Robert A. Zibbell, Ph.D.

Introduction:

This volume of Massachusetts Family Law cases (primarily domestic relations) is a topically-arranged companion to the original, Casebook of cases from 1965-2020, organized by topic and date of decision (the first few volumes are on the MAGAL website). I refashioned the original Casebook so that professionals in family law forensic practice, including parenting coordinators and guardians ad litem, could more easily find cases pertinent to the issues they would be handling. In the index, I have bold-faced those cases I considered to be the most significant within their subject areas.

For ease of access, the index is hyperlinked to the case summary, so that putting the cursor on the case name in the index and using Ctrl+Click  (or tap) will bring you to the case summary itself, The underscored cases are the more significant ones. In the case summary after the citation, I have added a link to the actual case, so that the same Ctrl+Click will bring you to the complete opinion on MassCases.

A mental health professional’s perspective on how appellate law informs GAL investigations and evaluations.

Preface:

This body of work has been a labor of love for me, as I have tried to put into writing my interest in the intersection of family law and mental health as applied to the assessment of family law disputes. My interest in the relationship between Law and Psychology grew after taking a reading course in 1991 with Dr. Thomas Grisso through the UMASS Department of Psychiatry’s Forensic Psychology (Law and Psychiatry) Program. As a result, it has long been my belief that any evaluator or investigator needs to know the relevant case law and statutes, since those help frame the questions and provide guidance as to how to understand the data those assessments discover. More recently, it is important for parenting coordinators to understand how case law informs that practice. The professional languages of law and mental health are different, so I have tried to provide a map of how case law affects forensic evaluations and investigations. Reading the cases illustrates how each one is fact-specific, but also how the body of common law provides the precedent and legal reasoning that goes into future opinions.

Being in the twilight of what has been an exciting career, it is likely that this compendium will be my final word on this fascinating relationship of family law and mental health. I hope that someone else might be willing to continue the task of following future cases and publishing the application of those lessons to these complex evaluations and investigations. I wish to thank the many legal and mental health professionals who reviewed different cases and have provided positive and corrective feedback. They have included Henry Bock Jr. and Alex Jones in particular, but also for various sections over the years, Beth Aarons, Roberta Benjamin, Susan Elsen, Linda Fidnick, Julie Ginsberg,
Steven Nisenbaum, Rita Pollak, Laurie Raphaelson, and Karen Cohen.  I have felt honored that they were willing to give some of their precious time to doing those reviews. In every case, though, the commentary and opinions expressed are my own.

INDEX OF CASES

CUSTODY AND VISITATION

ROLDE v. ROLDE, 12 Mass. App. Ct. 298 (1981) ………………………………………………………………. 5

BAK v. BAK, 24 Mass. App. Ct. 608 (1987) ……………………………………………………………………….  8

ARDIZONI vs. RAYMOND, 40 Mass. App. Ct. 734 (1996) ……………………………………………………..11

FREEDMAN vs. FREEDMAN, 49 Mass. App. Ct. 519 (2000) …………………………………………………..14

CUSTODY OF ZIA, 50 Mass. App. Ct. 237 (2000) ………………………………………………………………17

CUSTODY OF KALI (best interest) 439 Mass. 834 (2003)……….. ……………………………………………..164

  B.B.V. vs. B.S.V.  68 Mass. App. Ct. 12 (2006)…….………………………………………….…………………..21

  VENTRICE v. VENTRICE 87 Mass. App. Ct. 190 (2015) ………………………………………………………25

  D.B. v. J.B. 97 Mass. App. Ct. 170 (2020) ………………………………………………………………….……27

E.K. v. S.C. Mass. App. Ct. 403 (2020) ………………………………………………………………………… .30

REMOVAL

HALE V. HALE, 12 Mass. App. Ct. 812 (1981) …………………………………………………………………..34

YANNAS v. FRONDISTOU-YANNAS, 395 Mass. 704 (1985) …………………………………………………37

ROSENTHAL v. MANEY, 51 Mass. App. Ct. 257 (2001) ………………………………………………………..41

D.C. vs. J.S., 58 Mass. App. Ct. 351 (2003) ………………………………………………………………………..45

PAMELA DICKENSON vs. W. CLEVELAND COGSWELL  66 Mass. App. Ct. 442 (2006)..….………………48

  JAMES R. MASON vs. BETSY SHANLEY COLEMAN   474 Mass. 177 2006)……………………………..53

JENNIFER M. CARTLEDGE vs. MARK E. EVANS  67 Mass. App. Ct. 577……………………………………55

LAURIE WAKEFIELD vs. JAMES HEGARTY 67 Mass. App, Ct. 772 (2006)………………..………………..60

ANGELA PIZZINO vs. PATRICK MILLER 67 Mass. App. Ct. 865 (2006)………   ……..……………………64

ROSALEE A. ABBOTT v. MICHAEL A. VIRUSSO, JR. 68 Mass. App. Ct. 236 (2007)     ……………………68

CHRISTOPHER PRENAVEAU v. SARAH PRENAVEAU. 202 Mass. App. Ct. 131 (2009)……………………71

PATRICIA M. ALTOMARE v. JOHN N. ALTOMARE. 77 Mass. App. Ct. 601 (2010)…………………………77

SUZANNE HOPE TAMMARO v. KEVIN FRANCIS O’BRIEN. 76 Mass. App. Ct.  254 (2010)………………80

ANNA KATZMAN v. TIMOTHY HEALY. 77 Mass. App. Ct. 589 (2010) ……………………………………..82

1. MICHAEL WOODSIDE v. SHARRY A. WOODSIDE. 79 Mass. App. Ct. 713 (2011)……………………..86

CHRISTOPHER PRENAVEAU V. SARAH PRENAVEAU II. 81 Mass. App. Ct.  479 (2012)…………………88

IDANIA ELVIRA MURPHY v. DENNIS GEORGE MURPHY. 82 Mass. App. Ct.  186 (2012)………………..90

MURRAY v. SUPER   87 Mass. App. Ct. 148 (2015) ……………………………………….……………………93

ROSENWASSER v. ROSENWASSER  89 Mass. App. Ct. 577 (2016)……………………………………….….97

MILLER v. MILLER  478 Mass 642 (2018) ……………………………………………………………………101

E.K. v. S.C. Mass. App. Ct. 403 (2020) See above under custody….……………………………………….30

DOMESTIC VIOLENCE

CUSTODY OF VAUGHN, 422 Mass. 590 (1996………………………………………………………………..107

MAALOOF V. SALIBA, 52 Mass. App. Ct. 547 (2002) ………………………………………………….………111

CARE AND PROTECTION OF LILITH, 61 Mass. App. Ct. 132 (2004)………………………………….….…114

K.A. v. T.R. 86 Mass. App. Ct. 554 (2014) ………………………………………………………….……..……..117

SCHECHTER v. SCHECHTER (and a companion case) 88 Mass. App. Ct. 239 (2015) ………………….…….121

  D.B. v. J.B 97 Mass. App. Ct. 170 (2020) …………………………………………………………………….……27

EXPERT TESTIMONY

COMMONWEALTH V. LANIGAN, 419 Mass. 15 (1994)………………………………………………………124

ADOPTION OF HUGO, 429 Mass. 219 (1998) …………………………………………………………………..126

THERESE CANAVAN’S CASE, 423 Mass. 304 (2000)………………………………………………………….129

RELIGIOUS ISSUES

FELTON V. FELTON, 383 Mass. 232 (1981) …………………………………………………………………….132

KENDALL V. KENDALL, 426 Mass. 238 (1997) ……………………………………………..………………..136

SAGAR V. SAGAR, 57 Mass. App. Ct. 71 (2003)………………………………………………………………..139

JUDICIAL IMMUNITY FOR GALs

LALONDE V. EISSNER, 405 Mass. 207 (1989)……………………………………………………………………142

SARKISIAN V. BENJAMIN, 62 Mass. App. Ct. 741 (2005)…………………………………………………144

HORNIBROOK V. RICHARD AND ANOTHER 488 Mass 74 2021)……………………………………….…..196

PRIVILEGED COMMUNICATION/CONFIDENTIALITY

ADOPTION OF DIANE, 400 Mass. 196 (1987)…………………………………………………………………….147

ADOPTION OF SAUL, 441 Mass.  257 (2004) ……………………………………………………………….…..…150

P.W. v. M.S., 67 Mass. App. Ct. 779 (2006)…………………………………………………………………………..152

GRANDPARENTS’ RIGHTS

JONES V. JONES, 329 Mass. 259 (1965) …………………………………………………………………………….155

BLIXT V. BLIXT, 437 Mass. 649 (2002) ……………………………………………………………………………157

DEARBORN V. DEAUSAULT, 61 Mass. App. Ct. 234 (2004) …………………..……………….………………..159

DEFINITIONS: BEST INTEREST, MODIFICATIONS, CHILDREN’S PREFERENCES

DELMOLINO V. NANCE (modification), 114 Mass. App. Ct. 209 (1982)……………………………………164

ARDIZONI V. RAYMOND (child’s preference), 40 Mass. App. Ct. 734 (1996)………………………………..11

CUSTODY OF KALI (best interest) 439 Mass. 834 (2003)……….. ……………………………………………166

GAL ISSUES

GILMORE V. GILMORE, 369 Mass. 598 (1976)……………………….. …………………………………………….172

KENDALL V. KENDALL, 426 Mass. 238 (1997)………………………. ……………………………………………..136

SARKISIAN V. BENJAMIN,62 Mass. App. Ct. 741 (2005)……….. ……………………………………………144

DE FACTO PARENTING

JONES V. JONES, 329 Mass. 259 (1965)……………………………………………………………………….155

C.C. V. A.B., 406 Mass. 679 (1990)……………………………………………… ……………………………………………175

YOUMANS V. RAMOS, 429 Mass. 774 (1999)……………………………………………………………….177

E.N.O. V. L.M.M., 429 Mass. 824 (1999)…………………………………….. ………………………………………….180

CARE AND PROTECTION OF SHARLENE 445 Mass 756 (2006)………………………………………….183

A.H. v. M.P. 447 Mass 828 (2006)……………………………………………………………………………..186

PARENTING COORDINATION

BOWER v. BOURNAY-BOWER, 469 Mass. 690 (2014)……………………………….……………………193

VENTRICE v. VENTRICE, 87 Mass. App. Ct. 190 (2015) …………………………….………………….……25

LEON v. CORMIER, 91 Mass App. Court 216 (2017) ………………………………………………………………196

HORNIBROOK V. RICHARD AND ANOTHER 488 Mass 74 (2021)………………………………………..198

ABOUT THE AUTHOR…………………………………………………………………………………….……202

CUSTODY AND VISITATION

ALEXANDRA K. ROLDE v. EDWARD J. ROLDE⁶

Massachusetts Appeals Court

12 Mass. App. Ct. 398 (1981) at http://masscases.com/cases/app/12/12massappct398.html

Keywords: Divorce and Separation, Custody of child.

Background: This is a case that is often cited where issues of custody are contested, although there were also financial issues that were litigated. The background involved the marriage of two psychiatrists in May 1966, their separation in December 1977 and their three children (ages 10, 7, and 3 respectively at the time of separation). After separation, Father initially moved to Brookline and then purchased a home in Weston, the same town in which Mother lived. He saw the children on alternating weekends, one midweek overnight a week, every other holiday, and for six weeks during the summer. Following eight days of trial, the major portion of which was devoted to the question of custody, the judge concluded that, even though the wife “may be irrational in perceiving joint custody as a vehicle whereby her husband can continue to impose his will upon her,” in the instant circumstances joint custody would be entirely inappropriate and injurious to the children.  The husband does not claim  that such “irrational” fears of the wife could cause her to become a “non-functional” parent and thus render her unfit.⁷ See Stevens v. Stevens, 337 Mass. at 627-628; McMahon v.

McMahon, 1 Mass. App. Ct. 647, 649 (1973). Nor did he present any evidence showing that

the wife’s perception caused “’deleterious effect[s]’ on the children and an ‘undermining’ of the custodial relationship,” Felton v. Felton, 383 Mass. 232, 240 (1981), or that sole custody in him would be in the children’s best interests.” (at 404). The acrimony was “such that the trial court’s reasoning that was affirmed by the Appeals Court was that both parties had such a bitter relationship that it was better to preclude all financial transactions and personal interactions between the parties.” (Packenham, 2004 at 41). The court awarded the marital home to Mother and released the Father from alimony or child support payments. Both parties were capable of supporting themselves by virtue of their professions.

In its subsequent opinion, the Appeals Court cited G.L. 208 §30, “in determining custody the rights of the parents shall be equal”…but “the overriding concern of the court is the best interest of the children and their general welfare.” (Rolde, at 402). Citing Jenkins v. Jenkins 304 Mass. 248, 250 (1939), it wrote, “In providing for the custody of a minor child, while the feelings and wishes of the parents should not be disregarded, the happiness and the welfare   of the child[ren] should be the controlling consideration.  It is the duty of the judge to  consider the welfare of the child[ren] in reference not merely to the present, but also to the probable future, and it is a subject peculiarly within the discretion of the judge.” (at 403).

6 There are discussions of joint v. sole legal custody in all the cases under the heading of religious issues.

7 A determination that the wife was unfit for this reason alone would be dubious as “the comparative emotional

health of the parents is only one of several factors which can affect the well being of their children.” Angelone v. Angelone, 9 Mass. App.Ct. at 730. See also Annot., Mental Health of Contesting Parent as Factor in Award of  Child Custody, 74 A.L.R.2d 1073 (1960).

Father objected on the grounds that this reflected a maternal preference on the part of the court. The Father argued that joint legal custody or continuing contact and joint decision- making is preferable.⁸ Citing Felton, the Appeals Court agreed, but it supported the trial judge’s opinion that for joint legal custody (or shared responsibility) to work, both parents must be able to agree on basic issues in child-rearing and want to cooperate in making decisions for their children. The opinion then shifted into a discussion of joint legal custody (at 405-406) and is included here because of its significance.

Although complete agreement between parents to implement joint custody may not be necessary,” in order to be effective “joint custody requires two capable parents with some degree of respect for one another’s abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions.” Taussig & Carpenter, Joint Custody, 56 N.D.L. Rev. 223, 234 (1980). See also Foster & Freed, Joint Custody: A Viable Alternative? 15 Trial 26 (No 5, 1979). It is difficult, as in the present case, to award joint custody following a divorce traumatized by personal and emotional conflict. The judge had the benefit of testimony from expert witnesses, reports from experts, and proposed findings from a court appointed counsel representing the children and their separate interests. The judge concluded…”joint custody or shared responsibility is an invitation to continued warfare and conflict.”⁹ The judge found the wife has been the “primary nurturing parent” and “primary caretaker” and that the children have the “strongest bond” with their mother. These factors are highly significant for the welfare of the children and are thus critical considerations for the judge in deciding on a custodial arrangement that minimizes disruption and fosters a healthy environment for the growth and development of the children. Although the husband had had involvement with the child rearing functions and responsibilities, the judge concluded that because the parties have basic fundamental differences in the major areas of child rearing, such as health care, religion and education, as well as in day-to-day decision making and philosophy of discipline, an order providing joint custody would run contrary to the children’s happiness and welfare.  That determination has ample support in the record.

Comment: This case is highly relevant because so many cases that need a GAL are of the high conflict variety that typically results in a joint legal custody determination.  Rolde is often cited in appellate decisions involving custody. In this instance, there was no domestic abuse alleged, although the judge characterized the divorce as “traumatized by personal and emotional conflict.” This case pre-dated Vaughn v. Vaughn, 422 Mass. 590 (1996),¹⁰ which involved physical as well as emotional abuse. In many high conflict cases that have temporary

8 M.G.L. c. 208 § 30 states, “”Shared legal custody”, (means) “continued mutual responsibility and involvement  by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development.””

9 The Court cited Braiman v. Braiman, 44 N.Y.2d 584, 590 (1978) “As a court ordered arrangement imposed

upon already embattled and embittered parents, accusing one another of serious vices and wrongs, [joint custody] can only enhance familial chaos.”

10 See case on page 49 for description of the types of violence in that case.

joint legal custody, an argument can be made that this form of custody is an invitation to “continued warfare and conflict.” So, this case begs the question for the GAL as to what kind of conflict and what level of intensity of conflict is necessary to approach the threshold of a sole legal custody solution. How much cooperation or agreement over what kinds of child- rearing issues is sufficient to recommend joint legal custody? Here, it seemed that the level of hostility was so great that the court went to the extent of ending any financial relationship that Father might otherwise have had with Mother. The Court specified the areas of child-rearing, in which there was no cooperation or mutual agreement between the parents. For an interesting contrasting decision in a very high conflict case, see Kendall v. Kendall 426 Mass. 238 (1997), where the judge awarded joint legal custody, since there was only one (but a major one) area of parenting disagreement between the parties, that being a pattern of dramatically different religious beliefs and practices. In that case, Mother was raising the children in one religion, while the father, because of his own different religious beliefs, was undermining their religious adherence. Often one of the questions asked by the court is what kind of custody would the GAL recommend (if recommendations are sought) for the parents? Is it reasonable to recommend the appointment of a parenting coordinator with arbitration power (with consent of the parents) as one basis for supporting a joint legal custody solution, or does the need for that type of intermediary simply reinforce the idea that cooperative parenting is impossible?

In the opinion, while the Court did not discuss in detail what parental roles each parent played during the marriage, it did determine that Mother had been the primary caretaker. Such a determination depends on facts specific to that issue. Despite noting that Father was involved in the responsibilities of child-rearing, designating Mother as the primary caretaker appeared  to bolster its award of sole legal custody to her. Contrast that with Freedman v. Freedman 49 Mass. App. Ct. 519 (2000), p. 23 this casebook, where the trial judge (affirmed by the   Appeals Court) decided clearly not to designate one parent as primary, but ordered a year on- year off schedule for the children (i.e. every other year the children with mother during school week and with father on weekends, and then flipped the following year). As noted in that above report, the Freedmans had worked out a shared time parenting plan after their  separation, in which the child was doing well. The Court could have awarded a similar schedule in Rolde, but it appeared that the parents’ inability to cooperate over any issue was  the primary consideration in this case. Freedman was decided 19 years after Rolde, so that legal thinking about parental roles had changed consistent with the changes in society. In addition, this decision emerged just about the time Wallerstein and Kelly published their first report of research on divorce, Beyond the Breakup, so social science data on the process and effects of divorce was in its infancy.

SONJA I. BAK v. ANTHONY BAK (and a companion case¹¹)

Massachusetts Appeals Court

24 Mass. App. Ct. 608 (1987) at: http://masscases.com/cases/app/24/24massappct608.html

Keywords: Divorce and Separation, Custody of child, Foreign determination as to custody of child, Child’s preference, Sibling issues.

Background: When the Baks married in 1967, Mother was a secretary and Father was a graduate student. Mother worked until Father earned his doctorate, but did not work out of the home thereafter. After Father got his Ph.D., they “traveled the world” as his academic  positions required regular changes of residence (e.g. Paris,  Princeton, NJ, SUNY-Stony  Brook, Geneva, and Bonn). Their first child, Linnea, was born in Sweden in 1969 and Rosemary was born in Bonn in 1974. Their third child, Tony, was born in Bielefeld, Germany in 1976, where Father was working in a tenured academic position. During the course of the marriage, there were relationship problems, but mother had been the primary caretaker. Father spent a fellowship year in Oxford, Great Britain and began an affair with another woman, telling Mother that he would not longer live with her. In August 1979. Mother took the children and came to Northampton, where her mother-in-law resided, and she filed for divorce in September 1980. She then moved to Amherst, where the children entered school. She also started taking college courses toward a degree in Art Education. Father came to visit often, and some trust re-developed between the parents. Linnea spent one summer in Bielefeld, and then Tony spent a whole academic year there the following year, 1983-84, because he did not   know his Father well, as he had been so young at the separation. Father reneged on his   promise to return Tony at the end of the school year and kept him in Germany. He obtained custody from a Bielefeld court in August 1984.

Litigation over jurisdiction ensued. Despite court orders not to remove any other child from  the Commonwealth (and to return Tony), Father removed Linnea to Germany without permission of Mother or the court. Father rarely visited Northampton thereafter to see Rosemary, who lived with Mother. At a trial in Massachusetts on the merits in November 1983 he filed no papers on his own behalf. He also refused to cooperate with a court-ordered investigation by a family service officer. He sent no child support between 1979 and 1983, paying less than required to the DOR thereafter. In 1984, he made up the arrearages and then asked the court to re-open the custody issues. When Mother visited the children in Germany   in 1984, the local court required supervision and the Father ejected her from his home. In  1986, Mother re-abducted Tony, 10 at the time, and returned him to the United States, leaving Linneas with Father. Father petitioned the Hampshire County court to reopen the evidence   and gained a hearing in January 1985, which he did not attend. The family court granted custody of Tony and Rosemary to Mother, who waived any contest over Linnea, since, at 16, she wanted to remain with her Father in Bielefeld.

11 Sonja I. Bak vs. Anthony Bak and Esther Bak.

While there were issues of alimony and property, the trial court’s findings regarding the children were that Rosemary had lived with her mother since the separation, was in good health, had attended Amherst schools for seven years, had substantial roots in the community, and had a good relationship with her maternal grandmother. Mother was “clearly fit to be the custodial parent.” (Bak, at 617). The court determined that both children should be in their mother’s custody, since “it would be in the best interest of Rosemary and Tony to have a continuing relationship with both parents,” which result was best achieved through Mother’s custody, since Father had greater freedom to travel.

