DATES: January 18, 2017, Entered
KEYWORD: Child Custody, Unmarried Parents, Primary physical custody, removal, custodial parent, real advantage, best interests of child, M.L.G. Chapter 208, section 30, Yannas v. Frondistou-Yannas test, good reason to move, improvement in quality of custodial parent’s life.
RYAN JORDAN vs. KAYE MULVEY.
APPEALS COURT OF MASSACHUSETTS
91 Mass. App. Ct. 1102; 2017 Mass. App. Unpub. LEXIS 65
NOTICE: SUMMARY DECISIONS ISSUED BY THE APPEALS COURT PURSUANT TO ITS RULE 1:28, AS AMENDED BY 73 MASS. APP. CT. 1001 (2009), ARE PRIMARILY DIRECTED TO THE PARTIES AND, THEREFORE, MAY NOT FULLY ADDRESS THE FACTS OF THE CASE OR THE PANEL’S DECISIONAL RATIONALE. MOREOVER, SUCH DECISIONS ARE NOT CIRCULATED TO THE ENTIRE COURT AND, THEREFORE, REPRESENT ONLY THE VIEWS OF THE PANEL THAT DECIDED THE CASE. A SUMMARY DECISION PURSUANT TO RULE 1:28 ISSUED AFTER FEBRUARY 25, 2008, MAY BE CITED FOR ITS PERSUASIVE VALUE BUT, BECAUSE OF THE LIMITATIONS NOTED ABOVE, NOT AS BINDING PRECEDENT. SEE CHACE V. CURRAN, 71 MASS. APP. CT. 258, 260 N.4, 881 N.E.2d 792 (2008).
PUBLISHED IN TABLE FORMAT IN THE MASSACHUSETTS APPEALS COURT REPORTS.
JUDGES: Milkey, Massing & Sacks, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Kaye Mulvey (mother), appeals from the judgment on her counterclaim denying her request to remove her minor child from Massachusetts to Minnesota. Because the Probate and Family Court judge’s findings do not demonstrate consideration of all the relevant factors in determining whether removal was appropriate, we vacate portions of the judgment and remand for further proceedings.
Background. The mother and the plaintiff, Ryan Jordan (father), are the parents of a son who was born in March, 2014. The father filed a complaint for custody and parenting time. The mother counterclaimed, seeking permission to remove the child to Minnesota.
After a three-day trial, the judge found that the parties met in June, 2013, discovered that the mother was pregnant in July, and ended their relationship in November. They attempted to “rekindle” their relationship when the child was born in March, 2014, but broke up for good that summer. They never married. The judge also found that the mother had many family members in Chaska, Minnesota (and others nearby in Minneapolis), and that she and the child had a place to live there. The judge concluded that the mother had legitimate reasons for wanting to move, and that “there may . . . be a real advantage to Mother to relocate to Minnesota.”
The judge observed, however, “[T]hat is not the end of the inquiry.” Crediting the testimony of Dr. Sharon Gordetsky, the father’s expert witness on “child development, attachment and bonding,” the judge found that “if the attachment between the Father and child was disrupted, there could be dire consequences in the child’s future development; that the child would be at risk of developing depression and anxiety” (emphasis supplied). The judge also credited Dr. Gordetsky’s testimony that “it is important for the father/child contact to be in-person and not merely by Facetime or Skype.”1 Because the move would interrupt the child’s “significant bond and attachment” with the father, the judge concluded that she could not “find that the best interests of the minor child will be served by allowing the requested removal.”
1 The judge found that the mother’s expert also acknowledged that “it is important to a good outcome for the child to have a secure attachment with his primary caregiver and an involved father.”
