by Laurie Israel, Esq.
In September 2010, the Massachusetts Appeals Court issued two new decisions relating to “removal” of children by a custodial parent out of state or to a different part of the state, Katzman v. Healy (No. 09-P-2341), and Altomare v. Altomare, (No. 09-P-585).
Katzman v. Healy
Katzman v. Healy (No. 09-P-2341) was an appeal by the former wife, Anna Katzman, who had sole physical custody of the two children, to move with the children out-of-state. The former husband, Timothy Healy, had already remarried and had a child of the second marriage. Katzman met a man who lived and worked in the New York metropolitan area, to whom she became engaged and married prior to the trial, and a baby was expected. She appealed a probate court decision denial of her relocating custody of the children of the marriage to New York or Connecticut.
The lower court had changed the custody to joint, based on time spent with the children. The appeals court disagreed with the analysis of time spent, as it only tabulated the children’s awake time with parents, and not the backup time of a custodial parent – i.e., when the children were sick or needed a parent’s assistance at unexpected times, which role was the mother’s. The court found that the grounds of modification of parenting time were not in the findings of the lower court and reversed on this issue.
With respect to the removal issue, the Appeals court in Katzman v. Healy noted the Yannas test applies to cases where one party has physical custody. Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985), and Mason v. Coleman, 447 Mass. 177 (2006) applies in cases of joint physical custody.
If there is joint custody of the children, under Mason, it is presumed that the children are fully integrated into both households and consider that they have two homes. Therefore, the children’s relationships with both parents need to be protected, insofar as possible. In joint custody cases, “judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished … “. Mason v. Coleman, 447 Mass. at 184-185.
The Yannas test, applicable where one parent has primary custody, provides a two-part test. First, there must be a good reason for the move, i.e., a “real advantage” to the custodial parent moving, such as a necessary job change that would greatly improve the custodial’s parent ability to support the children. That was satisfied in the Katzman case. The former Wife wanted to move to be with her new husband (the father of the new child), and was not motivated out of the intention to deprive the father of his relationship with his children. The new husband could not feasibly move his employment to Massachusetts.
Secondly, according to Yannas, the move out of state must be in the best interests of the children. In order to determine this, there must be a balancing of interests – the advantages and disadvantages of moving or not moving not only to the children, to the parent who has sole physical custody. This is a significant factor in the “best interests of the children” analysis, because the best interests of the children are so interwoven with the well-being of the custodial parent, that the determination requires that the interests of the custodial parent be taken into account. Yannas, supra, at 710.
The Appeals Court said if it is found that her new husband cannot relocate his employment to Massachusetts, fact finding needs to be done as to how the mother’s “unhappiness from raising her children (including the newborn child of the new marriage) in Massachusetts while living separated from her husband would affect the children.” Katzman was remanded to the lower court for proper findings on the removal issue.
Altomare v. Altomare
Another child custody removal case decided by the Appeals Court in September 2010 was Altomare v. Altomare, No. 09-P-858 . This case involved a former wife with whom the three children (ages 11-18) made their primary home who asked for removal with the children from West Boylston to Scituate, a town in Massachusetts, 75 minutes away by car.
The Appeals Court applied the Yannas test. Under the second prong, the benefit to the children flowing from any improvement in the quality of the custodial parent’s life, must be weighed against the possible adverse effect of elimination or reduction of the children’s contacts with the noncustodial parent, and how this will affect the emotional, physical, or developmental needs of the children. Pizzino v. Miller, 67 Mass. App.Ct. 875, 870-871 (2006), quoting from Yannas, supra, at 711.
In Altomare, the Wife who was divorced after 20 years of marriage found it difficult to remain in the small town where she would often run into the woman with whom the husband had been having a romantic relationship that broke up the marriage and which was the Husband’s home town. The Wife had a support network in Scituate that she felt could help restore her emotional health. She wished a fresh start, and felt the mood change she expected to have would have a huge positive impact on the children. The probate court denied her request to move.
The Appeals Court believed that the probate court did not adequately assess the second prong of Yannas, and remanded for a determination of the best interests of the children. In particular, the judge was instructed to determine the extent to which the wife’s unhappiness in West Boylston affects her children and the practical effects of the move where she expected to have a better quality of life, therefore benefitting the children.
Copyright ©2010 Laurie Israel.
Laurie Israel is founder of Israel, Van Kooy & Days, LLC, a law firm located in Brookline, Massachusetts. She combines a family law practice with estate planning, tax, mediation and collaborative law. Laurie is currently on the board of directors of the Massachusetts Council on Family Mediation and the Massachusetts Collaborative Law Council. Her writings include articles on mediation to stay married (marital mediation), collaborative practice, marriage, divorce, and pre- and post-nuptial agreements. She is a frequent presenter at professional conferences.