Custody of Tony was “a closer question.” Father “appears to have indoctrinated him with  some dislike for his mother” (Bak, at 617) and Tony expressed a desire to live with his Father and was familiar with life in Bielefeld. “The preference of someone Tony’s age (ten at the   time of the proceedings) is not given decisive weight, although it is a factor to be considered.” (Bak, at 617). The Family Service Officer found that Tony suffered no harm from having been in Germany, that he was intelligent and had adapted well to the Amherst school system. Like his sister, he had spent most of his life in Amherst, had done well there, had a support system in place in Amherst, and a close relationship with Rosemary, to which the court “gave a good deal of weight.” (Bak, at 618). The judge decided the siblings were “better off together, all other factors being equal.” Tony was closer to Rosemary than he was to Linnea in Germany. Father had closer ties to Massachusetts, where his mother lived (and she was close to the children), than Mother did to Bielefeld. He also had a vacation home in Truro, Massachusetts and could visit during the summer and at holiday time. The court noted that mother had provided several cultural activities to the children “at some sacrifice to herself,” such as   dance, music, etc. While Father “and his companion” could provide greater material comfort, the judge found that Mother’s current and prospective income was sufficient to allow a reasonable standard of living, which an adjustment of alimony from Father would ensure. It said, “Material advantage alone should not be determinative of custody…Material advantage and successful child rearing do not necessarily go hand-in-hand.” (Bak, at 618). The judge   also intended to contact the Bielefeld court to arrange for visitation there and for oversight when the children again visited their Father. The court noted, in somewhat optimistic fashion, “Careful oversight of any such order should eventually overcome the present distrust that exists between the parents.” (Bak, at 619)

Comment: This case contained two instances of “abduction.” The first, while not literally an abduction, was Father’s refusal to return Tony to Mother and the German court’s affirmation  of that act by giving him custody. Mother had sent him for a year to Father and assumed  Father would act in good faith and return him, which proved a false expectation. Then, two years later, in the second “abduction,” Mother removed Tony from Germany without Father’s or the Bielefeld court’s permission and obtained custody of the two younger children in Northampton. The Massachusetts courts took jurisdiction (there was a discussion of that in the decision) and awarded custody to Mother. From a GAL’s perspective, the case itself was not unusual (although one sees it cited often in subsequent cases over the years). It referenced issues such as a 10-year old child’s custodial preference (later explained further in Ardizoni v. Raymond 40 Mass. App. Ct. 734 (1996), p. 19 this volume, and discussed some of the factors  it considered in awarding custody to Mother. It also commented on the role that “material advantage” might play in these determinations, although one wonders what weight that would

have had, if mother were significantly under-financed. There was also the problem the court would have had if it awarded custody to Father, since he had thumbed his nose at court orders (e.g. removed Tony without mother’s or court permission) and had “indoctrinated” the son (today we would have called it “alienation”) against Mother. To have granted him custody would have been to reinforce his behavior and would not have been a good precedent to set.  In some instances, the Court has indicated that its role is not to punish misconduct by a parent if that behavior caused no demonstrable harm to a child, but rather to determine what would be in the child’s best interest. If Tony had been older, say 12 or 13, and determined to stay with Father, that would have been an “even closer” decision. It is clear that a minor child’s preference is never absolute in Massachusetts’ case law, although there is a clear relationship between age and the weight given to a child’s preference.

The other issue that pre-dated Ardizoni was the question of keeping siblings together post- divorce. In Bak, the court gave greater weight to maintaining that sibling relationship, “other things being equal,” and later, in Ardizoni, it suggested there was a strong preference for keeping siblings together (those siblings were twin girls), absent factors rebutting that presumption.

JEANNE M. ARDIZONI VS. DANA M. RAYMOND

Massachusetts Appeals Court

40 Mass. App. Ct. 734 (1996) at: http://masscases.com/cases/app/40/40massappct734.html

Keywords: Divorce and Separation, Child custody, Modification of judgment, Parent and Child, Custody, Custody, Children’s Preference, Sibling issues.

Background:  J. Jeanne M. Ardizoni (Mother) and Dana M. Raymond (Father) were married   in 1984, and, in the same year, became the parents of identical twin girls, Rebecca and Mary (pseudonyms). They separated in March 1993, because of serious problems in the marriage, and the husband filed a complaint for divorce in April. However, after the separation in  March 1993, DSS removed the children from Mother’s care (she had substance abuse problems) and Father obtained temporary custody. The girls had supervised visits with Mother. In the divorce judgment of February 1994, there was a stipulation for joint legal custody, physical custody to Father for three months, visitation to Mother, and a plan to shift to joint physical custody “if visits had gone well.” In April 1994, Mother filed a modification seeking sole physical custody. The claimed change in circumstances was alleged danger from the Father’s oldest son (from a previous marriage) who lived in Father’s home and had a mental disorder (recent commitment) and an arrest for a firearms violation. In December 1994, the parents stipulated to alternating two-week periods of custody, and the oldest son would not be in the Father’s home when Father had the girls. This arrangement prevailed until the hearing in February 1995 on the mother’s complaint for modification of the previous April. At the hearing, the judge interviewed the 11-year old girls in chambers with parties’ permission. He then allowed their testimony on the record in open court. Rebecca stated she wanted to try living with Mother, while Mary wanted to remain with Father. The judge’s order coincided with the girls’ wishes, while they continued to attend the same school and be together on visits. This order was temporary until a hearing in June 1995, and a guardian ad litem was appointed to evaluate the situation.

At trial, the judge again spoke alone to Rebecca in chambers regarding her preferences. He issued written findings at the end of June extending the split custody of the twins for another year. Father appealed to a single justice, who scheduled argument before the full appellate panel. In addition to the record being transferred to the appeals court, there were the judge’s notes from his meetings with the children. At the time of oral argument, the children had been attending different schools in the same town and Mary was refusing to spend overnight with her mother. Father argued that the children should be together, that the judge gave too much weight to the children’s preference, and that, since Mary has refused to stay overnight with Mother, “the only practical way of keeping the twins together” would be for him to have physical custody of both girls.

This was a modification of a judgment and the relevant statute was: “General Laws c. 208, § 28, as amended through St. 1993, c. 460, enables a Probate Court judge, upon finding that “a material and substantial change in the circumstances of the parties has occurred” to modify an earlier divorce judgment concerning the custody arrangements of minor children, where the

modification “is necessary in the best interests of the children.” See Hartog v. Hartog, 27 Mass. App. Ct. 124, 128 (1989), & cases cited. Also, “In determining whether there has been a material change in the parties’ circumstances, the probate judge must weigh the relevant circumstances; the resolution of the various factors rests within the judge’s sound discretion..

. . Unless there is no basis in the record for the judge’s decision, we defer to the judge’s evaluation of the evidence presented at trial.” Bush v. Bush, 402 Mass. 406, 411 (1988).” (Ardizoni, at 737)

The Court said that, since Mother had made progress in her recovery from drug addiction, the trial court’s decision that this reflected a “material change in circumstances” was not in error, as the evidence supported that finding. “When determining child custody awards in general,  or modifications of custody awards based on changed circumstances, the guiding

principle always has been the best interests of the children.” Rolde v. Rolde, 12 Mass. App.  Ct. 398, 404 (1981). “The decision of which parent will promote a child’s best interests ‘is a subject peculiarly within the discretion of the judge.” Bak v. Bak, 24 Mass. App. Ct. 608 (1987), quoting from Jenkins v. Jenkins, 304 Mass. 248, 250 (1939). Discretion allows the judge, when determining the best interests of children, to consider the widest range of permissible evidence, including the reports and testimony of a court appointed investigator or G.A.L., evidence of the history of the relationship between the child and each parent,  evidence of each parent’s present home environment and over-all fitness to further the child’s best interests, and the judge’s own impressions upon interviewing the child privately in chambers. See Kindregan & Inker, Family Law and Practice § 1169 (1990) & cases cited.” (Ardizoni, at 738).

The Court went on to note that, among the list of factors a judge could consider, was the preference for siblings living under the same roof, as well as the child’s preference. “Statements of a particular preference, however, “must be treated with caution,” Hale v. Hale, 12 Mass. App. Ct. 812, 820, particularly where, as here, custody is hotly disputed. Kindregan & Inker § 1171, at 271 & n.54. Although one of the many permissible factors to be  considered, the  preference of a younger child “is not given decisive weight.” Bak v. Bak,  supra at 617. See also Custody of Vaughn, 422 Mass. 590, 599 n.11 (1996) (“Preference of an eleven-year old is not given decisive weight, although it is a factor to be considered.”). (Ardizoni, at 738-39). The Court found no basis in the record or in the judge’s notes from which the judge could conclude that split custody could be in the children’s  interest. In fact, the Court noted that the evidence was to the contrary, citing expert and non- expert testimony, as well as statements from the girls themselves. The Court opined that the judge’s reasoning “manifested an excessive reliance” on the stated preferences of two eleven- year-old girls. (Ardizoni at 741). It remanded the case for further hearing, but it maintained the instant custody arrangement pending further review.

Comment: This was a very intense case, which made headlines when the trial judge temporarily placed the twins in foster care, because he believed that the actions of both parents were harmful to the children. Scenes of the children’s heart-rending crying and screaming appeared on television when they were separated from their parents outside the court. The issues relevant to investigations are the definition of a “material change of circumstances,” which also includes “best interest of the child” as a guiding principle.

Packenham (2004, at 298) noted that it was not error for the trial court to conclude that mother’s success in recovery from substance abuse constituted a change in circumstances. Delmolino v. Nance, 14 Mass. App. Ct. 209 (1982), discussed later in this volume (p. 117), counsels the court, as well as a GAL, to understand when a “material change of circumstances” is necessary to make a recommendation for a requested modification in an earlier judgment. The writer’s comment on that case raises questions about whether a GAL should make recommendations when a “change of circumstances” is the standard by which a decision is to be made. That issue is addressed more directly in the last chapter of the casebook.

Ardizoni is also important first, from the perspective of the Court’s discussion of the significance of a child’s stated preference and, second, in its own preference for keeping siblings together. In this case, those preferences were in conflict, since the Appeals Court gave greater weight to sibling solidarity. However, if the children were older, that decision might have gone the other way. In Massachusetts’ case law with respect to divorce, there is no age for a minor when his or her preference for a certain outcome is absolutely followed by a court. Social science research in other areas of adolescents’ competence to make decisions (health, legal, participation in research) suggests that somewhere between 14-15 is the age at which these decisions would be comparable to those of adults.¹² The law seems to balance such factors as chronological age, intelligence, and maturity in considering what weight to give a teenager’s preference, as well as context issues, such as the influence of a parent in the child’s or adolescent’s assertion of a preference or the motivation in stating his/her choice.¹³

12 Miller, Victoria A.; Drotar, Dennis; Kodish, Eric. Children’s Competence for Assent and Consent:  A Review of Empirical Findings. Ethics & Behavior. 14(3), 2004, 255-295; Melton, G. (1983). Decision-making by children: Psychological risks and benefits. In G. B. Melton, G. P. Koocher, & M. J. Saks (Eds.), Children’s competence to consent. New York: Plenum. Weithorn, L., & Campbell, S.  (1982). The competency of children and adolescents to make informed treatment decisions. Child Development, 53, 1589-1598.

13 One of the reviewers (Jones) asked whether a child of any age should ever be asked to state a preference.

While this is an issue of professional practice, soliciting a preference when a child has not spontaneously offered one poses the risk that the GAL will inadvertently place the child in the middle, especially since any resulting statement is “on the record.

ROGER A. FREEDMAN vs. IPPOLITA S. FREEDMAN.

Massachusetts Appeals Court

49 Mass. App. Ct. 519 (2000) at: http://masscases.com/cases/app/49/49massappct519.html

Keywords: Divorce and Separation, Child custody, Parent and Child, Custody, Divorce, Custody of child.

Background: In this marriage, the husband was about 19 years older that the wife, having met her when he was 39 and she was a sophomore in college. They married in May 1992, after having lived together for almost two years. They had a child in October 1993 and were an affluent family, However, the marriage deteriorated quickly, and by March 1994, each filed for divorce against the other.

In the judgment, the trial court ordered joint legal custody and an unusual parenting plan, reasoning that both parents were capable and caring. Father was to have custody on weekends and mother during the school week for a year, and they would reverse the arrangement for the following school year. The judge intended to give the child stability during each school year and to avoid the “today is Tuesday, I must be going to Mom’s house” phenomenon. (Freedman, at 520). The custody orders also contained specifics as to location of school, among other issues. Mother appealed on the basis that the judge could not order a joint  custody arrangement, since no “shared custody implementation plan” had been proposed to  the court (Freedman, at 521), which mother claimed was required by G.L. c.208 §31, 11^th paragraph.

The Appellate Court found that this was too narrow a reading of the statute. It stated that judges have broad discretion to order a joint legal custody plan that “the judge considers expedient to the care, custody, and maintenance of the minor children of the parties,” (Freedman, at 521) even if the parties have not provided such a proposal to the court. Judges have broad discretion since they have “the opportunity to observe and appraise both parents in such matters.” (Freedman, at 521). With respect to the joint custody order, the Court said that the judge wrote careful findings, basing her order on a de facto shared custody arrangement post-separation within which the child had adjusted well, and the fact that the parents were  able to agree on pre-school placement “albeit with some rancor on the subject.” The Court noted the potential practical problem that might arise were one parent to move away from the town in which they were both then living. However, the judge felt she had achieved consistency through the continuation of a sharing arrangement with which the child had become familiar, rather than the creation, by an order, of a ‘predominant parent’ and a ‘visiting parent’. In the trial documents, the judge had criticized the GAL report for having a “maternal preference.” The Court wrote, “The task of the Probate Judge is not to find the perfect custody solution, but to devise one that best accommodates to the difficulties and to   the child’s interest.” (Freedman, at 522). The Court also noted that, while the judge devised her order to fit the facts of the case, this scenario should not be considered a model.¹⁴ The

14 Henry Bock, Jr. considered this statement important, since it underlies the Court’s view of deciding each case on its particular merits in the context of the “varied characteristics of families.”

Court further stated that, should the arrangement prove to create difficulties for the child, the trial court could reconsider the issue, since an adverse effect would “constitute a material change in circumstances.” (citing Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 737-38 [1996]).

Comment: This case highlights the broad discretion afforded probate judges in creating parenting plans and custodial arrangements, including ones that neither party proposed. In many appellate decisions, the courts have stressed that the trial judge is granted such   discretion because of his/her unique position to observe the parents at the time of trial. As an extension of this idea, the GAL is the one other professional that has an opportunity to interview and observe both parents, including each of them with the children, although they are not under oath. However, the GAL observes the parents in a very different way than a judge, when the latter “hears the case.” The GAL also interviews a variety of collateral   sources of varying degrees of separation from the family. Typically, the judge does not see the parents with the children, or even interview the children. As the “eyes and ears” of the Court, the GAL is usually the only person besides the judge – in the rare event of a trial – who gets to hear the whole case. The GAL’s particular vantage point is the foundation for how influential is the information he or she provides, whether or not recommendations are included in the report. However, per the Category F standards as currently written, a GAL investigator may not make such recommendations, absent a specific request in the order of appointment or a subsequent order permitting such recommendations.¹⁵

One other interesting twist in this case is that the judge ordered shared physical and legal custody despite the fact that neither parent suggested it, and despite conflict over something as important as choosing a pre-school.¹⁶ The judge noted that the parents were able to finally make a united choice, but she added, “With some rancor.” It appeared that what was most relevant was the post-separation parenting plan the parents had arranged that appeared to be working well for the child. That suggests that shared physical custody arrangements do not have to be devoid of inter-parental conflict, but the amount or quality of that conflict is not defined, except on a case-by-case basis. It is likely that the “tipping point” would be conflict that was adverse to the child’s well-being, since the welfare of the child is a criterion often repeated in appellate cases,¹⁷ and that welfare did not seem compromised by the conflicts. The converse of that in appellate law seems to be “demonstrable harm to the child,” and perhaps a party opposing a proposed form of joint legal custody would have to show actual or potential harm, perhaps even substantial harm, to support his or her preferred form of parental responsibility. The parent opposed to joint legal custody might also have to demonstrate the impossibility of parental cooperation. In such an instance, the task for the GAL would be to   do a time-line comparison of the child’s adjustment patterns, taking account of the typical developmental changes that normally occur with age. The GAL would have to assess the adjustment problems if existing, to determine what connection, if any, there was to parental 15 Alex Jones suggested that the GAL can discuss with the parties or counsel about making recommendations. If they are so inclined, they can ask the court to give permission to do so. The GAL can also file a motion with the court to clarify this issue, if there is doubt about the court’s intent in the order.

16 Packenham (2004), op. cit. at 382, noted, “Custody arrangements are not limited by a shared custody implementation plan submitted by the parties.”

17 In reading the appellate cases, this term is considered a factor in “best interests,” but almost seems synonymous with it.

conflict, as well as to other factors in the family’s life or the child’s own development. This is no simple task, to be sure.

Other cases where legal custody has been at issue have shown the need for the GAL to parse out the areas of cooperation from those of disagreement, so that the court can decide what weight to give this balance of cooperation to non-cooperation in determining legal custody. The same dilemma exists in making recommendations about legal/physical custody as occurs in modification decisions. That is, by what measure can a GAL decide that the parents can cooperate on enough of the child health, education, and welfare issues to approach that undefined threshold of shared legal or physical custody? Some GALs will recommend a detailed distribution of parental responsibility where each parent would have authority to   make decisions in areas in which they have shown particular ability. Thus, one parent might have the legal authority to make medical decisions, while the other manages educational ones. In each instance, the responsible parent would have the obligation to at least inform the other parent.

The other lesson from cases such as this is the court’s pattern of avoiding absolutes in looking at parental behavior. That is, one parent is not all good or bad, but a combination of strengths and weaknesses in terms of his or her character, stability, and skills. The Court then explores how those skills impact child-rearing and tries to apportion the parents’ respective abilities to further the welfare and best interests of the child, all, of course, within the limits of the law to affect such outcomes. The task of the GAL is to provide that kind of detailed information to the trial court so that, to the extent possible, the judge can individualize a decision to fit the needs of the children and the family. Most cases involving a GAL investigator or evaluator do not come to trial, so the GAL data is useful for parents and counsel in trying to devise an agreement that best meets the needs of the children in the context within which the parents live.

CUSTODY OF ZIA.

Massachusetts Appeals Court

50 Mass. App. Ct. 237 (2000) at: http://masscases.com/cases/app/50/50massappct237.html

Keywords: Parent and Child, Custody, Child custody proceeding, Custody of child.

Background: Zia was born in August 1996 to unmarried parents, who (from the record) had never lived together.¹⁸ Mother became the primary caregiver, while Father had substantial visitation. Father’s family was well-educated; he had one year of college, was employed as a patient service representative, and was enrolled in a graphic design program at a local college. He also had a criminal record, including two convictions for A&B (not against Mother) and a drug offense. Two abuse prevention orders had been issued against him and an A&B charge was pending. Mother was born in Puerto Rico and was bilingual, living in New Bedford in public housing. She did not complete high school, but she earned her GED and had held several blue collar-type jobs. She had been arrested for possession of drugs and placed on probation, and she had one conviction for driving without a license.

The Court held:

As a result of a stipulation in November 1996, the parents agreed to share legal custody, while Mother had physical custody. Father had the child about 140 days/year, usually at his parents’ home, although he had an apartment of his own in Brookline. The Court noted the amount of cultural and intellectual stimulation Zia received from the “society and companionship” of her paternal grandparents.

Notwithstanding that involvement, Father was the primary caregiver for Zia at his parents’ home. He intended to move into an apartment in the lower floor of their home, if he were awarded custody. The Court credited him with enhancing her development through interesting and educational activities, as well as providing her with books and other stimulating materials. Mother had lived with her mother in the past, but she had her own apartment. When Mother was at work, Zia’s 74-year old great- grandmother took care of her. Both parties agreed that Zia was well-adjusted, happy, and had met the appropriate developmental milestones for her age. In general, Mother had taken good care of Zia, with the help of her family.

“Notwithstanding the positive attributes of the mother’s care of the child, the judge had serious concerns about the mother’s judgment, parenting abilities, and interactions with the Father. The judge found that the mother has “dismissed the need of the child for a Father”¹⁹ and has “thwarted his joint legal custody at every turn.” “She has denied him information about and input into the most important decisions and events concerning the child: medical issues, hospitalizations,

18 There is a discussion in the Afterword about statutory differences in approach to cases in which parents never married (M.G.L. c. 209C) and cases where they were married (M.G.L. c. 208)

19 The judge noted also that the mother had made statements to the guardian ad litem “clearly indicating her opinion that a Father is not a necessary or important figure for a child.”

attendance at pre-school, selection of pre-school educational programs, all to the detriment of the child.” The judge found that the mother believes that she alone can make important decisions in the child’s life. (Zia, at 240).

