapple with a variety of fact-specific issues in each case, including prior court orders and judgments, geographic and practical issues connected with a move, such as the nature of the relationships between the moving parent and whichever out-of-state family, friends or employers who make a move seem desirable. These details may seem incidental, but they can end up making or breaking a case to move from Massachusetts.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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