Discussion. “A parent, against the objection of the other parent, may remove a minor child from the Commonwealth ‘upon cause shown.'” Rosenwasser v. Rosenwasser, 89 Mass. App. Ct. 577, 580, 52 N.E.3d 1075 (2016), quoting from G. L. c. 208, § 30, as amended through St. 1986, c. 462, § 9. “The words ‘upon cause shown’ mean only that removal must be in the best interests of the child.” Yannas v. Frondistou-Yannas, 395 Mass. 704, 711, 481 N.E.2d 1153 (1985) (citation omitted). This determination is two-pronged. “[T]he first consideration is whether there is a good reason for the move, a ‘real advantage.'” Ibid. “Once the custodial parent has ‘establishe[d] a good, sincere reason for wanting to remove to another jurisdiction,’ the judge must then consider whether the move is in the child’s best interests.” Rosenwasser, supra at 582, quoting from Yannas, supra. The factors used to determine a child’s best interests, first set out in Yannas, are
“(1) whether the quality of the [child’s] li[fe] will be improved, including any improvement that ‘may flow from an improvement in the quality of the custodial parent’s life’; (2) any possible ‘adverse effect of the elimination or curtailment of the [child’s] association with the noncustodial parent’; (3) ‘the extent to which moving or not moving will affect the [child’s] emotional, physical, or developmental needs’; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent.”
Murray v. Super, 87 Mass. App. Ct. 146, 150, 26 N.E.3d 1116 (2015), quoting from Dickenson v. Cogswell, 66
Mass. App. Ct. 442, 447, 848 N.E.2d 800 (2006). “[N]one of the[se] relevant factors [is] controlling in deciding the best interests of the child, but rather they must be considered collectively.” Yannas, supra at 711-712.2
2 The Yannas test applies “whether the parents are separated, divorced or were never married.” Smith v. McDonald, 458 Mass. 540, 547, 941 N.E.2d 1 (2010).
Because the finding of a real advantage to the mother is uncontested, we turn to the judge’s consideration of the best interests of the child. “Absent clear error, we review the judge’s determination of the child’s best interests only for abuse of discretion.” Smith v. McDonald, 458 Mass. 540, 547, 941 N.E.2d 1 (2010).
The judge’s written findings on the best interests question do not adequately reflect consideration of all of the Yannas factors. In particular, the judge unduly emphasized the “dire consequences in the child’s future development” if the attachment between the father and child were disrupted, while giving no consideration to whether the move to Minnesota would provide a beneficial change in the child’s quality of life, “including any improvement flowing from an improvement in the quality of the custodial parent’s life.” Dickenson, supra.
To be sure, the experts’ testimony supported the judge’s findings regarding the effect of removal on the father-son relationship: the possibility of “dire consequences” for the child’s development, the importance of in-person contact between the father and the child (not contact through Skype, for example), and that “no parenting plan could ensure the continued evolvement of the father/child attachment.” However, the conclusive weight the judge attached to this single factor is untenable. Nothing in the record indicates the likelihood that these “dire consequences” would occur. Dr. Gordetsky testified that the child would be “at risk,” but did not quantify whether such risk was slight or grave. A court must consider all of the Yannas factors and cannot exclusively focus on the effects on the father-child relationship in the event of removal. “[D]isruption in visitation with the noncustodial parent cannot be controlling or no removal petition would ever be allowed.” Cartledge v. Evans, 67 Mass. App. Ct. 577, 581, 855 N.E.2d 429 (2006).
While the judge overemphasized the father-child relationship in her findings, she made almost no mention of the potential benefits to the child if removal were allowed. Even the father’s expert acknowledged the need for a happy primary caregiver (here, the mother), as well as the benefit of having family support in raising a child. The judge should have considered this testimony, the testimony of the mother, and the testimony of the mother’s expert (whom the judge found qualified and credible) in her findings because “‘the best interests of a child are . . . interwoven with the well-being of the custodial parent,’ and . . . moving may afford benefits to the custodial parent that, in turn, benefit the child.” Smith, 458 Mass. at 547, quoting from Yannas, 395 Mass. at 710.
“Every person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding.” Yannas, supra at 712. Depriving the child of the benefits that he would experience as the result of the move by placing disproportionate emphasis on a risk of unidentified dimension from the curtailment of the child’s association with the father, amounted to an abuse of discretion. See Rosenwasser, 89 Mass. App. Ct. at 588.3