The Court also criticized Mother’s judgment for a lack of structure in her home, for allowing Zia a very late bedtime, for letting the girl sleep with her and her boyfriend, or sleep with her alone, and for letting her watch television constantly. She had also come to pick Zia up at the home of a relative in a car without a car seat and with a driver who was drinking. Mother had done little to enhance the child’s education and refused an offer by the father to pay for pre- school in Brookline. The judge faulted her for allowing so much TV watching, including adult-oriented talk shows. Lastly, Mother was criticized for failing to complete a court- ordered parenting class (as Father had done) and for attempting to thwart Father’s legal custody.²⁰ Based on the above facts, the judge awarded sole legal and physical custody to the father. She noted that Father had always respected mother’s role in Zia’s life, whereas just the opposite was the case with mother. That, and mother’s poor parenting decisions were the   basis for the custody award.

Mother argued that the judge failed to afford “proper weight” to her role as primary caretaker, but the Court rejected that idea, stating that the quality of the care was an important qualifier  to any direction established by the legislature as in G. L. c. 209C, § 10(a), as amended   through St. 1998, c. 179, § 6, and where it established a judicial presumption, it clearly so stated. See, e.g., G. L. c. 208, § 31A, & G. L. c. 209C, § 10(e) (a judge’s “finding by a preponderance of the evidence, that a pattern or serious incident of abuse has occurred shall create a rebuttable presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody, or shared physical custody with the abusive parent”). In   the 209C, § 10(a) statute, the Court stated the Legislature was not as specific.

The Court took note of the need to consider all the factors in determining custody, “Here, the judge’s voluminous findings demonstrate consideration of myriad factors and circumstances relevant to the child’s best interests, including the mother’s refusal or inability to communicate with the father (in non-visitation matters) for the benefit of the child,²¹ the mother’s poor

20 The judge also made findings concerning the reports and testimony of the guardian ad litem and the testimony of the mother’s expert. The judge noted that the guardian ad litem, in her final report, had recommended that, although the parties sometimes had difficulty communicating, “joint legal and physical custody would be best because it would ensure that information is shared between the parties.” The judge noted further that the mother’s expert believed that the mother was a good parent and, although the mother was young and made some poor decisions, those decisions did not harm the child. In the expert’s opinion, the mother’s family could provide her with the guidance she needs to raise the child. The judge also found the expert’s opinion to be flawed as she did   not meet with the Father during her evaluation. [Zia, at 241]

21 “Joint custody was not feasible in the circumstances presented here. As we have stated… G. L. c. 209C, §

10(a), provides that a judge may award the parents joint custody of a child where the parents have entered into an agreement or the court finds that they have successfully exercised joint responsibility for the child and have the ability to communicate and plan with each other concerning the child’s best interests. See  Rolde v. Rolde, 12   Mass. App. Ct. 398, 404 (1981); Doe v. Doe, 16 Mass. App. Ct. 499, 502 (1983); K.J.M. v. M.C., 35 Mass. App.

Ct. 456, (1993). Cf. Williams v. Massa, 431 Mass. 619, 636 (2000) (“If the judge felt that joint legal custody put the children at risk, or was not in their best interests, because of the wife’s worrisome parenting behavior, then the judge should have ordered sole legal custody to the Father”). Carr v. Carr, 44 Mass. App. Ct. at 925 (“Where the judge . . . has found that the relationship of the parties has been dysfunctional, virtually nonexistent, and one

judgment and worrisome parenting decisions, the father’s active, substantial, and constructive involvement in the child’s life, and the father’s willingness to respect the mother’s role as a parent.”²² (Zia, at 244). The Court noted that Mother placed some value on education, but not to the degree that the father did, especially as she did not engage the child in stimulating activities or enroll the child in a day care program that would have advanced her learning.

Mother appealed the judge’s finding of “no history of domestic abuse,” but the Court found that “the judge had considered the question of abuse and was of the opinion that the present case presented no history or pattern of domestic violence that would preclude an award of custody to the father. Compare on page 49, Custody of Vaughn, 422 Mass. 590, 596-600 (1996).”²³ (Zia, at 246). The Court also defined the concept of “access to the child” not as interference with visitation, but as a refusal to allow Father to have access to relevant information about the child or to involve him in important decisions regarding Zia. Mother protested that Zia’s sleeping in her bed was not an issue, but the judge referenced mother’s own expert, who expressed concerns about that, suggesting “developmentally, it’s appropriate to have a child begin to learn to stay in their own bed.” (Zia, at 246). It was unclear how old Zia was at the time of trial, because she was just four when the appellate decision was issued. Mother had raised issues of class bias by the judge, but the Appeals Court found no basis to credit that objection, saying it was only an issue for Mother and neither the father nor his parents had ever used the differences in their education or home environments to the disadvantage of Mother. Mother had alleged that the judge had a cultural bias in criticizing   her for sleeping with the child, but Mother had admitted that she did not sleep with her mother when she was a child, thus weakening her argument about a cultural issue.

Comment: This case provides discussion of several issues:

• In Zia, the Court determined that the qualities of Father’s parenting, including his ability to provide greater opportunities in life for the child, outweighed the fact that Mother had been the primary caretaker. The Court appeared to have decided that Mother’s parenting was sub par, even though it might not have declined to the level of unfitness. The primary caretaker preference, as later defined in Custody of Kali, 439 Mass. 834 (2003) and in law by M.G.L. c 209 § 10, is not absolute and requires evidence of the quality of the parenting itself. In Kali, the SJC considered what factors existed to affirm the preference for the primary caretaking mother, when the father might have been marginally more
• The presence of restraining orders or even prior aggressive acts (A&B) is noteworthy, but the statute (or Vaughn itself) requires a showing of a history or pattern of
• Certain child-rearing practices, if not culturally normative (such as the “family bed”), may receive close The notion of a toddler sleeping in her own bed at a certain

of continuous conflict, he properly may determine that custody should be awarded only to one parent”). It is   clear from the court’s findings that the judge believed that the Father’s participation in the major decisions in the child’s life was important, if not essential, to the child’s well-being.” (Zia, at 244-245)

22 “We note that our decision need not, and does not, turn on the “cultural” experiences (e.g., visits at an

aquarium or a museum) that the Father or the paternal grandparents may have provided the child. Cf.

Guardianship of Yushiko, 50 Mass. App. Ct. 157, 159 (2000).” (Zia,at 244)

23 “While the Father’s past conduct toward the mother, particularly in the light of his criminal history, gives us pause, we note that the Father participates in therapy for assistance in controlling his anger. The judge also found

that the Father has matured as a result of his responsibilities as a parent.” (Zia,at 246) age may not have any normative data to support expert opinion, such as was given in this case. There were other poor parenting decisions by Mother in this case (such as Zia sleeping with her and her boyfriend), but sleeping alone with mother might not have been one of them. With this issue, it would be important for the GAL to inquire about the sleeping patterns in the parent’s own family of origin.

• When considering whether one parent has permitted “access” to the child by the other parent, a GAL should include the extent to which parent A has shared important medical or educational information with parent B, as well as whether parent B was able to spend time with the child. It seems reasonable to add the degree to which either parent informs the other of the various activities of the child. In Zia, the Court appeared to say that Mother’s goal was to “thwart Father’s legal custody,” suggesting his access to information and input, rather than actual parenting time. Yet, the Court did not appear to give as much weight to the withholding of that information from Father, as it did her resistance to permit him the opportunity to contribute to Zia’s emotional, academic, and social
• The Court emphasized that the judge did not exhibit a class bias in her decision, noting that the parents had different parenting behaviors, the Father’s being more relevant to Zia’s positive development than Mother’s. That noted, the Court did not determine Mother to be unfit. The fact that there was such a difference in the economic and educational backgrounds of the parties and their respective families makes it imperative that the GAL be very aware of these factors when assessing cases with those kinds of socio-economic discrepancies. This kind of fact pattern behooves GALs to provide the Court with data regarding parental strengths and weaknesses, and some assessment of the relative costs and benefits of each to the
• Lastly, footnote 21 (10 in the original case) suggests how the Court considers parents’ behaviors in balancing joint and sole legal custody. So many of the high conflict cases can fit into the category of “dysfunctional, virtually non-existent, and one of continuous conflict” that they could easily suggest a sole custody outcome. Given the somewhat vague standard for that decision, it might be best for GALs, both mental health and legal professionals, to avoid making specific legal custody recommendations. Presently, the category F standards prohibit GAL/investigators from offering recommendations, absent an affirmative court order to do so.²⁴ There is discussion earlier in this volume about the advisability of a detailed analysis of how the parents have behaved with respect to specific responsibilities usually included in joint legal custody, especially the children’s medical, educational, and general welfare concerns.

24 But see Alex Jones’ suggestion in footnote 15 (this volume) for a possible solution to that issue.

B.B.V. vs. B.S.V.

APPEALS COURT OF MASSACHUSETTS

68 Mass. App. Ct. 12 (2006) at: http://masscases.com/cases/app/68/68massappct12.html

Keywords: Divorce and Separation, Custody, Incest.

Background. The parties married in June 1990. They had twin boys, W.V. and G.V., in November 1998. The boys were six and one-half years old at the time of trial and almost seven when the judge made his findings of fact (the children were younger when evaluations and interviews were done). In May 2002, B.S.V. (Mother) contacted her biological father, R.S., whom she had not seen virtually all her life, after her father had left her mother during her mother’s pregnancy (she also knew that one of the reasons for her parents’ divorce was that her father committed some sexual offense). Mother then began an extensive e-mail and telephone communication with her father (up the three hours/day), including messages that were sexually suggestive. She went to visit her father in September 2002, and, as she later told a friend, she had “broken her marriage vows.” In November 2002, R.S. visited Mother at Thanksgiving and in March 2003 he came to live with the parties. This served to exacerbate the marital problems and contributed to the demise of the marriage. In May 2003, Mother filed for divorce. She then slept on the floor in the room where her father slept, until B.B.V. (Father) vacated the home. Father then filed complaints with DSS, the police, and the probate court, alleging that R.S. was sexually abusing their son, W.V., and that R.S. and Mother were engaged in an incestuous relationship. He sought sole custody, supervised visitation for his wife, and orders to bar R.S. from contact with their children.

After investigations, neither DSS nor the police department found any substance to the allegations of abuse. The court appointed a guardian ad litem to also investigate and report on issues of custody and parenting time. The children were ordered to be evaluated with respect to possible abuse.

The GAL filed his report in March 2004 and concluded that Mother was involved in an incestuous relationship with her biological father. Father then motioned the court for sole physical custody of the children and a prohibition on visitation with Mother. After an evidentiary hearing, the judge made findings of fact and granted Father temporary sole physical custody of the children, pending the results of the children’s specialized abuse assessment. The judge concurred with the GAL’s assessment regarding the presence of an incestuous relationship. Mother was allowed to see the children, but the court prohibited her from having her father present at any time that she was with them. The judge ordered Mother to undergo a mental health evaluation by a “psychiatrist or psychologist of her own choosing.” Until the judgment of divorce nisi in November 2005, Father then continued as the physical custodian of the children while Mother had parenting time, as long as R.S. was not present with the children.

At trial, the judge heard testimony from the various experts involved in the case, including several mental health professionals and other collaterals. DSS had no concern about safety issues and neither parent alleged that the other was unfit. In his detailed findings, the judge determined that Mother was the better parent despite the obvious concerns about her relationship with her father. The judge found that Mother had always been the primary caretaker (up until the temporary order granting custody to Father) and managed the daily administrative tasks of the family [the “caretaking” and “parenting” functions referred to in A.H. v. M.P. 447 Mass 828 (2006)].

Even when Father had primary responsibility for the children, Mother kept in contact with the children’s teachers and was the person who did the direct care of the children when they were with her. She was capable of taking care of the children after work (children were in day care during the day). She was willing to encourage the children’s relationship with their father and to ensure telephone contact with him. Father did not similarly encourage the children’s relationship with Mother, because of his anger over the marriage and her relationship with her father. She kept Father informed about the children’s welfare during the separation period, when she still had primary custody of them, and she included him in decision-making and school affairs. The GAL, who had initially recommended a change in custody to Father, testified at trial that Mother was the more competent parent, since her father had moved out of the house and had no contact with the children. There was information that the children missed their mother and had trouble separating from her at the end of their time with her. Father even asserted that he would prefer that the children be with Mother, if the court were not to give custody to him.

No assessment found any connection between Mother’s incestuous relationship with her father and the adjustment of the children, who were “rambunctious, happy and healthy six (6) year-old children.” No agency or professional found that the children had witnessed any inappropriate behavior by their mother and there was no evidence of trauma. Mother had been in therapy since April 2004, dealing with her relationship with her father and she had kept her father from the children without fail since the court order. However, she had maintained a relationship with her father when the children were not with her. The judge found, however, that, at the time of trial Mother’s relationship with her father was not active. Mother’s relationship with her father was not deemed to have impaired her parenting of the children, and: in the judge’s view, there was no nexus between the wife’s inappropriate relationship with R.S. and her parenting and providing for the children’s needs. See Bouchard v. Bouchard, 12 Mass. App. Ct. 899, 899 (1981) (custody award not a device to discipline parent for shortcomings); Doe v. Doe, 16 Mass. App. Ct. 499, 503 (1983) (parent’s involvement in illegal relationship not in and of itself valid reason for denying custody of minor child). Compare Adoption of Katharine, 42 Mass. App. Ct. 25, 28 (1997) (for termination of parental rights, parental unfitness means more than character flaw or conviction of a crime; child’s best interests bear on how much parental deficiency is tolerable). The judge exhorted the wife to continue with her counselling efforts. (at 17)

The trial judge further found that Father showed no interest in being the primary caretaker, having left that role to his girlfriend (up to 45 hours/week of care), with whom he lived. In effect, the girlfriend was performing all the functions that Mother had previously done. Father interacted with the children when he had the time, but had not made any effort to alter his work schedule to be more available to them or to participate more in their care (he worked two to three night/week and Sundays). While he indicated he would seek more flexible employment or different hours, he in fact did not follow through on those commitments. Father noted that, if the court awarded him permanent custody, his girlfriend would continue to be the primary caretaker. From the trial court’s findings, it was clear that Father could not handle the care of the children, that he was careless in some medical follow- up of an ear-tube insertion in one child, and that he tried to keep Mother out of the loop in medical decisions. Furthermore, he entered one child in therapy without informing Mother.

Father and his girlfriend moved three times in one year, one of those moves being to a two- bedroom apartment where the children slept on an air mattress on the floor. The judge found the Father’s continuing anger at his ex-wife had compromised his parenting. In addition, Father had monitored phone conversations, talked about his ex-wife with her neighbors, and asked them to spy on her for him, and he spoke ill of Mother to the children. He admitted he was keeping a log of his ex-wife’s behavior to show to the children when they were older. Given those relative strengths and weaknesses of the parents (and the children’s attachment to their mother), the judge ruled, “…it is currently in the best interests of these children to be in the physical custody of their mother, who can be their primary caretaker and provide them with stability.”

Discussion. The Appeals Court opinion stated:

“The determination of custody is a choice among limited alternatives, all of which, invariably, have imperfections, often serious imperfections. The judgment that is called for is a realistic, commonsense judgment, one which weighs the practical significance of those imperfections or deficiencies in terms of their effect on the well-being of the child and his future development.” Fort v. Fort, 12 Mass. App. Ct. 411, 418 (1981). (at 18).

In affirming the trial judge’s decision to award physical custody to Mother, the Appeals Court said that the judge was remiss in not continuing the prohibition against any further contact by the children with her father. It said that returning custody to her “must rest on this condition.” It suggested that one could infer that prohibition was one basis for the judge’s decision and that it was even more necessary after the court returned physical custody to Mother, given her prior conduct. The Court would have considered it an “abuse of discretion” were the judge to omit an explicit prohibition against further contact, given the fact that, as the children grew older, there was a greater chance that exposure to that incestuous relationship would cause “obvious harm.” A judge needs to needs to “consider the welfare of the child[ren] in reference not merely to the present, but also to the probable future. . . .” Jenkins v. Jenkins, 304 Mass. 248, 250 (1939). A judge need not wait for the obvious harm that would befall children who are exposed, directly or indirectly, to an incestuous relationship.”

In remanding the case back to the trial court for inclusion of that condition, the Appeals Court added:

There can be no real dispute that if the wife and R.S. were to engage in an ongoing incestuous relationship to which the minor children were exposed, directly or indirectly, then at some point there would be a direct and articulable adverse impact on the children. See Fort v. Fort, 12 Mass. App. Ct. at 414-417. In these circumstances, it would be error to omit such an essential prophylactic measure to safeguard the well-being of the children, especially one that was already in place and relied on by the judge and other experts at the award of physical custody. (at 18- 19).

Comment: This was an interesting opinion because of the unusual nature of the fact pattern. It would have been interesting to see what the judge might have ordered, if Father had been reasonably involved as a parent and, among other misjudgments Father made after he obtained temporary custody, had not left all the parenting functions to his girlfriend. It strikes this writer that Mother’s conduct with respect to her incestuous relationship is akin to other forms of adult behavioral problems that include, but are not limited to, such things as substance abuse or other addictions (Internet pornography being a more recent one), extra-marital affairs, mental illness, and the like. The test is whether there is some demonstrable or reasonably predictable connection (or as the Court put it, “nexus”) between the behavior and its effect on the children. The variable between the conduct and the children’s response is that of parenting function, and the research shows that this “mediating” variable is critical to understanding the connection between the (mis)conduct and children’s responses. In B.B.V., the Appeals Court noted that not only were the children protected from the incestuous relationship by Mother, but also multiple evaluations indicated no exposure, no harm, and no trauma. In effect, the court found that Mother’s conduct with her father had not compromised her more-than- adequate parental functioning, even when she did not have custody of the children, and that was reflected in how well the children had been doing.

What was also informative was that the Appeals Court reminded the trial judge that it was his responsibility to consider “the probable future,” where he could reasonably have predicted future damage to the children, and his responsibility, therefore, to make some order related to that “probable future.” In cases with problematic behavior by one parent, when there is data that informs about future outcomes, it is useful to communicate that information to the court, so that the judge can consider it among the different scenarios he or she could eventually order. Henry Bock noted that, were the children older, they could have been more affected by simple knowledge of their mother’s illegal relationship (even if they did not witness anything) or by social stigmatization among their peers were the facts of that incestuous relationship to become public. Alex Jones suggested that this might have been the very reason the Appeals Court remanded the case to the trial court, in order to set in place those protections. This case also reminds us, as the Court has noted before, that its focus is on children’s needs and interests. It is not the goal of the Court to punish parents for misconduct (as one spouse would sometimes desire), as long as there has been some wall of protection that the so-called “offending” parent has erected between the behavior and his or her parenting.

DIANE LYNN VENTRICE V. MICHAEL CHARLES VENTRICE

Massachusetts Appeals Court

87 Mass. App. Ct. 190 (2015) at: http://masscases.com/cases/app/87/87massappct190.html

Keywords: Divorce, Separation, Child Custody, Parenting Coordination.

GAL/PC Highlights: In this case, in an Amended Judgment, the trial judge ordered the parties to engage in court-ordered mediation before filing any action about a dispute in court, the costs of which to be shared equally. Bower v. Bournay-Bower (2014), had not been decided at the time the Amended Judgment was issued, so the judge did not have access to that opinion. As in Bower, the Court noted that the Amended Judgment order violated the parties’ free access to the courts. In addition, the Court vacated the judge’s decision to award sole legal and physical custody to Mother of three of the parties’ four children and remanded the case back to the trial court for further review. The basis for this determination was that the judge failed to consider relevant evidence in the record, including the GAL recommendation that supported custody to Father.

Background: This was a 2001 marriage that produced four children, between five and twelve years old at time of trial in spring 2012. All of the children had some special needs (e.g., ADHD, asthma). The couple owned a business and they took turns in child care and working in the business. For four years, Father was the primary caretaker, and later Mother assumed that role. During the divorce period, Mother began a relationship with a convicted sex offender. The man was supposed to have no contact with the children and to undergo a sexual predator evaluation. Mother violated the order by allowing him to be with her with the children before this evaluation “seemingly without concern.” (at 191). As part of the custodial dispute, a GAL was appointed, interviewing the parties, the children, DCF workers, school counselors, and therapists, among others. The GAL recommended sole legal and physical custody to Father, who was “the more stable parent,” and “more easily accessible” to the children per his work schedule. (at 192). His environment was more stable and “clean and orderly,” in contrast to Mother’s situation and residence. The Judgment post trial awarded sole legal and physical custody of the oldest child, a girl, age 12, to Father, and of the three younger children to Mother. In addition, the judge ordered the parties to submit to mediation before filing any further action before the court, such mediation to be paid equally by the parties.

Legal Issues:

1. Mediation: As in Bower, the Court found that the required mediation interfered with the parties “free access to the courts,” meaning that, absent agreement by the parties for mediation, only a judge has the authority to resolve a disputed issue and parties cannot be ordered to submit to that mediation process. In Bower, the trial judge ordered the parties to submit disputes to a privately-paid parenting coordinator, selected by the judge, despite the objection of one party. As in Bower, the order here reflects “an unconstitutional burden on the parties,” (at 193), as it delays filing any action in court until the mediation has been tried. In remanding the case back to the trial court, the decision suggested that the judge could order mediation (but not necessarily require payment for same), but she could not condition access to the court on attending such a service. The opinion notes that any court-appointed mediator could offer a recommendation to the court, but a judge was not bound by that.
2. Child custody: The Court agreed with Father that the judge abused her discretion by ignoring clear findings from trial and the GAL report that would have supported a decision of custody of all the children to him. There is a range of evidence a court can consider, “including the reports and testimony of a court appointed investigator or GAL, evidence of the history of the relationship between a child and each parent, evidence of each parents (sic) present home environment and over-all fitness to further the child’s best interests, and the judge’s own impressions upon interviewing the child privately in chambers.” (at 194). In the instant case, the judge minimized Mother’s failings as a parent with respect to discipline and her chaotic home environment. The judge also neglected to credit much of the negative information about Mother from the GAL report, which demonstrated “clear health and safety concerns” (at 195), among other parenting deficiencies manifested by Mother. The documented evidentiary contrasts between Father’s strengths and Mother’s weaknesses seemed stark, so the Court was unable to understand why the judge failed to follow the GAL recommendations that supported custody to Father. The judge failed even to consider Father’s parenting strengths in her findings, thus reflecting “a clear error in judgment in weighing the factors relevant to the decision.” (at 196).[1],[2]

In remanding back to the trial court, the directive was to better substantiate the prior Judgment, or to explain why much of the relevant evidence was not considered. Essentially, given the competent GAL report that was not factored in, “more is required to support the judge’s determination.” (at 196).

Comment: It seems self-evident (so, you may ask, why note it?) that this case stresses the significance of a thorough and detailed GAL assessment process and report, including per most standards, a multi-sourced set of facts, interviews with each child, and parent-child (and in this case, home) observations. In this case, the Appeals Court used the GAL report to demonstrate that the trial judge had either neglected to reference in her decision important information related to Father’s abilities, and simultaneously, minimized many parenting and personal deficits of Mother. Obviously, the GAL has no control over what information a judge considers, but in this case there would have been no required review/remand without the detailed information included in that GAL report. While a GAL does not always know what in his or her work was useful or effective in the outcome of the case, this decision makes one optimistic about the court’s value of that work.

D.B. v. J.B.

Massachusetts Appeals Court

97 Mass. App. Ct. 170 (2020) at: http://masscases.com/cases/app/97/97massappct170.html

Keywords: Child Custody, Domestic Violence, Rebuttable Presumption

GAL/PC Highlights: This divorce proceeding included issues of alimony, child support, and child custody. With respect to the last issue – and relevant to evaluators – was that the Court affirmed the trial judge’s findings and opinion with respect to the issue of legal custody of the minor children, reversing what had been the status quo after the parties separated (upon an incident of domestic violence) and disregarding the recommendations of a GAL evaluator (and his consultant). In this case, J.B (Mother) had to overcome the rebuttable presumption that a parent who had committed an act of domestic violence (i.e., threatening Father with a knife) should not have decision-making responsibilities for the children (i.e. legal custody). The findings supported the rebutting of the presumption as well as the trial judge’s finding that Mother was to be the primary residential parent of the two minor children. The case is also significant for the judge’s criticism of and disregard for the GAL’s recommendation on the basis of bias toward Father and for failure to report disclosures made by the children about Father’s behavior toward them. In this case, the judge and the appellate court noted that the GALs did not adhere to the court-approved standards and acted “outside their roles.”

Background: Married in 1998, the parties had three children, one of whom was over 18 at the time of the Judgment in 2018. They had separated previously in 2011. At that time, D.B. (Father) filed a complaint for divorce, but they then reconciled. Almost two years later in May 2013, they again separated, and Father followed up with his divorce complaint. The precipitating event for the separation was Mother’s threatening Father with a knife, after which he obtained an ex parte abuse prevention order (i.e., 209A). Mother left the marital home after that incident and the children resided primarily with him, although the eldest lived with her for a short time from September 2015 to January 2016, but then moved back to live with Father in the marital home. As the parties had significant resources (which funded a 15-day trial), most of the decision relates to alimony and child support issues.

While both parties were educated, Mother became an at-home parent after the first child was born and remained so for the duration of the marriage. She also engaged in activities that furthered Father’s business interests, or as the trial court Findings noted, “significant noneconomic contributions” (at 172) to Father’s successful career in finance. As the children got older, the parents hired household help, but the primary administrator of that help and planning for the children’s needs was Mother.

In October 2013, five months post final separation, the parties agreed to allow a GAL investigation and evaluation related to the care and custody of the children. A second (consulting) GAL was appointed to investigate and consult with the first GAL (reporting GAL). They jointly filed a report in December 2014, almost 14 months later, with recommendations written by the first GAL. In the opinion, the Court cited the trial judge, who concluded “after hearing the trial testimony of the reporting GAL and the wife’s expert, that both GALs had failed in their investigations to comply with mandated GAL standards, and had acted outside of their roles as objective evaluators.” As a result, the judge determined that the GAL’s conduct undermined any perception of impartiality and created the impression that they were biased in favor of the husband – which had a detrimental impact on the children.” (at 174). In addition, they omitted relevant information from the children (about physical abuse of them by Father) and collateral sources, and also misrepresented the information obtained from some collateral witnesses.

Disregarding the GAL recommendations, the judge found that Mother had been the primary caretaker during the marriage, had been very sensitive and conscientious about the children’s medical issues (allergies, etc.), and importantly, found that “the presumption against awarding (Mother) shared legal and physical custody had been rebutted…” (at 175). (See discussion in K.A. v. T.R., this volume at 112). In Footnote 7, there is a discussion of the trial judge’s reasoning. The judge found the knife incident did constitute a “serious incident of abuse,” which put husband in “reasonable fear of imminent serious bodily injury.” However, she concluded that for several reasons, including the children’s stated wishes to live with Mother, they were “intelligent, mature, and capable of articulating their wishes and desires,”  and she afforded their wishes “significant weight.”[3] She noted that Father had placed significant limitations on Mother’s ability to have a relationship with the children, which had a negative impact on them. Despite that “negative impact,” she also found that the children had “thrived” in his care and did not want to limit his contact with them. She recommended the children “enjoy liberal parenting time with both parties within the parameters of the children’s respective schedules.”

The latter part of the opinion focused on custody. Father, who had appealed the decision, argued that the judge disregarded the GAL recommendations, which had favored him. The Court then restated opinions from prior cases that the determination of best interests is entirely “within the discretion of the judge,” who “may consider any factors pertinent to those interests,” and is required to “draw her own conclusions in deciding a case.” (Sagar v. Sagar, 57 Mass. App. Ct. 71, 79 (2003)). The judge found specious Father’s argument about Mother’s unwillingness to communicate with him about the children, because his abuse prevention order and subsequent no contact order prevented her from doing so.[4]  As to disregarding the GAL findings and recommendations, the judge had dismissed that whole body of work, because of the egregious nature of their behavior during the investigation. The Court remanded the case back to the Probate Court for a review of the alimony findings but affirmed the decision regarding custody.

Comment: While it is impossible to discern the depth and breadth of what appears to be very unprofessional behavior by the GALs in this case, the message would appear to be, at a minimum, to adhere to the GAL standards promulgated by the court. I would add that adherence to the custody evaluation standards or guidelines of one’s profession, if they exist, is also necessary. One other practice issue is that it is important to assess not only the immediate behavioral context of an incident of domestic violence, but also the historical context. In this case, all the other facts that came to light allowed Mother to overcome the presumption against shared caretaking and decision-making for a perpetrator of domestic abuse. There was no discussion in the decision as to the antecedents of her threatening Father with a knife, so it is hard to know her motivation within the overall family context. It is interesting though, that, despite Mother’s abuse incident (against Father) and reports by the children of their Father’s abuse of them (when he was the sole parent), the judge awarded joint legal and physical custody to the parents (with the exception of allowing Mother to make medical decisions in the event of disagreement). The only reference in the opinion to their potential for cooperation was an observation by the judge that, “eventually, they were able to work out a flexible parenting plan,” (at 182) after each struggled with giving primacy to the children’s needs. This case leaves the writer with the impression that both adults, despite significant resources, had important flaws as parents, but were “good enough” parents for the court to order a shared parenting arrangement.

E.K. v. S.C.

Massachusetts Appeals Court

97 Mass. App. Ct. 403 (2020) at: http://masscases.com/cases/app/97/97massappct403.html

Keywords: Custody, Removal

Highlights for GALs: This case of never-married parents of a child, who was nine at the time of trial (2016), is unusual in that it seeks to establish a removal standard where the father had previously moved to New Hampshire, saw the child consistently on weekends in MA, and sought to modify the custodial arrangement (due to inadequate parenting by mother), as well as to relocate the child primarily to his home.

Background: As noted above, the child of the above parents was born in December 2007. It was not until February 2010 that paternity was formally and legally established. The parents shared major decision-making responsibilities, but the child lived primarily with Mother (S.C.). Father (E.K.) had parenting time one weeknight/week and alternating weekends. In their Agreement, neither was to move the child out-of-state without written consent of the other or an order of the court (Essex, in this case).

One month after he established paternity, Father moved to New Hampshire, at the same time limiting his parenting time to alternating weekends. Noteworthy is that the child was diagnosed with special needs, including ADHD and mood dysregulation. In October 2014, he started in a special program in school for the purpose of increased emotional and educational support. He worked with a pediatric psychologist/therapist and was on non-stimulant medication for his attention disorder and a mood stabilizer (Risperidal), the latter of the two having potentially serious side effects. The child attended therapy regularly between September 2012 and June 2014. After a hiatus from therapy for a year and a half, he began again in February 2016.

During said hiatus, Mother’s relationship and cooperation with the school deteriorated and became “problematic.” (at 405). She became disruptive, demanding, and tried to remove the child from class. In January, 2016 (just before the child re-started therapy), Father filed a complaint for modification, alleging the above problems with Mother’s interactions with the school, but also claiming that she stopped the child’s meds; took him out of the special needs program without Father’s consent; and that her residence was not fit for habitation. Three weeks later, in February 2016, Mother counter-filed, seeking sole legal custody.

During that ensuing year, Mother’s conflict with the school escalated, such that on one occasion in March 2016, the principal called 911 and put the school into lockdown. At that, Mother left the school grounds, but later that day she brought the child to the police station to be interviewed. The child alleged a teacher assault, but an investigation determined the claim to be unfounded. Mother was also very disorganized (as was her home) and she also allowed the child to be tardy over 72 times in three years. DCF had been involved with the family occasionally since 2008 and there were nine 51A reports accumulated by 2016, all screened in and three supported for abuse. Father was the subject of four 51As, one screened in, and ultimately not supported.

In addition, the child’s therapist resigned, stating that Mother was repeatedly urging the child to make negative reports about Father, which undermined her role as therapist. In that same month, two more 51A’s were filed. The child had been hospitalized with threats of self-harm and he disclosed that Mother withheld ADD medication, kept him up all night so that he missed school, and slept in the same bed as he. He had also behaved sexually inappropriately with a teacher at school, rubbing his buttocks against her legs. DCF again opened the case and supported the allegations. The agency concluded that Mother’s mental health problems interfered with her judgment, as evidenced by the inappropriate issues she discussed with the child, her irresponsibility with his therapy appointments, and her failure to comply with the child’s medication regimen.

The Court appointed a GAL to assess the family. In the first report, the GAL had issues with each parent’s behavior, but noted that Father set reasonable limits on the child, although he had not adjusted his work schedule to spend more time with the boy. On the other side of this, Mother was still co-sleeping with the boy (then 8), and the GAL noted all the other deficiencies by Mother stated above. However, the recommendation of the first report was for Mother to continue as primary residential parent, but left the door open for reconsideration, if Father presented a plan to meet the child’s needs if removal to NH was granted. The other recommendation was that, irrespective of who had physical custody of the child, the Father should have legal custody, including decision-making authority over health (including mental health) and educational issues.

On February 1, 2017, shortly before the trial was to start, the GAL filed a second, updated report. The GAL reported that, since his first report, the father had moved in with his fiancée who was a speech and language pathologist in the New Hampshire school system and could care for the child after school. In addition, the father provided the GAL with information about the school the child would attend in New Hampshire (an appropriate special education program with early morning and after-school programs), and the names of mental health providers for the child. The GAL also recommended that Father be awarded sole legal and physical custody of the child, since mother had not modified any of her previously developmentally harmful behaviors, other than ceasing to sleep with the boy.

After five non-consecutive days of trial, Father filed an ex parte motion for a temporary order (pending the Judgment) for sole legal and physical custody in New Hampshire, cessation of his child support, and supervised parenting for Mother. He claimed further problems between Mother and the boy’s current school and her inability to engage with or cooperate with school personnel. The Court rescheduled for a short-notice hearing where parties and counsel appeared. After that, in May 2017, the Court granted Father’s motion for physical custody and residence in NH, permitted school enrollment there, and established a (non-supervised) parenting plan for the boy. Legal custody was not changed. The Judgment and Findings issued in October 2017, effective as of May 22, 2017.

As to custody, the Findings supported a material and substantial change of circumstances, documenting the many instances of Mother’s destructive relationship with school and mental health professionals, all otherwise essential to meeting the boy’s educational and emotional needs. Her actions were clearly not in his best interest. In addition, she took the child to the hospital unnecessarily and used DCF as leverage against Father. In her appeal, Mother did not contest the Findings themselves, rather the weight the judge gave to them. In comparison, the court deemed that Father’s parenting and decisions were appropriate for meeting the child’s complicated needs, psychologically and educationally, and his was the more stable environment for the boy.

As to removal, the Court briefly reviewed the different standards that depended on the prior custodial arrangement (Yannas v. Frondistou-Yannas, 395 Mass 704 (1985) or Mason v. Coleman, 447 Mass 177 (2006). Neither was applicable, since in E.K., the trial court shifted custody from Mother to Father, who had already been a long-time resident of NH. While Yannas is not relevant in this instance, the trial judge must still examine the motivation for an out-of-state move and whether there was intent to interfere with the non-moving parent’s time with the child and what benefits accrue to the child living in (in this case) the NH community. As this was not the case here (the move to NH was “long before any custody modification proceeding was contemplated”), a second factor is whether the moving parent has become established in his or her new community. If the latter, that would constitute a “real advantage” to that parent, but further inquiry would be needed into employment, financial, and housing status, as well as the social and emotional benefits of that out-of-state residence. Thus, once Father demonstrated a “good, sincere reason” (Yannas at 711), for the move, the Court would shift to a ‘best interest’ analysis, and how that proposed move would affect both parents and the child.

Drawing some similarities to Prenaveau v. Prenaveau, 75 Mass. App, Ct. 131 (2009), the trial judge appropriately found “compelling evidence” (at 411) that the move was in the boy’s best interest, despite some likely short-term distress due to the separation from his mother and adjustment to a new home[5]. The parenting plan that the judge ordered simply reversed the parenting times, so that the boy would see his mother about the same times he had previously seen his father.

The Appeals Court found neither any judicial abuse of discretion nor error in law. The circumstances of Father at the time of trial clearly provided many advantages to him and to the child, including more parenting time with the boy. It is interesting that the opinion did not delve into the clear disadvantages to the child of remaining in the primary care and custody of his mother, who was doing the child a disservice by her behavior, some of which may have been due to psychiatric dysfunction. With respect to the “best interest” analysis, the Appeals Court affirmed that the trial judge attended to such relevant factors as:

• What improvement in quality of life generalizes to the child from that of the parent
• Potential effects of separation (or more limited contact) from the non-moving parent
• The effect of the move on the child’s emotional, social, and physical development
• The interests of both parents
• Any alternative parenting schedule for the non-moving parent

Mother objected to the weight the judge gave the benefit of the move versus the stress that change would create. However, the Appeals Court would not insert its judgment where there was no abuse of discretion or clear error on the part of the trial judge. The Appeals Court reiterated that it would not alter the trial judge’s determination that Father had the superior ability to meet the complex needs of the child.

Commentary: The uniqueness of this case resulted from Father already being an established resident of a NH town for some time, while maintaining regular contact with his son, who lived in MA. When Mother’s parenting became dysfunctional and her parental responsibilities for the boy’s complex health and educational needs became compromised (due, perhaps, in part to her psychiatric problems), Father moved to seek custody and the care of the boy in NH. His establishment in his community, his relationship with his fiancée, and his proposals for the education and therapy for the boy were factors that clearly benefitted the child, whereas Mother was headed in a damaging direction. It was clear that this removal request was not intended to disrupt the Mother-child relationship.  The “real advantage” to the Father – which was deemed to generalize to the boy – involved a consideration of those factors related to his job, residence, income, and psychological and educational opportunities available for the boy. The interesting aspect of this removal case was its use of the “real advantage” standard – determining what was a real advantage to a parent who already had moved some time ago and established himself in another state. The removal was, in fact, secondary to his seeking custody, due to the inadequate and harmful parenting of Mother. It struck me that the Court could have simply taken a page from Miller v. Miller 478 Mass 642 (2018) and just done a best interest analysis. The fact pattern was such that it almost spoke for itself.

REMOVAL

DAISY M. HALE V. NATHAN B. HALE JR.

Massachusetts Appeals Court at: http://masscases.com/cases/app/12/12massappct812.html

12 Mass. App. Ct. 812 (1981)

Keywords: Divorce and Separation, Child Custody, Removal from the Commonwealth.

Background: The parties married in 1961. The husband was a career serviceman in the Air Force, and he had accepted and completed assignments in New York, Oklahoma, Germany, and Vietnam. The wife lived with her aunt when the husband was in Viet Nam. Three girls were born during the marriage. In 1971, the family moved to Massachusetts because the Husband accepted an assignment here. The parents separated in 1972. Mother wanted to move to California to live near her sister and other family members, which she felt would be more advantageous to the children. She planned to rent her sister’s home, as the sister was purchasing a new house in the same community.

Mother was a state employee in Massachusetts and was eligible for a Federal job in California, one with a greater potential for career advancement. Father had retired from the Air Force and had a good job in Massachusetts. He had an excellent relationship with his daughters, one of whom was 18 and had moved in with him after the separation, due to a strain in her relationship with Mother. None of the children wanted to leave this locale. After a trial on the merits, the trial judge denied Mother the right to take the two younger girls to California. The rationale was that the move would hinder Father and prevent him from continuing to have the excellent relationship he had with the children. Another reason was that the siblings had good relationships amongst themselves and the judge did not want them separated. The court determined that it was not in the best interest of the children to move.

The Appeals Court, in reversing the decision, stated that the judge’s rulings pertained primarily to Father’s relationship to the children and to the inter-sibling relations, but had little focus on 1) the relationship of Mother to the children, and 2) the effects on the children of the advantage or disadvantage of the move except as this affected the relationship with Father. The judge also said nothing about alternate visitation possibilities, if Mother were to take the children to California.

The trial judge also based his opinion on the need for “frequent and continuing contact” as cited in Felton v. Felton, 383 Mass. 232, 239 (1981),²⁵ but the Appeals Court said, “We consider that factor not in itself conclusive.” (Hale, at 815). The Court cited the basis for removal in Ch. 208 § 30, noting that a child cannot move out of the state without consent of the other parent “unless the court upon cause shown otherwise orders.” (emphasis added). It noted that Felton also cautioned that “best interests” might involve “some limitation of the liberties of one or the other of the parents (Felton, at 233). The Court required the trial judge

25 Felton’s major issue was parental religious differences, nor removal.

to write comprehensive findings regarding issues of harm to the children and what is in their interests. The Court cited a New Jersey case, D’Onofrio v. D’Onofrio, 144 N.J. Super. 300 (1976), that declared, “the well-being of the custodial parent must be considered in determining the best interest of the child.” The Court referenced the idea that the custodial parent and the children form a “new family unit” 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 interest of the children. The Court noted the idea that the interests and well-being of children are closely interwoven with those of the custodial parent is consistent with psychological studies of children of divorced or separated parents.

Tessman (1978) Children of Parting Parents, at 516 and Wallerstein & Kelly (1980),

Surviving the Breakup, at 114, 224-225.

The case noted (Hale, at 818) the factors “which should be weighed in determining whether removal should be allowed.” These included:

• “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 noncustodial parent…
• 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 noncustodial parent if removal is ”

The Court noted that, if there are advantages to the custodial parent that would improve the quality of life of the children, these should not be sacrificed solely to maintain the weekly visitation by the Father. The Court said that longer, but less frequent visits “may well serve the parental relationship better than the typical weekly visits.” (Hale, at 819). The trial judge erred by considering only the impact on Father’s weekly visitation, but did not consider (Hale, at 820):

• The advantages with respect to the emotional well-being of the family unit as a whole;
• The emotional costs of forcing a stressful family and career choice (if such be the case) on the parent with primary responsibility for the daily care of the children;
• Alternate visitation schedules that would preserve and foster the important relationship of the children with the Father;
• Decreasing child support to assist in the costs of visitation; and
• That the preferences of the children (ages 9 & 13) were to be viewed with caution (citing Wallerstein and Kelly (1980), Surviving the Breakup at 314-315)

Comment: This is really the first case in the line of cases related to removal from the Commonwealth. It highlights the legal advantage of being the custodial parent and characterizes the children and custodial parents as a “new family unit.” While not labeling the “real advantage” standard as Yannas later did, it provided the basis for that standard by prioritizing the benefits of the proposed move to the custodial parent among the factors to be considered. It also suggested that alternate schedules for Father-children contact could be created to “preserve and foster” that “important relationship.” That idea also was inconsistent with the decision in Felton requiring “frequent and continuing contact” between non-custodial parent and children, reasoning the trial court used that the Appeals Court rejected.

One interesting aspect of this case was its use of social science research (e.g. Wallerstein, Tessman) to buttress its argument that the interests of the children of the custodial parent are related to the well-being of that parent, but failing to note that there was no data to support its opinion that alternate schedules could “preserve and foster” the “important relationship” of  the children and the non-custodial parent. The appellate court seems to have an ambivalent relationship toward social science research. It uses what supports its decision and ignores what does not, despite the issue of whether the research it cites is good or not. As for the research itself, there has always been controversy about the extent to which the Wallerstein and Kelly study was generalizable. To be fair, this opinion was written in 1981, just a year after the book was published.

Another aspect of the decision suggests how complicated and case-specific these determinations are.²⁶ The Court indicated, as noted earlier, “the custodial parent and the children form a “new family unit” 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 interest of the children.” As counterpoint, around that time, Constance Ahrons was studying families in San Diego as they moved through the divorce process.²⁷ She coined the term “bi-nuclear family, which meant that, post-separation, the family consisted of not one but two new family subunits – the child(ren) and each parent. In favoring the children and the custodial parent, it made removal easier for one family unit at the expense of the   other. Thus, While Hale, tries to parse out the individual factors in this complex “formula,” it begs the question of how an investigator or evaluator would weigh the relative benefits and costs of any proposed move in making a recommendation to the Court.

26 Alex Jones commented that a GAL could minimize some of the challenges in getting relevant evidence before the court by researching such issues as the quality of the target school district, opportunities for religious observance (if pertinent), and competent medical care, as needed, among other aspects of daily living in a new location. If a child has special needs, information about what school resources exist would be important to impart  to the court.

27 Ahrons, C. (1979). The binuclear family: Two households, one family. Alternative Lifestyles, 2, 499; Ahrons,

437. (1980). Redefining the divorced family: A conceptual framework for post-divorce family systems reorganization. Social Work, 25, 437.

IONNIS V. YANNAS v. STAMATIA FRONDISTOU-YANNAS

Supreme Judicial Court of Massachusetts

395 Mass. 704 (1985) at: http://masscases.com/cases/sjc/395/395mass704.html

Keywords: Custody, Visitation, Removal, Best Interests.

Background: The husband and wife were married in Athens, Greece, in 1968. The husband  was born in Greece, came to this country as a student in 1953, and became a citizen of the United States in 1976. The husband studied in this country and was a world-renowned scientist. The wife was also born in Greece. She came to this country in 1969, following their marriage, and also became a citizen of this country in 1976. She studied first in Greece, but also received a degree in civil engineering from M.I.T. in 1970 and in 1973 received a   master’s degree from M.I.T.’s Sloan School of Industrial Management and a doctoral degree in civil engineering from M.I.T. She was an internationally recognized expert on the properties   of concrete and construction economics. They had two children born in Massachusetts, a daughter in September 1973, and a son Alexis in May 1977. They maintained their Greek identity and culture; the children were bilingual in Greek and English and continue to attend Greek school. They traveled regularly to Greece between 1975-1981. The husband had traveled to Greece himself every summer between 1969 and 198, maintained an interest in an apartment and cemetery tomb in Athens, and had often lectured there. The Court recited the extensive history of the family in Greece, noting that the wife was licensed engineer in   Greece, but not in the US. She had a job offer that would “provide her with opportunities for professional growth and with greater financial security than she could obtain in this country,” (at 707), while her search for work in Massachusetts had not been successful. Mother also was entitled to a pension in Greece and could use property she owned there. The Greek court would likely enforce US custody orders. The children were accepted at an excellent school in Athens, which the daughter attended and did well when Father spent two sabbatical years in Greece between 1978-80. The children, who expressed their wishes to remain in Newton and vacation in Greece during summers, made friends easily and were familiar with Greek culture. Extended family from both parents lived in Greece.

The SJC wrote:

From his basic findings and from his consideration of the evidence, the judge arrived at several more general conclusions. If the wife is unemployed, the parties’ standard of living will fall when they attempt to set up two households. The husband and wife are responsible and can communicate in regard to the children. The wife feels an increased sense of personal security in her native land. A move to Greece will enhance the children’s exposure to their Greek heritage and language. The children will not encounter a language barrier or “culture shock” from such a move. The continual stress on the wife and her unhappiness if she must stay here will probably have an adverse effect on the children. The wife has stated that she will make every effort to see that the children continue to be close to their Father. (Yannas, at 707)

The judge granted Mother physical custody of the minor children and joint legal custody to the parents. He further allowed her to take the children to live with her in Greece. Father received the right to six weeks in the summer, one week at Christmas and one week each Spring, cost of transportation shared equally. Father argued that the judge should have awarded shared physical custody (emphasis added), which (he asserted) was presumed in the law, but the Court rejected that argument.

With regard to the move, the judge applied the less strict standard²⁸ of Hale v. Hale, 12 Mass. App. Ct. (1981), which followed the New Jersey case of D’Onofrio v. D’Onofrio, 144 N.J. Super. 300 (1976). In contrast, New York at the time allowed a move only in exceptional circumstances. The SJC designated this as the “real advantage” standard and said it was “grounded on the realization that after divorce a child’s subsequent relationship 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.” Citing Cooper v. Cooper, 99 N.J. 42 (1984) at 53. If the parent showed a “good, sincere reason” for the move, all of the other relevant factors must be considered as a whole, but no single factor would be pre-eminent in the determination. “Every person, parent and child, had an interest to be considered.” The SJC also cited Cooper at 54, “because the best interests of a child are so interwoven with the well-being of the custodial parent, a determination of the child’s best interest requires that the interests of the custodial parent be taken into account.”

The SJC listed the issues that must be evaluated in removal cases. They included consideration of the child, the custodial parent and the non-custodial parent’s interests. As to the interest of the child, it delineated the following issues:

• Whether the quality of the child’s life may be improved by the change (including any improvement flowing from the 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 effect the emotional, physical, or developmental needs of the

The following issues relate to the interest of the custodial parent:

• The relative advantages to the custodial parent from the move;
• The soundness of the reason for moving;

28 That is, compared to the New York case law at the time. There is an extensive discussion about this in Tropea v. Tropea, and Browner v. Kenward, #1&2, Court of Appeals of New York, 87 N.Y.2d 727 (1996). In Tropea, the custodial parent wanted to move 2½ hours away within the state for apparently sincere reasons, but the Family Court denied the request. The justices noted that earlier case law held that, if there was a showing that a proposed relocation could result in a disruption of “regular and meaningful access” to the children by the non-custodial parent, then that would trigger a presumption that the move was not in the best interests of the children. The custodial parent then had to demonstrate that there were “exceptional circumstances” that necessitated the move to overcome that presumption. If the custodial parent could support the claim of “exceptional circumstances,” the court would then consider the children’s best interests. Reversing the Family Court in Tropea and Browner, the New York Appeals Court stated that the lower courts had not theretofore settled on a consistent definition of “meaningful access,” such that distance or travel time for visitation was comparable from case to case. In dispensing with the threshold issue above, they held… “each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.” (Tropea, at 739).

• The presence or absence of a motive to deprive the non-custodial parent of reasonable visitation; and
• Whether the custodial parent is likely to comply with visitation

The issue related to the non-custodial parent was:

• The reasonableness of the alternative arrangements. The fact that visitation by the custodial parent will be changed to his or her disadvantage cannot be

That the move might be to the advantage to the custodial parent, did not automatically mean it was in the child’s best interests. However, the factual “formula” by which one weighed the child’s best interest required consideration of the benefit of the proposed move to the custodial parent. While earlier decisions had denied removal for the “best interests of the children,” the SJC referred also to Felton v. Felton, 383 Mass. 232 (1981) which stated that “when the parents are at odds,” the attainment of “best interest” involves “some limitations of the liberties of one or other of the parents.” (Yannas, at 781).

The SJC referred again to the New Jersey case of D’Onofrio, as the Appeals Court  did  in Hale, promoting the idea that the children and custodial parent comprise a “single  family  unit,” and that “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.”²⁹

In the footnotes, as the Appeals Court had done in Hale, the SJC stated that its finding was consistent with research demonstrating the correlation of the mother’s well being and the adjustment of the children after divorce (from Wallerstein and Kelly, Surviving the Breakup, 1980).

In its findings, the SJC said, The judge properly recognized the standard to be applied and made findings of fact consistent with that standard. Certainly, the move to Greece would be to the advantage of the wife, financially, emotionally, and socially. The children should benefit from that advantage and can strengthen their ties to family and to Greek culture. They will receive excellent schooling in Greece. Additionally, the husband has large blocks of free time, and travels to Greece often. The children can visit this country every year. They will not lose their American citizenship or the opportunity to attend college in this country and to settle here permanently. In these circumstances, it was not an abuse of discretion or an error of law to authorize the wife to remove the children to Greece. (Yannas, at 712).

Comment: This was the second rung on the legal ladder of removal cases. It concretized the “real advantage” standard as the focus around which fact-finding must revolve. It solidified that idea, begun in Hale (above) that the children’s interests are, to a great extent, derivative

29 Packenham at 92 (2004) noted that this was a landmark case regarding custody issues. He stated that the SJC decision meant that G.L c. 208 §31 created no presumption favoring joint physical custody and applied the “less strict ‘real advantage’ standard in permitting removal.” of the custodial (or primary residential) parent’s interest, because they comprise the “new family unit.” It seemed to this writer that, in order to “interweave” the interests of the children with that of the custodial parent, absent any supporting data, it continued a theory it started with Hale that alternate visitation plans can compensate to some extent for the regular contact between children and non-custodial parent. It also reinforced the idea that the parent with physical custody had a  legal  “advantage” vis-à-vis the non-custodial parent, if he or she wanted to move out-of-state.³⁰ There was more research by that time that affirmed the findings of earlier studies that the adjustment of children was correlated with the stability and well-being of the primary parent, typically the mother. Survey and longitudinal research was beginning to emerge, however, suggesting that distances of an hour or more between the residence of children and their non-custodial father was detrimental to ongoing contact between them and could damage those bonds.³¹  This tended to weaken the assumption of the appellate courts that longer but less frequent visitation periods would compensate for the lack of regular and frequent contact. Those findings had  little impact on removal cases, as far as could be determined. This raises an issue regarding the nature of the attachment of very young children to the non-custodial parent, if the custodial parent were to move away. It would seem that would create at least a psychological dilemma whereby a GAL would have to explore the balance between the emotional (and possibly economic) benefits to the minor child of moving with their custodial parent and the developmental significance of having a secure attachment to the other parent. That is a scenario that begs for a developmental cost/benefit analysis to the young child with respect to any proposed move.

Yannas brought about another change in the way removal cases are framed. Previously, the burden of proof was on the moving parent to show that the relocation was in his or her interest as well as that of the children. After Yannas, the burden shifted to the other parent to show why the proposed move was not in the interest of the children, particularly after the moving parent had demonstrated a sincere reason for the move. Yannas is the controlling case with respect to removal issues, while the next case, Rosenthal, provides an organizational framework to sort out the facts that are subject to a “real advantage” test.

30 It is reasonable to believe that one “real advantage,” in lay terms, to the parent with physical custody is that it would permit that parent to use the legal “real advantage,” if he or she were to desire to move away. As a corollary, it is reasonable to believe that this would be one reason for the other parent to seek shared physical custody at the time of divorce, particularly if he or she had any basis for believing that the other parent might wish to relocate.

31 Furstenburg, F. Jr., Nord, C., Peterson, J. & Zill, N. (1983). The life course of children of divorce. American Sociological Review, 48, 656; Maccoby, E. & Mnookin, R. (1992). Dividing the child: Social and legal dilemmas of custody. Cambridge: Harvard University Press. at 183-84.

AMY RAWSTRON ROSENTHAL v. PAUL MANEY

Massachusetts Appeals Court

51 Mass. App. Ct. 257 (2001) at: http://masscases.com/cases/app/51/51massappct257.html

Keywords: Divorce and Separation, Child custody, Modification of judgment, Custody, Removal from the Commonwealth.

Background: This was the third in a line of removal cases and the one that provided the most detailed method of analyzing fact patterns. Since it includes cites from earlier cases, it shows some of the historical reasoning. In this case, the parents had married in November 1987 and had a boy, Caleb, in June 1991. They resided in Northborough, where extended family on each side lived, including two sets of grandparents. They then separated in 1995 and divorced in January 1997. Mother had been employed since 1990 by the Rhode Island Philharmonic Orchestra as a violinist, and commuted to her job in Providence from Northboro, but was still the primary caretaker. Father was a service manager in a business owned by his family. As a result of the divorce action, she had primary physical custody and the Father had time with Caleb on alternating weekends and two overnights during the week. Their schedule was such that Father had substantial time with their son, or six of every fourteen days (about 43% of the time). After the separation, mother moved into an apartment with Caleb in Shrewsbury and Father into an apartment in his parents’ home. Caleb started pre-school in Shrewsbury. During the separation period, Mother met Mr. Rosenthal. On June 23, 1997, Mother filed a complaint for modification of the original divorce judgment, in which she sought leave to remove Caleb from Shrewsbury to Providence, Rhode Island. On July 4, 1997, she married Rosenthal. On July 8, Father filed a counterclaim, alleging that removal would limit visitation with his son, “disrupt the warm and close personal relationship between the [Father] and his son and is not  in his son’s best interests.” On this basis he requested physical custody of Caleb. On July 28, 1997, the court appointed a guardian ad litem to act as an “investigator to review the matter  and report to the Court.”

In August 1997 before the GAL had completed the investigation and before the court had issued any orders on the removal request, Mother moved with Caleb to Providence, where she and her new husband had bought a house. In late August, Father filed a Motion for Further Temporary Order, pleading that the court prohibit that move until the GAL had finished her report. At a hearing on that motion, the judge (who was also the trial judge) modified the existing divorce judgment that had given physical custody of Caleb to Mother, and ordered that the child “reside with the Father from Monday after school through Friday delivery to school,” and with Mother on weekends. Without explanation, the judge also denied Mother’s request for physical custody contingent on moving back to Northborough with her parents. The trial on these issues occurred over three days in October-November 1998 (over a year since the custody change) and the judgment issued in January 1999. In the Judgment, the trial judge affirmed physical custody to Father in Northborough.

The appellate decision noted that the primary legal issue was one of modification of a previous judgment, not a removal one.³² The Court said that this standard must be based on a “material change in circumstances,” meaning new events or changes other than the move itself. This was based on G. L. c. 208, § 28 (“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, among others, Yannas v Frondistou-Yannas, 395 Mass. 704, 711. It also noted that the change in circumstances must be “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).

In reviewing the trial court’s decision, the Appeals Court did not find that there had been a material change of circumstances. It found “first, that a parent who works outside the home, even one with a ‘hectic’ schedule, may still be the appropriate primary caretaker and that, by itself, such employment would not warrant a custody modification.” (Rosenthal, at 263).

Second, by the time of trial, the probate judge found that positive changes in Mother’s work schedule “allowed her to spend more time with the minor child. For example, she began to drive Caleb to school in the mornings and became a volunteer classroom parent.” Thus, to the extent that changes in Mother’s work schedule did occur, they were not changes warranting a modification in the custody arrangement. The Court also found that Caleb had close relationships with both sets of grandparents before and after the separation, and that each parent had made efforts to maintain those connections. The Court did not find that awarding custody to the Father was necessary for Caleb to maintain those relationships. The Court further found, notwithstanding the move to Providence, that nothing of significance had changed in the life of Caleb that warranted a change in custody.

The Appeals Court then addressed issues of removal. The Court reiterated statements from prior opinions (e.g., Hale, Yannas) that noted that divorce “inevitably” alters a child’s life and that the quality and style of that child’s life are provided by the custodial parent. It reiterated that the child(ren) and the custodial parent form “a new family unit,” in which the “best interests” of the child are still paramount, but those interests are “so interwoven with the well-being of the custodial parent” that the Court must consider the latter’s interests as well. The Court then delineated the issues that are part of the structure of a removal decision.

1. Real advantage/good and sincere reason for the move.
2. Interest of the child
   1. Improvement in child’s quality of life. Citing Yannas, 315 Mass 711, the issue remains whether the quality of the child’s life is improved secondary to the

32 Packenham at 400-401 (2004) noted that there were two issues, depending upon whose complaint was under consideration. From mother’s perspective, she wanted to remove the child, and therefore fell under the “real advantage” standard, whereas Father requested a change of custody, which required a “material change of circumstances.” He also noted that in removal cases, the first threshold to clear is whether the moving parent has   a “good, sincere reason for the move.” (at 401) Then factors 2-4 above apply.

improvement in the quality or style of the custodial parent’s life. The Court held that the trial judge had not considered this factor, but had instead focused on the harm to the Father-child relationship of the move.

1. Effect of move on child’s association with non-custodial parent. The Court held that the trial judge had made no findings on this issue and suggested that the effect of the move to Providence would be slight, since there was only a 55- mile distance between each
2. Effect of move on child’s emotional, physical, or developmental needs. The trial judge found that Caleb’s care in both homes was more than adequate, which the Appeals Court held was not sufficient grounds upon which to   change custody. While the child had done well while living with Father in Northborough, that was not sufficient reason to continue the custodial arrangement the trial judge had ordered, especially since any disruptive effect stemmed   from the judge’s decision to deny removal and change custody. The Father argued that the relationship with the extended family was important to   maintain in Northborough, but the Appeals Court said that these relationships should not take primacy over Caleb’s relationship with his mother, and that, in any event, mother had made good efforts to maintain those relationships on her own.

3. Interests of custodial parent. The Appeals Court said that the trial judge made no reference to this issue, leaving Mother with the difficult choice of living with her new husband but not her son in Rhode Island, or with her son, but not her husband in Massachusetts.
4. Interests of the non-custodial parent. Citing Yannas at 711, the Appeals Court said the trial court must consider “the possible adverse effect of the elimination or curtailment of the child’s association with the non-custodial parent…in this context, “[t]he reasonableness of alternative visitation arrangements should be assessed. The fact that visitation by the non-custodial parent will be changed to his or her disadvantage cannot be controlling.” It noted that the record showed nothing that would have prevented Father from continuing to have a significant relationship with Caleb, especially (in this instance) given the 55-mile distance between homes. It further noted, “But the test is not whether there is no impact on the Father’s association, but whether reasonable “alternative visitation arrangements” might achieve ongoing and meaningful contact appropriate to the circumstances.” The trial judge’s determination that the move would make visitation more difficult was “not ”

As a result of the above analysis, the Appeals Court reversed the trial court and awarded custody back to Mother, ordering Caleb to again live with her as the custodial parent, although this time in Rhode Island. One significant question remains as to whether a greater distance between homes might have shifted the balance in the factors to be considered, since that would have had a far greater impact on the relationship between Caleb and his Father. It would have affected one aspect of the child’s interest and certainly the interest of the non- custodial parent.

Comment: One interesting historical aspect of this case was its similarity to Delmolino v. Nance, 14 Mass. App. Ct., 209 (1982), page 115 this volume, where the custodial mother moved her child to Ohio for sincere reasons, but she did not file a motion to request permission to move. Father then filed a motion for temporary custody and retrieved the child himself in Ohio. The Court subsequently awarded him physical custody, even though neither parent was unfit and the child had been doing well with her mother. While the final appellate decision returned the child to Mother (and required her to file a motion for removal in order to again leave with the child), it noted that simply removing a child from the state without approval  was not, in itself, a relevant change in circumstances, and Mother’s failure to gain permission did not permit the judge discretion to change custody.

In the instant case, the Court again referred to the idea that “reasonable ‘alternative visitation arrangements’ might achieve ongoing and meaningful contact appropriate to the circumstances.” This decision came sixteen years after Yannas and after more research demonstrating how distance and the maintenance of contact by the non-custodial parent is related, but the Court appeared to continue with its notion that “meaningful” and “ongoing” contact can be preserved when relocation of the custodial parent and the children occurs. It would seem to stretch the meaning of those two adjectives to fit into the conclusion that a child’s life is inevitably altered after separation and divorce, with his or her adjustment linked to the well-being of the custodial parent. Unfortunately, there is a minimal data to reveal what does happen to the relationships between non-custodial parents and relocated children to see how those connections are still meaningful to the children. The third supplement to this Casebook (2013-18) shows that later research has thrown into question that a child’s well-being is interwoven with that of his parent who wishes to move to improve her own life.

Important also for GALs was a footnote (1) regarding the guardian ad litem in the case. It read:

The guardian ad litem filed her first report on September 30, 1997, and an updated report on September 11, 1998, shortly before the first day of trial. In her findings, the probate judge refers to the guardian ad litem’s updated report as unauthorized.

General Laws c. 215, § 56A, which authorizes the appointment of a guardian ad  litem to undertake the kind of investigation here ordered, requires that, “[s]aid guardian ad litem shall, before final judgment or decree in such proceeding [relating to the care, custody, or maintenance of minor children], report in writing to the court the results of the investigation    ” Over a year had passed since the guardian ad

litem was first appointed on July 28, 1997, to report to the court on the removal and custody issues. There is nothing in the order of appointment to suggest that the role   of the guardian ad litem was limited to a single report or limited to providing information to the probate judge in connection with any request for a temporary change in custody. Since both reports were filed subsequent to the judge’s August 25, 1997, temporary order changing custody, neither was considered in connection with that order. Both reports of the guardian ad litem were correctly admitted in evidence.

Thus, the decision suggested that there was nothing that would prevent a GAL from updating   a report on his or her own initiative. However, the Court’s practice has changed over time in that a GAL is considered to have fulfilled his/her duty with the filing of the report (unless further deposition or trial is in the offing). Thus, a GAL would need a new order to file a follow-up report.

D.C. v. J.S.

Massachusetts Appeals Court

58 Mass. App. Ct. 351 (2003) at: http://masscases.com/cases/app/58/58massappct351.html

Keywords: Divorce and Separation, Child custody, Modification of judgment, Custody, (in-state) Removal.

Background: Married in 1989, the parents had two children, a girl in 1991, and a boy in   1994. In 1998, the parties divorced. Mother had primary physical custody of the children and shared legal custody with the Father, who had regular visitation. The marital home was in Norwell, where the Father worked. In April 1999, mother notified Father by letter that she planned to move to the Springfield area. In June, Father filed a motion to modify the custody award to himself as primary custodial parent. The parents had been in “mediation” and, in July, mother filed a counterclaim. She sought permission to move to the Holyoke area with concomitant changes in visitation to Father and she wanted to end the mediation process. In a temporary order, the trial court required mother to live in or next to Norwell, if she wanted to retain custody. Mother then moved to Marshfield, an adjoining town, in September 1999 (just before school began). The trial was held (on parts of nine days) between June and August 2000 and the judge issued findings in November 2000. She denied mother’s request and changed custody to Father, with visitation to mother. Mother appealed the judgment.

The Court noted it was undisputed that each parent was capable and caring, and that each of them attested to the same about the other. However, animosities had developed between them, both prior to and after the divorce. The court had appointed a psychologist (who had worked with them pre-divorce) to mediate, because the parents had significant obstacles to communication and cooperation. The judge took special note that the anger between them was so great that a minor unintentional “mixup” between them over the children took on greater importance than it deserved. In addition, In October 1998, and again in February 1999, Mother put the home up for sale with a real estate broker, but failed to inform the Father, until she wrote the letter in April 1999.

The Court noted that mother had grown up in Holyoke and had members of her family living in the original neighborhood, including a sick and dying parent. However, most of her friends from that area had moved away. The children were familiar with that side of the family through visits there. Mother felt that she would improve the quality of her life by living with or near family, and her children’s lives would be improved secondary to that. Mother found the schools to be satisfactory, and she was pursuing options for getting back into education,  as she had been a teacher, but she needed recertification. She also found the real estate market in Holyoke more favorable than in the metropolitan Boston area.

In her decision, the trial judge determined that mother’s wish to move was motivated by a desire to distance herself from the Father and not to improve her own situation in life, especially since she had committed some surreptitious acts (placing house on market unbeknownst to Father). The judge indicated that such a move would also serve to diminish the children’s relations with their Father. The move would be to the disadvantage of the

children since they “would be abruptly torn from their school and lifetime surroundings and friends.” (D.C., at 354). The judge found that mother failed to cooperate with the psychologist-mediator as she was obligated to do, particularly since the judge believed the mediation was “indispensable to the management of the split family.” (D.C., at 354). Mother was also characterized as “willful” in her testimony, in that she answered only the questions she chose.

The Court framed its analysis under two standards, one being a modification of a prior judgment that required a “material change of circumstances.” The other related to the issue of removal, which ordinarily refers to an out-of-state move, but they wrote:

We suppose the parties would agree that the consideration and evaluation of the visitation and other custodial conditions for the child that would result from relocation to a distant part of the State will resemble those applied to removal   beyond the State boundaries. Applications for court decision in cases in which a parent seeks to relocate within the Commonwealth should not be routine but are proper only where the relocation would evidently involve significant disruption of   the noncustodial parent’s visitation rights and the parents cannot agree. (D.C., at 355- 56)

Absent the removal issues, the Court doubted that Father could have supported his claim of material change of circumstances to warrant a change of custody, mother’s negative attitude toward him notwithstanding. The Court indicated that the judge interwove into the change of custody the manner in which mother secretively handled the sale of the house and her intention to put distance between her and the Father, with resulting weakening of the bonds between Father and children, intentional or not. That is, she linked issues of custody with those of removal. In reversing the judge on the custody issue, the Court referred to Rosenthal

1. Maney, 51 Mass. App. Ct. 257 (2001) that – in fairness to the judge – had not been handed down at the time of trial. They noted that a request for modification of custody is independent of a request to remove a child from the Commonwealth and requires a material change of circumstances other than the move (emphasis added). The court then remanded the case back to the trial court for rehearing in light of Rosenthal.

Comment: In this case, the Court opened the door for the first time to considering in-state relocations to be similar to those out-of-the-Commonwealth, if the proposed move was of sufficient distance to create significant obstacles to the other parents’ visitation with the children. The Court also left the determination of whether an in-state move was of sufficient distance to provide a barrier to the ongoing relationship between the non-custodial parent and the children (assuming a sincere reason for moving, not as in this case). Thus, the trial judge was to be a “gatekeeper” in this issue in determining how far is too far, where before the boundary (literally) was simpler – it was at the state lines. The Court reiterated the Rosenthal holding that a desired move with the children was not a sufficient basis to warrant a change of custody, since that determination must stand independent of the removal issue and be based on its own standard, that being a material change of circumstances.³³

This decision makes one wonder whether it reflects a conservative trend in appellate thinking about relocation cases, since it creates a barrier to removal that was not in the statute, leaving the determination of how far is too far to the trial judge’s wisdom. In the instant case, the judge had other facts on which to base her denial of removal other than the disruption of Father-child relationships, since almost any relocation involves some form of disruption of a regular parenting plan. Apropos of this, Packenham (2004) at 471 notes, “Although the Appeals Court cautions that these complaints should not be routine, most non-custodial parent’s visitation rights will be significantly disrupted when a custodial parent attempts to move within the state.” The fact that the judge weighed in on an in-state relocation was innovative in itself. Packenham (2004), at 471 wrote that this case “creates a new complaint…to permit in-state relocation.” It reminds the writer of an older New York State case – before it liberalized its case law – in which the Court refused to allow a custodial parent to move to upstate New York from the city, since it would interfere (not intentionally, as was the case in D.C. v. J.S.) with the non-custodial parent’s regular contact with the children.

The relevance for GALs is that the Court will now be seeking information regarding the effect on the access to the children of the non-custodial parent and on how the proposed move    would affect the quality of that relationship. The social science research is clear that a    distance that requires a drive of an hour or more does affect the contact between the children and the non-custodial parent, so that Packenham’s comment (above) is likely correct. Thus, the same framework that Rosenthal suggests for analyzing an out-of-state removal case will apply to an in-state relocation. Rosenthal involved a move from Central Massachusetts to Providence, a distance of about 50 miles, a distance not unlike that from Norwell to Springfield or Holyoke, but in the former case the removal was permitted, even though that custodial mother had ignored court orders in taking the child to Providence without the court’s or the father’s knowledge. She also did that before the GAL investigation on the issues was completed. It seems to this writer that the material change in circumstances in this case was not the intended move itself, but the fact that it was clearly going to interfere with the relationship of the children and their Father, and that Mother’s intent was to put some distance between her and the Father. It was just another roadblock that mother was placing in the way of the Father’s relationship with the children. It suggests that in the context of a cooperative relationship with no intent to undermine the non-custodial parent’s bond with the child, a move of similar distance might pass judicial muster, although, as always, these trial court decisions are case-specific.

33 It seemed that this issue was decided 21 years’ earlier in Delmolino v. Nance, 14 Mass. App. Ct. 209, (see case  on page 117), where the circumstances were more egregious, as the mother moved to Ohio without court permission, although her reasons were deemed to be sincere.

PAMELA DICKENSON vs. W. CLEVELAND COGSWELL.

Appeals Court of Massachusetts

66 Mass. App. Ct. 442 (2006) at: http://masscases.com/cases/app/66/66massappct442.html

Keywords: Divorce and Separation, Modification of judgment, Child custody, Removal.

Background. The parents married in 1986 and shortly thereafter, Father adopted his 10-year old stepson. They later had their own son in 1994. The judge stated, “During [the child’s] early years, [Mother and Father] were co-parents who shared child-care responsibilities.” Mother would take the child to day care, while Father would pick him up from day care at about 5:30 P.M. and be responsible for him until Mother returned from work at around 7:00 P.M. From the time the parties separated in 1996 until their divorce in 1998, the parenting schedule remained the same. (at 443)

In 1998, a Probate Court judge granted the parties a judgment of divorce nisi. The shared parenting section of the separation agreement provided that Mother and Father would share legal custody of the child and that Mother would have physical custody. The agreement further provides that Father “shall have access to said child at all reasonable times and places, including but not limited to . . . one weekend each month; one Saturday each month; one overnight during the work week; the weekend after their son’s birthday; every Father’s Day; one full week during each of the following periods: January and May; June and September; and October and December (a total of three weeks); and additional times to assist the wife with her work schedule; and all holidays as agreed upon…”

After their divorce, “the parties did not adhere to the parenting and visitation plan in their separation agreement. In practice, the parties were co-parents, engaging in good communication and exercising a flexible approach to visitation.” Beginning sometime in 2000, Father reduced his time with the child because of his increased work responsibilities. Also, in 2000, Mother met and began dating Mark Salwasser. (at 443).

In 2001, Mother commenced her current job as a sales operation manager at Smith & Nephew in Andover, where she earned approximately $100,000 per year. In April of that year, Father took a severance package from Fleet Bank and remained unemployed until July 2002. At some point during this time period, Father met his current wife. He also rented a condominium to be closer to the child. From September 2001, until May 2002, he saw the child “almost daily.” (at 444).

In September 2002, Mother married Mr. Salwasser, who sold his home and moved in with her and the child in their home in Andover. He undertook “homemaker” responsibility for the family: he ran errands, he cooked, and he cleaned. That same month, he purchased a home in his name in Arroyo Grande, California with the proceeds of the sale of his Massachusetts home. Mother paid all the costs associated with the Arroyo Grande house.

Also in September 2002, Father learned from the child that Mother wanted to relocate to California. After initially describing the relocation as only a possibility and denying any immediate plans to move, Mother confirmed in November 2002, that she planned to move to California with her husband. In the spring of 2003, Father began working for his current employer, Webster Financial Services, a bank located in Connecticut, and began commuting 115 miles from his home in Newton to the bank, which takes one hour and forty minutes each way. He saw the child on Thursday nights and every other weekend. Father married his current wife in June 2003. In November 2003, Mother put her Andover home on the market, and after it was sold, she moved to her present apartment in Lawrence, where she lived with her child and husband. Her husband then moved to Arroyo Grande in August 2004, a few weeks before trial commenced.

Prior to trial, Mother and her current employer agreed that she would work remotely in California for three weeks per month and that she would fly to Massachusetts for one week every month at her employer’s expense. When the trial began, Mr. Salwasser, who preferred part-time employment, did not have a job in California. However, by the end of the trial, he reported that he had received an offer of part-time employment to develop after-school programs for elementary and high school students for $ 1,300 per month. He had not, however, moved to California in hope of obtaining this job. Mother would remain as the primary source of financial support for the family. Mr. Salwasser was born in California, but lived on the east coast from 1971, and in Massachusetts from the mid-1980’s, until, as noted above, August 2004. His parents, who were in their mid-eighties, resided in California. Their primary residence was in Clovis, California, 162 miles and a two-and-one-half hour drive from his home in Arroyo Grande. Beginning in 2002, he began traveling back and forth from California to Massachusetts to visit his parents approximately once a month.

The judgment: The judge found that Mother did indeed desire to move to Arroyo Grande to be with her husband, that she was not motivated to interfere with Father’s relationship to their child, and that she believed in the importance of that relationship. The Court also noted that Mother was sincere in planning to minimize the impact of that move in terms of money and time, if the Court were to permit her to leave with the child. The judge stated that Mother believed her new work plan would permit her to work from home and be more available to the child. He also found that, while Mother might benefit emotionally from the move, there was no financial or social benefit. He stated, “Her employment will become less secure, she frequently will travel away from home, and she will be living far from her New England friends and family.” (The Court noted that most of Mother’s ‘roots’ were in New England). The judge concluded that there “(wa)s no real advantage to [Mother] in moving to California.” (at 446).

The Court found that the boy was a well-adjusted, polite, and friendly ten-year old at the time of the trial and had no special needs. He had a good relationship with his parents and stepparents. Father and the child “have a very close father-son relationship [and Father] has been deeply involved with his son’s life.” Father visited with the child every week, coached several of the child’s sports teams, and took the child on numerous skiing, hiking, and camping vacations. The child will miss Father who has been a “steady and important presence” in his life. “It is in [the child’s] best interests to have regular contact with [Father].” (at 446).

Mother proposed a complicated and expensive visitation schedule involving once/month flights cross-country. She would fly here with him, but he might fly home some of those times without her. Some of those flights were ones that landed very early in the morning in Boston or required stops/layovers in Las Vegas, in order to fly in to San Luis Obispo, the nearest airport to Arroyo Grande. Father would also fly to visit the child one weekend per month. While the judge credited the detailed plans that mother had made for these visits, he found them to be “impractical and unreasonable,” and “denied permission to move as not in the boy’s best interests.” (at 446).

The Appeals Court then framed the judge’s decision within the factors structured in Yannas

1. Frondistou-Yannas, 395 Mass. 704 (1985).
2. Reasons for the move: The judge found that Mother had a sincere reason for her proposed move (to be with her husband in CA) and that she was not motivated to interfere with Father’s relationship with their son. However, that sincere reason was “Not a good reason” to warrant removal. (at 448). The Court took some issue with that justification for the judge’s refusal in the initial part of his analysis of the case, but it said that the judge’s findings in the remainder of his analysis of the “collective balancing of interests” (at 449) provided sufficient foundation for his decision.
3. Interests of the child. In the collective balancing of interests called for in Yannas, 395 Mass. at 711, the probate judge first is required to consider the effect of removal on the child’s interests. The judge found the move would not be in the boy’s interests, as he would then have a “bicoastal existence” (at 449) with problematic flights that he would sometimes take without parental accompaniment. He would not see his mother for one week/month (she would have to come to Massachusetts to work that week). The judge concluded the boy would likely benefit from Mother’s increased happiness at being with her husband and her presence in the home after school three weeks/month, whereas he would have both parents regularly in his life if he were to remain in Massachusetts with his

The child’s financial security would also be diminished by the move, as the judge found Mother was “embarking on a less-stable employment relationship in order to move to California.” (at 449) The opinion then detailed the judge’s significant concerns for the detrimental effect of the move on the child’s relationship with his father, who “has been a regular part of the child’s everyday life in Massachusetts, coaching the child’s athletic teams, picking him up from school or day care, and facilitating the child’s relationships with his brother and other relatives. This would no longer be possible if the child lived in California: spending time with his father would require significant, costly, and tiring air travel.” (at 450) The Court also noted that the trial judge stated that, as the child was healthy, sociable, and pleasant, he would likely be successful if he were to move, and that the singular “troubling” aspect was “the negative emotional impact [the child] will experience from greater distance from [Father]…” (at 450)

711. Interests of the custodial parent. The probate judge must next consider the welfare of the custodial parent. Yannas, 395 Mass. at 711. The probate judge set out the benefits and

detriments of the move to Mother. He credited the benefit of her increased happiness in living with her new husband and being able to spend more time with her family when she was in CA. He debited the need to work on two coasts, to be “in constant motion,” (at 451), to have less job security, and to be removed from her supportive friends and family who lived primarily in New England. In a footnote (8) to the case, the Court noted that the primary reason for the proposed move was Mr. Salwasser’s desire to live in California, and that the home he bought was a few hours drive from his parents’ home. Mother’s desired to move because her husband wanted to go. There was no economic reason for him to live in California, where he had not lived for about thirty years.

711. Interests of the noncustodial parent. Lastly, the probate judge must consider the interests of the noncustodial parent. Yannas, 395 Mass. at 711. In discussing the difficulties with the planned visitation arrangements, Court noted, “Ample evidence supported the probate judge’s conclusion that the child’s relationship with his father will suffer from reduced contact.” (at 451-452)
712. Balancing of interests. The Court found no fault with the judge’s consideration of the relevant issues in assessing the child’s best interests, which consideration involves “classic discretionary decision making by the trial judge.” (at 452) The Court’s reasoning in this case is important, as is included

Here, the move would have clear and significant negative effects on the child. These effects, as the court in Yannas, supra at 711, emphasized, are “most important.” For Father, a caring and involved noncustodial parent, the removal would significantly and negatively affect his relationship with his son, and for Mother, there would be significant new burdens. The primary interest being served by the move is the husband’s desire to live in California. The collective balancing of interests here is unlike cases where removal was found to be appropriate. Contrast Williams v. Pitney, 409 Mass. at 456 (removal allowed where Mother “would be close to friends and relatives who would provide emotional support [***22] after the move, and . . .Mother would be better able to secure employment”); Signorelli v. Albano, 21 Mass. App. Ct. at 941 (judge failed to take into account that Mother’s husband, with whom she has just had a baby, lives in New Jersey and had secured employment there); Vertrees v. Vertrees, 24 Mass. App. Ct. at 920 (removal allowed where the “detrimental effect of being apart from their father would be outbalanced by the strengthening of the custodial home in the community of the wife’s supportive relatives” and where the wife also had increased opportunities for career advancement); Rosenthal, 51 Mass. App. Ct. at 271 (removal allowed where financial situation greatly improved and where relocation eliminated Mother’s long commute to work, permitted her to live with her new husband, and did not deprive Father of “ongoing and meaningful contact appropriate to the circumstances”). (at 452-453)

The Court determined that the judge’s decision followed a “fair balancing of the Yannas factors,” contained no “abuse of discretion or error of law,” and the judge properly concluded that removal was not in the child’s best interests. (at 453)

Comment: This removal case is the first of several decided in 2006. The history of the family suggested that, while Mother had primary physical custody, there was an ongoing close relationship between Father and the child, one that had been fostered during the marriage of the parties. Of interest to guardians ad litem is the fact that Mother’s sincerity in her desire to move to live with her husband in California, the emotional benefit to her of the move, and the absence of any intent to undermine the Father-son relationship were not sufficient for the court to permit the move. Other factors related to the move – potential employment problems and the complicated and perhaps precarious travel arrangements for the child – seemed to diminish the weight that the trial judge might have otherwise given to the issues of her sincerity and motivation. It was possible that there was no substantive reason for Mother’s new husband to have moved to California, thus diminishing the weight given to her need to move to California to be with him.

The Appeals Court also stressed the importance of the Father-son relationship and detailed how Father had been involved in the child’s life. The Court credited the judge’s concern about how detrimental a move would be to that relationship, even in light of the finding that the boy would likely be successful if he did move to California. (Reviewer) Alex Jones raised a question about what analysis the trial judge might have done in light of Mason v. Coleman (decided a month later), given the extensive involvement of the father with the son. What is interesting is that many relocations have significant impacts on the close attachments between the parents who are left and their children – in fact, that is what makes these cases so difficult. However, that is usually not enough, in itself, to warrant judicial denial of permission to move. In this case, the other factors related to the interests of the child (and lack of economic/financial benefit to Mother) seemed to give the judge sufficient facts to deny removal. What is also important to remember is the detailed fact-finding that the judge made in explaining the various factors and his effort to balance all the interests in this family. When there is a GAL involved in such a case, that kind of detailed information permits the judge to discern all the relevant facts in order to do the balancing-of-interests determination necessary in these removal decisions.

JAMES R. MASON vs. BETSY SHANLEY COLEMAN.

Supreme Judicial Court of Massachusetts

447 Mass. 177 (2006) at: http://masscases.com/cases/sjc/447/447mass177.html

Keywords: Divorce and Separation, Child custody, Removal.

Background: The mother and father married in 1985. They had a child in 1992 and another in 1994 while living in New Hampshire. They divorced there in 1998. The judge found that during the marriage each parent took the part of a “primary caretaker” to the children. Father was home with the children from 1992-1997, while he attended graduate school. After the marriage, father and mother agreed to a joint physical and legal custody agreement that was incorporated into their divorce decree.¹ Under the agreement, the parents divided physical custody of the children approximately equally. The parties agreed to move within twenty-five miles of Chelmsford and, in light of uncertainty as to where each would locate in Massachusetts, that the children would attend school in the district of the mother’s residence. After a time, each parent remarried and respectively modified the divorce decree as needed.² Father relocated to Nashua, about 17 miles from Chelmsford. Mother had only brief notice of the Father’s move and did not initiate any court action to deal with it. However, a few weeks after Father’s move, Mother notified him of her intention to move to her parents’ home Bristol, NH. She also planned eventually to move into her own home in that town. The stepfather’s former wife and their children were also planning to move to Bristol, and he had told his former wife that he would move there, too.

Additionally, the older boy had been previously diagnosed with special needs (learning disability and ADD), along with some social skills deficits. He had done well in the Chelmsford Schools’ regular and special education programs and had been successful in the recently completed 5^th grade. He had also participated in a social skills group led by a school counselor. He was on a 504 classroom “accommodation” plan with academic and social supports for him in the middle school. As one factor, the Court found that Chelmsford’s school system was superior to that of Bristol, which it determined by comparing each school’s achievement testing results to those of other school systems in their respective states. The judge determined that the changes anticipated by a move to Bristol would be harmful to the older child’s social and educational development (Bristol is in Northern New Hampshire and at least a two-hour drive from Nashua).

Another issue was an allegation of inappropriate touching of one of the children by one of Mother’s stepsons. The child recanted, but then reversed himself by re-asserting his allegation.

1 The opinion noted that the parents’ stipulations did not expressly characterize the arrangement as “joint physical custody,” but the parties’ arguments before the court assumed that this was the relationship among the parents and children.

2 A July 19, 2006 story in the Boston Globe after the opinion was published contained an interview of the Mother and the

children (father did not want to be interviewed). In that story, she told the reporter that Father had parenting time with the children every other weekend, from Friday after school until Tuesday morning, and they alternated weeks in the summer. Practically speaking, that meant he had the children four days out of every fourteen-day period (assuming her version of the parenting plan was accurate, which is indeterminate since Father chose not to respond to reporter requests).

This caused much tension between the parents and pressure for the child himself.³ When Mother informed father of her intent to move, he filed a complaint for modification asking for sole physical custody and an injunction preventing the move; Mother then counterclaimed, asking for sole physical custody and permission – on a temporary basis – to move to Bristol, NH.

Opinion: After a four-day trial, the trial court included as part of its Judgment,

The (trial) judge found that Chelmsford schools were preferable to those of Bristol, particularly for the child with special needs; that uprooting the children would be detrimental to their interests; that the move would cause a reduction of the father’s parenting time that would not be in the children’s interests; that misconduct allegations against a step-sibling weighed against increased time in the mother’s household; and that there was insufficient evidence of financial imperative to justify the mother’s move to Bristol. The judge determined that the father’s move to Nashua did not provide ground for the relief requested by the mother, and the judge did not award sole physical custody to either party, deciding instead to order continued shared legal and physical custody (at 182).

In the decision, the SJC noted that this case was different than the controlling case of Yannas

590. Frondistou-Yannas, 395 Mass. 704, (1985), in which the moving parent had sole physical custody, since this family had shared legal and physical custody. The SJC discussed the differences between legal and physical custody and the legal expectations relevant to each type. The Court cited the seminal case on joint legal custody, Rolde v. Rolde, 12 Mass. App. Ct. 398 (1981), pp. 11-14, this volume. In that case, they cited Folberg, J. (1984). Joint Custody and Shared Parenting, ch. 13,. which stated that shared physical custody is “generally appropriate only if the parties demonstrate an ability and desire to cooperate amicably and communicate with one another to raise the children.” They reiterated the idea in Rolde that it is primarily a voluntary arrangement for “stable, amicable parents behaving in a mature civilized fashion.” Braiman v. Braiman, 44 N.Y.2d 584, 589-590. They discuss at some length the nature of shared physical custody and the degree of coordination and cooperation needed to make it work for children. The SJC wrote,

It is thus incumbent on a parent who has been awarded joint physical custody to recognize that the viability of the endeavor is dependent on his or her ability and willingness to subordinate personal preferences to make the relationship work. While a joint physical custody agreement remains in effect, each parent necessarily surrenders a degree of prerogative in certain life decisions, e.g., choice of habitation that may affect the feasibility of shared physical custody. (at 183)

Citing the American Law Institute’s (ALI) Principles of the Law of Family Dissolution and cases from other jurisdictions, the SJC noted that the “calculus” necessary to decide removal issues differs when parents share physical custody, since there is no ‘primary caretaker’, or

3 The opinion did not indicate whether there had been any substance to this allegation, but the opinion noted that, among other factors she considered, the judge did not wish to allow more substantial time for the children in the mother’s home (if it were in Bristol) because of potential misconduct by the stepfather’s children.

both parents are ‘primary caretakers.’ The Court noted, “No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and responsibilities with respect to the children. The importance to the children of one parent’s advantage in relocating outside the Commonwealth is greatly reduced.” (at 184-185). The ALI standards indicate that, where neither parent has a predominant interest (in the instance of shared physical custody), the effect of the relocation on the child is an important factor to consider as part of best interests. The Court also cited Judith Wallerstein’s article, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Family Law Quarterly, 305, 318 (1996), in which she noted that it is to the benefit of the child to protect his or her relationship with each parent (with shared physical custody) because “both are, in a real sense, primary to the child’s development.” Wallerstein, supra at 318). The Court conceded that relocation often prevented “frequent and continued contact” with the non-custodial parent. It noted that a judge could consider issues such as distance between homes and the impact of that distance (and means of transportation) on the parent-child relationships, and that one parent moving out of state need not necessarily impede continued contact and parental responsibility.

The SJC opinion stated:

The order is based on the judge’s findings that the children’s best interests would be negatively affected by this move. She made detailed written findings that their current schools were superior, that uprooting the children would be difficult for them, that the move would impair the father’s parenting to the detriment of their interests, that potential misconduct by other siblings in the mother’s household weighed against increased physical custody by the mother, and that any financial or other advantage of the move to the mother was unclear. From this the judge determined that it was not in the children’s best interests to be removed to Bristol. (at 186).

The SJC noted that the judge appropriately considered the best interests of the children, made no clear error in her findings of fact, and did not abuse her discretion in refusing to allow Mother to remove the children to Bristol, NH.

Comment: This is the first appellate case to address the issue of the relevance of the “real advantage” standard to a family where there was no primary caretaking parent. Since neither parent was “primary” or they both were (the semantic contradiction notwithstanding), the SJC determined, in keeping with the ALI standards, that the framework for their opinion was “bests interests of the child.” “Bests interests” was no longer “interwoven” with the benefits of moving for the primary parent, and so all the other factors had to be considered in totality within that framework. The case continues a trend in appellate law to rely on the ALI principles.

The case raised other issues. For example, Father moved out-of-state, although only as far as Nashua. He gave limited notice to Mother, who did not contest his move. Query whether she could have prevented that move, if she had raised the issue in Court. Since he had the children in a shared physical custody arrangement, his obligations to them would seem to have been the same as hers. He did not change their schools (they had agreed on

Chelmsford), but he changed their residence when they were in his care. If they had a “Mom’s House – Dad’s House” shared parenting type of arrangement (as the case report suggested), when they were under his care, they were living out-of-state. But when she wanted to move to the same state, he successfully blocked that. It was not clear from the case report how her move would have interfered with his time with the children, since the case did not specify the particulars of their shared physical custody plan. The case highlights the fact that what is legally in a name (e.g. type of custody) counts even more than it did before this case. The parent who had primary physical custody before Mason had a legal advantage, if she or he wanted to move. Now a parent who considers agreeing to a shared physical and legal custodial plan has to weigh the likelihood that any future move of more than an hour or two might not be permissible under Mason, even within the state. That parent would have to show that the move was in the child’s best interests, irrespective of the moving parent’s interest. Will this decision impel fathers, in particular, to argue for a shared physical custody arrangement as part of the divorce, so as to protect their relationship with their child?

Another aspect of this case for an investigator/ evaluator is the need to analyze in some detail what parties mean when they claim to have a shared legal and physical custody arrangement. If the Mother in the Globe story was accurate, she was the de facto primary caretaker, since she claimed to be doing much more of the work of parenting since the father moved to Nashua. Thus, it is incumbent to do the fact-finding to determine whether shared physical custody exists in name only or the parents practice that legal arrangement in everyday life.

JENNIFER M. CARTLEDGE vs. MARK E. EVANS.

Appeals Court of Massachusetts

67 Mass. App. Ct. 577 (2006) at: http://masscases.com/cases/app/67/67massappct577.html

Keywords: Removal, Divorce and Separation, Child custody. Parent and Child, Custody.

Background: The parents married in 1997 and had one child, age seven at the time of the appeal. Divorced in July 2004 after a trial, mother was awarded physical custody and they shared legal custody. Six months later, on January 7, 2005, Mother filed a complaint for modification, seeking an increase in child support, since she had lost her $70,000.00/year job with Fleet Bank. The home she rented in Newton was being sold and she could not afford to purchase a home or continue to rent in that same town. On January 10, she filed another complaint to remove the child from Massachusetts (Newton) to Old Saybrook, CT, an upscale community, where her mother lived. Before the court ruled on the motion, she had moved to CT to live with her mother for no rent. There she had the “companionship of family and readily-available child-care assistance from family” (at 580), and had found part-time work with another bank in Old Saybrook. On August 30, pursuant to a hearing, the trial court judge denied the removal, ordering Mother to return to Massachusetts by September to a residence within a 25 mile radius of Boston and to enroll the child in school. Mother returned to live temporarily with a sister, but she could not enroll the child in a school until she had a permanent residence. In the meantime, she appealed the judge’s order and successfully got a single justice of the appeals court to stay the execution of the order pending her appeal of it. The appeals court then accelerated the appeal (heard in October).

Opinion: The appeals court applied the Yannas “real advantage” test to the facts of this case See Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985), noting that the “child’s quality of life and style of life are provided by the custodial parent” (at 580) and that the best interest of the child is so “interwoven” with the well-being of the custodial parent that the latter’s interests must be considered. The court noted that, taken at face value, the factors in this case lent themselves to a straightforward “real advantage” analysis, with the mother’s circumstances establishing “a good reason” for the move and the judge’s contrary findings being “clearly erroneous.” (at 580). There was no finding that the mother intended to interfere with the father’s ability to have time with the children. The appellate decision noted that the guardian ad litem had provided a balanced report, and the trial judge had based her decision on some of those guardian’s findings, but primarily on the negative ones. The decision indicated that the judge had not given “fair consideration to all aspects of the situation, including the mother’s needs, or improperly gave undue emphasis to only one aspect of the situation, the father’s visitation.” (at 580). In reviewing the discussion of the relevant factors, the Court noted that disruption of Father’s visitation could not be the controlling factor, or “no removal petition would ever be allowed.” (at 581). The Court suggested that the judge (improperly) found that issue (i.e. impact on Father’s visitation) to be dispositive. It then said,

In these circumstances, a move to a town and neighborhood that are familiar to the child, where the mother and child have close family connections, and which are not so distant from Boston as to preclude frequent visitation with the father, offers an obviously reasonable alternative more in keeping with the principles implicit in the real advantage test. The probate judge’s findings fail to support her conclusion that the best interests of the child are served by the denial of the removal petition. (at 581).

The Appeals Court then reversed the decision of the trial court and affirmed the order of the single appellate justice. One of the judges on the three-panel dissented, stating that appellate courts traditionally give wide latitude to the discretion of a trial judge, who has listened to the evidence and had a chance to assess the demeanor of the parties when testifying under oath. Appellate courts will not reverse a decision of the trial judge “absent clear error or a firm conviction that a mistake has been committed.” Citing Mason v. Coleman, 447 Mass. 177, 186 (2006). The dissent explained that the judge had been clear in the record about the basis for her judgment. It noted, “Each of these findings is thoroughly documented and analyzed, and is well supported by the record.” (at 583). The dissent stated that the trial judge viewed the mother’s motive for moving as simply a matter of “personal desire,” and that the Mother had established no other “real advantage” to her by the move. The dissent stated that the judge was not clearly erroneous and had no abused her discretion, and her judgment should have been upheld.

Comment:

Of interest to investigators or evaluators is the mention in the majority Appellate decision that the GAL report was “balanced,” but the judge erred in not considering all the factors noted in the report. The other issue of some significance was that the majority indicated that the trial judge appeared, in her judgment, to give undue weight to the impact of the move on the father’s visitation relative to the other factors in the case.

From a historical perspective, this case seems to re-emphasize the original “real advantage” factors in the Yannas decision that gave weight to the interests of the custodial parent who wants to move and the link between those interests and the best interest of the child. Other cases in 2006, such as Mason v. Coleman or Dickenson v. Cogswell – where removals were denied – seemed to have given more weight to the relationship between the child and the Father. In Mason, there was shared physical custody in Chelmsford, although, according to the Boston Globe story (in which Father was not quoted), Mother appeared to do more of the parenting after Father moved to Nashua, NH. In Dickenson, Mother had primary physical custody, but the judge noted that the child’s interest in maintaining a close relationship with his father outweighed the mother’s interest in living with her new husband in California, where there was no obvious economic benefit to her from the move and travel arrangements were problematic. Distance may play a factor in a case, as the Court in Cartledge noted that the child’s residence in Old Saybrook, CT would not preclude frequent contact with the father (i.e. 115 mile drive), an idea that the Court also mentioned in Rosenthal, where the Mother in that case moved with the child to Providence, RI. (a 55-mile drive from Father’s home).[6]

Another aspect of Cartledge – in the context of the other removal cases – is that it appears to make the predictions of probable outcomes more uncertain for the attorneys in them and for GALs who might provide recommendations to the Court after completing investigations. It also suggests that opining on the sincerity of the moving party’s motivation is questionable, since the judge in this case, who heard all the testimony, clearly felt that the plaintiff-Mother was disingenuous in her stated basis for moving, yet the Appeals Court – despite its historic deference to judicial discretion – asserted that the court’s judgment was based on erroneous findings (discounting or ignoring positive impact of the move). Alex Jones suggested there might have been an effect on the trial judge of the brief interval (six months) between the Judgment and the Complaint for Modification for removal.

LAURIE WAKEFIELD vs. JAMES HEGARTY

Massachusetts Appeals Court

67 Mass. App. Ct. 772 (2006) at: http://masscases.com/cases/app/67/67massappct772.html

Keywords: Removal, Custody, Parent and Child.

Background. The parents met in 1989 and lived together. While they did not marry, they had child on March 23, 2000. In September 2001, following a maternity leave of absence, the mother returned to full-time employment, obtaining the position that she held at the time of trial. Initially, the child attended daycare at the home of her paternal aunt for six to seven hours per day. The father has been very active in caring for the child since her birth, and he was helpful in caring for her during this period.

Two and a half years later, in August 2002, the parties separated and since that time the child lived solely with the mother, who, pursuant to a stipulation for temporary orders entered into by the parties, was the child’s primary caretaker. On March 6, 2003, the mother filed a complaint in the Probate and Family Court on the child’s behalf seeking to establish paternity against the father. She further sought an order granting her custody of and suitable child support for the child. On September 24, 2003, the parties entered into a stipulation, which was incorporated into a temporary order on that date. The temporary order granted the mother sole physical custody of the child, but it granted shared legal custody to both parties. The order also granted the father parenting time on Tuesdays after preschool until 7:00 P. M.; on Thursdays after preschool until 9:00 A.M. on Fridays; on Saturdays at 4:00 P.M. until 4:00 P.M. on Sundays; and at “any such other times as the parties may agree.”[7]⁴

Around November 2004, the mother informed the father that she wanted to relocate with the child to St. Croix in the Virgin Islands, where she had grown up and where her mother, father, and sister still resided. After investigation, a court-appointed guardian ad litem recommended that the mother be allowed to relocate to St. Croix with the child.

In St. Croix, the mother would have continued to work for her then current employer in a new position, a “contract worker.” In the new position, she planned to work at home, allowing her to be more available to the child, and at an increased salary. She claimed that she would enjoy greater family support in St. Croix from her parents, one of whom was retired and the other about to retire. Both of her parents were well-educated and active in the St. Croix community. The maternal aunt was a marine biologist, married, and had a daughter who was five years old at the time of trial.

The mother proposed a parenting schedule for the father that included extended visits, both in St.

Croix and in Massachusetts, during the Christmas and spring vacations, and during Columbus Day weekend. In addition, the father would have been allowed to visit the child at other times in St. Croix so long as he gave the mother at least thirty days’ notice. The mother agreed to

bring the child on any business trips she made to Massachusetts that did not conflict with school, and the child would have never traveled alone. The father would have had communication with the child via telephone, electronic mail, and Internet-accessible cameras.

Decision: The judge granted the removal request and awarded sole legal custody to Mother. The Appeals Court stated that the trial court judge’s findings were supported by the record and “were not clearly erroneous.”

Application of the “real advantage” test. Initially, the Court noted that, although the parties were never married, the child was entitled to the same rights and protections of the law as other children. G.L. c. 209C, § 1.⁵ The Court noted that the trial judge applied the correct legal standard, M. G.L. c. 208, § 30, which provided that “a] minor child of divorced parents who is a native of … this commonwealth … shall not, if at 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.”

1. As an initial inquiry, the Court applied the “calculus” as established in Yannas v. Frondistou-Yannas, 395 Mass. 704, 712 (1985), first determining whether there was a “real advantage” for the move, including a “a good, sincere reason for wanting to remove to another jurisdiction.” (Yannas, at 712). Moreover, the judge must consider whether there is a motive to deprive the other parent of contact with the child (Rosenthal v. Maney, 51 Mass. App. Ct. 257, 267 (2001)).
2. The second inquiry related to whether relocation was in the child’s best interests, and 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.” (Yannas, supra). Citing the above cases, the Court noted that the judge must consider that every person in the family has an interest to be considered. Father asserted that the degree of contact he had with his child in effect constituted a de facto joint physical custody arrangement and that the court should have applied a Mason analysis (Mason v. Coleman, 447 Mass. 177 (2006)) and not a Yannas one, where the real advantage standard becomes moot, as there was no primary custodial parent and the “best interests of the child” standard was the controlling standard.

In response, the Court noted that the parties had stipulated to a framework in which Mother had sole physical custody; the judge’s findings clearly demonstrated that she “always been the child’s primary caretaker and that the child resided solely with the mother.” The Court affirmed that the judge applied the correct standard and the judge’s findings supported her opinion permitting removal. The Court noted the financial and emotional benefit of the move to Mother, her ability to work from home, and to be more available to the child. She would have family

5 The Court’s footnote: “We note that the parents in this situation were in a live-in relationship when the child was born, and they parented the child together before and after their breakup.”

support and be able to afford private school for the child. The judge further found no motivation to deprive Father of “reasonable visitation,” and that she had supported the Father-child relationship in the past.

3. The third level of inquiry related to the child’s best interests, and the judge found that the move was consistent with that. “She based her conclusion in part on her findings that the move would result in an improvement in the life of the mother that would inure to the child’s benefit; that the child would have greater access to the mother, her primary caretaker, and also to an extended group of family members; that the child would have greater educational opportunities in St. Croix; and, contrary to the claim of the father, that all of this would positively affect the emotional, physical, and developmental needs of the child.” (at 777) The Court also affirmed that the judge thought about the Father-child relationship, noting that, while “visitation by the father will change to his disadvantage,” the alternate visitation plan was reasonable. The judge stated that Mother had endeavored to keep Father informed about the child and she would continue her past practice of supporting their
4. Legal custody of the child. Father disputed the judge’s award of sole legal custody to Mother, claiming it was based wholly on Mother’s assertions. The Court supported the judge’s decision, noting she made that determination on the totality of the

Comment:

Coming on the heels of Cartledge v. Evans just a few weeks earlier, the Appeals Court seemed to affirm the prominence of the Yannas “real advantage standard,” in cases where it determined the moving parent had a sincere reason for relocating, had been the primary physical custodian of the child, had no motivation to undermine the child’s relationship with the other parent, and would benefit financially and emotionally from the move. In such circumstances, as in Yannas, the Court considered that those benefits would generalize or “inure,” as the Court put it, to the child. As in Yannas, it noted the disadvantage to Father’s contact with the child, but held that the alternate visitation plan was “reasonable.” It seemed important that the move held certain financial gains for Mother, whereas in other cases (e.g. Dickinson v. Cogswell (2006)) simple social or emotional advantages (moving to live with her new husband) might not have been sufficient to meet the “real advantage” standard, notwithstanding a sincere reason for moving and an absence of intent to limit the relationship of the child with the non-custodial parent.

In Cogswell, Mother, too, had claimed she could work from home and be more available to the child, as in the instant case. However, the judge in Cogswell gave significant weight to the father-son relationship and the disruption of that which would follow relocation to California, and the Court supported his findings from the record. From the description of the father-son relationship in Cogswell, that father seemed more integral to the son’s daily life than the father in this case. Because these decisions are fact-specific, it is hard to generalize from one case to the other, and the reader of the Appellate opinion does not have the full, detailed record describing all the facets of the various relationships within the divorced family. It again emphasizes the importance of a GAL giving detailed descriptions of the nature of each parent’s relationship to and involvement with the child to help the trial court determine how much weight to give to that factor. Of additional interest according to Alex Jones is that this case also reaffirms the public policy of the Commonwealth not to treat children born out of wedlock differently than children born to married parents. The Court applied a statute under G.L. c. 208 (the divorce statute) to a paternity situation. There is no analogous provision addressing removal under G.L. c. 209C, the paternity statute. Henry Bock raised the legal question about why the trial court (affirmed by the Appeals Court) awarded sole legal custody to the mother, when they had joint legal custody prior to the removal request and Father had been an involved parent. If, as the Court has opined, a father can maintain a relationship with a child who moves away (through alternate parenting arrangements), on what basis does it disqualify him as a parent who can have, as Henry Bock stated, “rights and obligations of shared legal decision-making and access to information?”

ANGELA PIZZINO vs. PATRICK MILLER.

Appeals Court of Massachusetts

67 Mass. App. Ct. 865 (2006) at: http://masscases.com/cases/app/67/67massappct865.html

Keywords: Parent and Child, Custody, Divorce and Separation, Modification of judgment, Removal from the Commonwealth.

Background. The parents married in 1991, and had two boys, one in 1996 and the other in 1997. At the time of trial, Mother had some part-time jobs (one being a reservist in the Air National Guard at Otis Air Force Base), in addition to her regular job as an environmental analyst with the Massachusetts Department of Environmental Protection. Father was working as a dental hygienist. He was employed by the Air National Guard at Otis Air Force Base, but he retired from that service in November 2003. Both boys had special needs; the older child struggled with academics and received special education services. The younger son had been diagnosed with pervasive developmental disorder at 16 months of age and received early intervention special education services until he was three. He was reported to be functioning at grade level and no longer needed special service. Both parents seemed to be loving and competent parents and the children were close with each of them The trial court there was a strong attachment between the boys and their father and a close relationship with their grandmother, who took care of the boys when the parents were working or on military assignment.

During National Guard training in Georgia in May 2001, Mother met Steven Pizzino and started a relationship with him. He had been in the Air Force for 13 years and was a non- commissioned officer, stationed at Shaw Air Force Base in South Carolina. The marriage then deteriorated and ended in divorce in August 2002. The Judgment consisted of joint legal custody for the parents and primary physical custody to Mother. Their incorporated Separation Agreement prohibited removal of the children from Massachusetts by either parent without the prior written agreement of the other parent or permission of the Probate and Family Court. Mother then married Mr. Pizzino on August 28, 2004.

More than a year earlier, on May 5, 2003, the mother filed a complaint for modification, seeking permission to remove the children from Massachusetts to South Carolina. The father filed an answer opposing removal, as well as his own complaint for contempt. The judge appointed a guardian ad litem to investigate and report on the question of removal. The GAL report, which recommended against allowance of the removal request, was filed on December 17, 2003. About that time, Mother took a job Environmental Projects Group in South Carolina at a starting base salary lower than what she earned in her Massachusetts employment, but with opportunities for commissions and bonuses. She then married Steven Pizzino. Pizzino’s military status precluded the possibility of a move to Massachusetts on his part.

After a trial in November-December 2004, the judge denied permission to move, holding, “…there was no “real advantage” to the mother in moving away from Massachusetts, stating

that she “has not shown a good and sincere reason for wanting to move to South Carolina. The only reason given to the Court was that the Mother’s new husband, Mr. Pizzino, currently resides on a military base in South Carolina.” (at 868). The judge found that the new husband had a job that could require re-assignment, which might create instability for the children. He also found that there was no financial advantage, since Mother’s new job paid less salary than her current one and was more insecure in terms of tenure. Moreover, Mother would be relinquishing an “effective support system consisting of her mother and sister and entering an environment in which she had no other family.” (at 868). The judge also credited the possibility that Mother’s motivation was, in part, to keep the children from Father. Mother had failed to inform Father about information relevant to the children and did not encourage communication between Father and children when they were not in his care. The GAL report, which the judge cited, also referenced the idea that she was motivated diminish the relationship between Father and the children. (The appeals court took pains in footnote 7 to comment that simply citing a witness’ statement was not the same as a finding, which the judge needed to do).

In addressing the interests of the children, the judge found that the proposed move would not be in their best interest. He discredited mother’s claim that her new job would give her more time with them. He found that the South Carolina schools they would attend would be inferior to the Massachusetts schools they would be leaving; that base housing in South Carolina was not up to that of Massachusetts’ National Guard standards; that the new schools would not address the children’s special needs as well as Massachusetts had done; and the economic level of the area in which the children would reside would be “far below the neighborhood in which they currently reside.” (at 869). He also held that both boys

have demonstrated difficulty with transition both at home and at school,” the judge expressed concern that the children would be separated both from their father, to whom they had a “strong attachment,” and from their grandmother, who cared for the children when the parents were either working or on military assignment. In return, the children’s only family contact in South Carolina other than their mother would be Pizzino, who had to date spent little time with them. (ibid).

Discussion. The Court framed its comments in the context of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985), and related cases. It noted the sequential analysis a court must do in making such a determination and opined that “a supportable finding that there is no “real advantage” to the custodial parent from the contemplated move ends the analysis, and requires a determination that the judgment shall not be modified to permit the removal.” (at 870). If the court were to find that there was a “genuine, recognizable advantage” to the custodial parent, the question then would shift to whether such a move would also be in the children’s best interests, although the fact of the move being demonstrably beneficial to the custodial parent “remains a significant factor in the equation.” (ibid). They added, “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.” (ibid). The Court cited Yannas with respect to the balancing of factors related to the child’s interests as well as to the interest of the non-custodial parent, who “has an independent interest in continued, meaningful involvement with the upbringing of his or her child.” (at 871). They also cited Yannas in noting that the fact that a change in visitation due to the removal might disadvantage the non-custodial parent “cannot be controlling.” They go on to note how these several criteria have been applied in recent removal cases (all in 2006) and emphasize that case decisions “plainly turn on fact finding.” (ibid).

In addressing the instant case, the Court reiterated that the judge had found that Mother’s desire to live with her new husband did not offer a ‘real advantage’, and that her reason for wanting to move – that is, to be with her new husband – was “not a good and sincere reason.” (at 872). The Court also reported that the judge had opined that, even if Mother’s plan did provide a ‘real advantage’, if was “not necessarily in the best interests of the children.” (ibid). The Court then suggested the trial judge believed that no circumstances had changed post-judgment, because Mother began her relationship while still married to Miller; thus, any changes had happened before the judgment was given and could not have been the basis for the modification. The Court disagreed and noted:

In the present case, the mother’s marriage is plainly a material and substantial change in circumstances occurring subsequent to the date of divorce. The judge’s contrary treatment contributed to his devaluation of the mother’s marriage as a factor to be considered, and may well have had a significant effect on his over-all treatment of the case. (at 873).

The Court compared its opinion in Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 448 (2006), where the Court supported the judge’s opinion that, in that instance, a desire to join a new spouse was “not a good reason for a move because we were satisfied that his analysis of the child’s best interests was sound and therefore that his decision not to approve removal was justified.” (ibid). However, in the instant case, they concluded that “a sincere desire to be with a spouse is, per se, a good and sufficient reason (emphasis added) that requires a finding that there is a real advantage to the custodial parent in moving.” (ibid). They then add:

It is not our function as judges to conduct reviews of the wisdom of decisions of competent adults to marry. Once the fact of the remarriage is accepted, it follows that the desire of a spouse to be with his or her marital partner is a natural and appropriate response that the law is required to acknowledge. A finding that there is no “real advantage” to the spouse in such a move is illogical and impermissible.

The Court reported that the judge seemed to be struggling with the Mother’s mixed motives, one of which was to “interfere with Father’s relationship with the children,” and the other of which was that her desire to live with her new husband did constitute a “good and sincere reason” for moving. The guardian ad litem had expressed a concern that the distance between homes, in the event of a move, would make it even easier for Mother to exclude Father from the children’s lives.

The court continued:

Mixed motives of these kinds can be difficult to unravel. To the extent possible, a trial judge must attempt to identify whether a proper or improper motive is the predominant stimulus for the custodial parent’s desire to move. “The judicial safeguard of th[e]se interests [of parents and child] lies in careful and clear fact- finding.” Yannas, supra at 712. However, if the mixed motives are so intertwined as to be inseparable, and the judge is unable to determine a predominant objective in the custodial parent, we believe that if the judge concludes that the desire to be with the new spouse plays at least an important part in bringing about that parent’s desire to remove, then such a finding satisfies the requirement that the move bring about a real advantage to the custodial parent. (at 874).

The Court then stated that it was vacating the order denying removal, returning the case to the trial court, and requiring the judge to accept the new marriage and motivation to move as sincere reasons, unless the judge were to find that Mother’s wish to interfere with the children’s relationship with Father was the paramount reason. If the judge concluded that Mother’s wish to move was indeed advantageous, he must follow through with the other tests of the children’s and the father’s interests. The Court felt that the judge’s devaluing of Mother’s remarriage affected his subsequent treatment of the children’s interests, since, as they stated earlier, her status is an important factor then in weighing the interests of the children, since they are likely to be directly affected by that status. Since he did not find any advantage to her move, “perhaps erroneously,” he gave no weight to that advantage in analyzing the children’s interests.

In a secondary appeal in this case, Mother argued that the judge depended too heavily on the GAL report. After noting that the GAL can be cross-examined and any hearsay in the report be questioned, it stated, “The guardian ad litem is free to make recommendations, “provided the judge draws his own conclusions and understands that ‘the responsibility of deciding the case [is] his and not that of the guardian.'” Delmolino v. Nance, 14 Mass. App. Ct. 209, 212, 437 N.E.2d 578 (1982), quoting from Jones v. Jones, 349 Mass. 259, 265, 207 N.E.2d 922 (1965).” (at 876). The Court opined that the GAL report was properly admitted and, while the judge referred to it, he did his own independent and critical thinking about the case.

Comment: This was the fifth removal case in 2006. It appeared to state that the desire to live with a new husband and move to his location with the children should be given the weight of a “good and sincere reason” in itself, absent factors that might contravene that. If, in a mixture of motives, the desire to live with a new spouse is pre-eminent among other reasons (including intent to interfere with the Father-child relationship), that would seem to suffice as a ‘real advantage’ to the moving parent, although that does not presuppose that it would also be in the children’s interest. It appeared that this case differed from Dickenson, because the new spouse in that case chose to move to California, when he could have lived anywhere and where there was no financial advantage to him to live there. In that case, the trial judge did credit that Mother would be happier living in California with her husband and would have more time with her family. Yet he found no financial advantage to the move and credited the difficulties of cross-country travel. Significantly, he found no motivation by the moving parent in Dickenson to undermine the children’s relationship with their father, whereas that did exist in Pizzino. Yet, the Court upheld the trial judge’s denial of the motion to relocate in Dickenson. The importance of this case – compared to the others – is that the Court emphasized that the trial judge should not devalue the desire to live with a new spouse and, absent countervailing factors (such as her motivation to undermine the children’s relationship with their father or the lack of financial benefit), it should be considered a ‘real advantage’. In this case, by remanding to the trial court, the Court left the door open for the judge to re-weigh the relative significance of the intent to interfere with Father’s relationship with the children in balancing of interests that Yannas requires.

ROSALEE A. ABBOTT v. MICHAEL A. VIRUSSO, JR.

APPEALS COURT OF MASSACHUSETTS

68 Mass. App. Ct. 326; (2007) at: http://masscases.com/cases/app/68/68massappct326.html

Keywords: Removal, Divorce and Separation, Modification of Judgment, Child Custody.

GAL Highlight: This decision directs the GAL to focus on the various interests of each family member, as the Court weighs those factors against one another. Here, the trial judge had determined that the child’s close relationship with Father would suffer were he to move with Mother to Arizona (AZ) and that the travel stress would be significant for him. These factors prevailed over Mother’s interest in living in Arizona with (and marrying) her fiancé. The Appeals Court reversed, noting that Mother had been the primary caretaker, that there was a “real advantage” to Mother to move to AZ with her fiancé, and that her interest in moving was sincere. In addition, the decision further reminds the GAL to focus on what caretaking functions the parents actually performed and the pattern by which they performed them, rather than on what legal custodial arrangement they had agreed to at the time of divorce.

Background: The parties had a 15-year marriage in which Mother had been the primary caretaker. At the time of the trial, the daughter (13) was living with Father and was estranged from Mother. The son (9) lived primarily with Mother, but he saw Father. The Judgment ordered shared physical custody, although the parenting plan involved the children living primarily with Mother. She then became engaged and was living with her fiancé; she filed a modification requesting permission to move with the son to AZ, where her future husband resided. Father counter-filed for sole physical custody. At the removal/ modification trial, the court denied both parents’ motions. The case was decided under the “real advantage” standard as determined in Yannas, 395 Mass. at 704, where one parent was considered to be the primary caretaker and not under the Mason formula (Mason, 447 Mass. at 177), where neither parent was the primary caretaker. The Court cited the A.L.I. Principles §2.17 (4) (a), as they related to cases in which there was a clear primary caretaker:

The court should allow a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose. Abbott v. Virusso, 68 Mass. App. Ct. 326, 330-31 (2009); Principles, at § 2.17(4)(a).

Then, under Yannas, when the moving parent has met the “real advantage” test, the focus turns   to whether it is in the best interests of the child to move with that parent. The advantageous basis for the move continues to be a factor even in “best interests,” since, as the appellate courts have stated so often, the interests of the children are intertwined with the interests of the custodial parent who wants to move. See Yannas 395 Mass. at 710.

In this case, the Court found that Mother had a sincere reason for the move and did not harbor   any motive to deprive her ex-husband of a relationship with their child. Further, it was evident that she would benefit socially and emotionally as a result of her re-marriage. She would also be more financially secure and would earn as much if not more in AZ as she had in MA. Despite the findings that supported the personal benefit to her of the move, the trial judge denied her the    right to move her son with her. The judge based his/her decision on the evidence that it was not   in the child’s best interest to move. First, because of the boy’s close relationship with his father (and   the resulting loss of that closeness) and, second, some difficulties in the practicalities of father-son contact in MA, if the son were to move away and then come back to visit here. The judge also credited the superiority of the local MA school system over the one in Tucson, AZ. The wishes of the child to remain here were also taken into account.

The Appeals Court reversed, noting that “best interest” is not the sole test. The Court determined that the judge did not account for the interests of all the parties involved in his decision. The judge did not include findings about the advantages to the boy if he were to move, about the interests of Mother, or about the nature of the relationship between Mother and the son.

The Court briefly considered one other issue – sibling relationships. The trial judge had credited the importance of keeping siblings together in denying removal. The Court noted that the sibling relationship should not be more important than the mother-son relationship, but it was one factor to be considered in assessing “best interest,” as long as the trial judge provided specific findings related to that issue other than children’s statements of preference. A key fact in this particular case, however, is that the siblings had not lived together for several years at the time of the divorce judgment. During the pendency of the divorce, Father sought “an ex parte order for custody of [the daughter], removing the child from the marital home and separating her from her brother.” Abbott, 68 Mass. App. Ct. at 327.

Dissent: One of the three appellate judges wrote:

I do not believe that the judge here abused his discretion by denying the mother’s petition to remove one of her two children across the country. I further believe that the judge conducted a thorough hearing and issued a thoughtful decision, taking into consideration the necessary factors in his determination of what was in the best interests of the children. I, thus, respectfully dissent. Id. at 339.

The dissent in this case credited the trial judge for considering all the family members’ interests, in direct contrast to what the majority wrote. The dissent supported the judge’s discretion to give differential weights to the various factors and noted the judge had been transparent in listing the various benefits. The dissent thought the judge was within his discretion to credit the negative effects of removal on the closeness of the father-son relationship and to give weight to the importance of the sibling bond more than other factors. It noted that a Family Court Clinic evaluation did not support removal, while the GAL report did support it, so that the trial judge had conflicting opinions that he considered. It also compared the facts in this case to Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 444-446. (2006), in which the Court denied removal because of the great stress that cross-country travel would place on the child, especially given the strength of the father-child bond and that father’s involvement in the child’s life, as the dissent stated,

“[t]he very concerns raised here.” (Abbott, 68 Mass. App. Ct., at 342) The dissenting judge did not believe this case was even a “close call,” and thought that the facts showed that the “advantage” of removal to the mother was “clearly” surpassed by “doing what is best for  her children.” (Id. at 343). He stated that it was in the best interest of both of the children that the son not be relocated.

Comment:

Coming so soon (February 2007) after the string of removal cases in 2006, Abbott appeared to add to the confusion generated by the appellate courts in their 2006 decisions. Obviously, these cases are fact-specific, but it is hard to perceive any pattern that would lead to consistency or predictability in the law. Abbott borrows heavily from the A.L.I. Principles as they relate to relocation issues, but in this case the majority and dissenting opinions appeared to weigh the same facts differently, in that the majority credited the financial and social benefit to Mother of marrying her fiancé – in effect making that the “real advantage,” while the dissent credited it far less than the potential damage to the father-son bond produced by the relocation (and reminded this reader of the similarity to Dickenson, where the Court denied relocation). The dissent also emphasized the stress of cross-country travel for the son to see Father (citing similar circumstances in an earlier decision), although it did not appear to factor in the possibility that a parent would accompany the boy on these trips.

As in other A.L.I.- related cases, the recent decisions in removal cases will push GAL’s to fact- find carefully with respect to “valid purpose,” “good faith,” and “location reasonable in light of the purpose.” In addition, if a contest exists over who performed a large enough majority of the “caretaking functions” – as distinguished from “parenting functions” – the GAL will be asked to do a thorough behavioral assessment of those two roles.² Finding corroboration of parental self- reports can be a challenging investigative task, yet that is what is essential to a valid determination of which parent was the primary caretaking parent. The A.L.I. writers noted that this kind of factual examination is more consistent with the kinds of evidence trial courts regularly weigh and is more reliable than the evidence often supplied by “experts,” which the writers considered to be more subjective in nature.

In Abbott, Mother had clearly been the primary caretaker. Under the Principles, when there is a clear caretaking parent (someone, according to A.L.I. Principles, who does 60-70% of the hands- on caregiving) and if that parent satisfies the three tests of “valid purpose, good faith, and   location reasonable in light of the purpose,” (Id. at 330) they will also satisfy the (Massachusetts) “real advantage” standard and likely be allowed to move. The majority opined that Mother satisfied those three tests. While one still has to give some weight to ‘best interest’ issues, “real advantage” continues to be the significant factor where there is a primary caretaker, which, once established, would likely require compelling evidence that relocation was not in a child’s best interest for the court to deny removal (such as might depend on the nature of the child’s relationship with his/her other parent, or, with a mature adolescent, his or her wishes with respect to the move, as noted below in Altomare v. Altomare, 77 Mass. App. Ct. 601 (2010).

One other factor at issue, the respective strengths of the school systems, was downplayed by the majority. It suggested that, as long as the proposed new school system was “appropriate to the child’s needs,” (Id. at 334) it would not be a major variable of interest. Where a child has some special needs, it would logically follow that a careful examination of each system would be desired, but the fact that one system was clearly superior would not necessarily be determinative.

One difficult task for a GAL (and perhaps only a court can decide this) is to weight the benefits that might accrue to a child as a result of the increased happiness of his/her custodial parent as against the costs to the child of altering a significant relationship with his/her non-custodial parent. The writer does not know of any clinically or scientifically reliable formula to apply to that assessment, so the task of the GAL might be to delineate the costs and benefits without making conclusory statements as to which he or she credits more.[8]

2 For a description of those two roles, see page 20

CHRISTOPHER PRENAVEAU v. SARAH PRENAVEAU

APPEALS COURT OF MASSACHUSETTS

75 Mass. App. Ct. 131 (2009) at: http://masscases.com/cases/app/75/75massappct131.html

Keywords: custody, removal, visitation, division of property, property division.

Highlight for GALs: This case reminds GALs to exercise due diligence in evaluating the interests of all the parties to the litigation. The Appeals Court noted that the trial judge needed   to do a “searching inquiry” about these factors, and so the task of the GAL is to assure that all the relevant facts are available for review by the parties, the attorneys, and the court. There is some controversy as to whether GALs should make recommendations on the legal question in a removal case. Notwithstanding that, it does behoove them, as noted in the commentary on Abbott v. Virusso above, to understand the different analyses they might do related to the   pattern of the caretaking responsibilities performed by the parents during the marriage or after the separation/divorce.

Background: After eight years of marriage, Mr. Prenaveau (hereinafter, Father) filed for divorce in 2006. They had two children, a girl, age 3 (born 2003) and a boy, just under 1 (born 2005) at the time of the filing and lived in Stoughton. Both parents had worked for company owned by Ms. Prenaveau’s (hereinafter, Mother) father. Mother earned more and working longer hours than her husband. Despite Father’s lighter work load and more flexible work schedule, much of the child care was performed by au pairs, with one of whom he was having an affair. Prior to separation, the Court found that Father spent “only slightly more time with the children” than did Mother. Id at 491. After Father filed, he co-habited with his wife in the home and shared legal and physical custody with her. When that proved unworkable, he and the former au pair moved together to the next town and had parenting responsibilities for children about a third of the time at his place. Father hired a new au pair, while Mother reduced her hours with her father’s company to about 25-30/week. They did not alter the legal/physical custodial arrangement. The court ordered him to pay child support.

Fatehr lost his job and eventually was hired by the NH State Police as a trainee. He grew up in NH and had family there. He moved to NH in August 2007, which resulted in significant time in the car for the children as they shifted between homes. On August 3, 2007, a new temporary order awarded sole physical custody to Mother, allowing Father to see the children three or four weekends/ month. That order remained in effect for about 18 months until April 2009. Father was then assigned to a part of NH that required him to live in Gonic, NH, about 100 miles from Stoughton, MA, a trip that took over three hours one way. At trial, the judge agreed with Mother that the travel was onerous to the children.

The trial judge used the GAL report to credit the close relationship the children had with each parent and the need for that relationship to continue, albeit in the context of significant mistrust and animosity between the parents. The GAL finished the investigation before Father moved to NH, so data about the impact of that move on the children was unavailable through the GAL process.

The trial (seven days over 11 months) was presided over by a new trial judge. Revising the terms of the August 2007 temporary order, the new judge modified the parenting plan and ordered the children to move in with the husband in the latter’s residence in Gonic, NH. As a result, Mother received less time with the children than her ex-husband did and she also had the burden and expense of driving to see them (her parents had a home not far away in NH, where she could have the children on weekends). The trial judge stated that he had allocated time about equally between the parents, but the Appeals Court found that, in reality, Mother would only have about 4-6 nights/month with the children, as they were both in school full time during the day. The Court noted that the trial judge viewed his decision as a reasonable compromise between each parent’s position (although father’s proposal was not noted in the trial court decision), but the judge’s reasons for his decision “were not immediately apparent” from the decision itself. Mother was able to obtain an expedited appeal to be heard before the school year began (case heard in June 2009 and decided in August 2009)

Discussion:

As noted in the highlight above, the critical issue in this removal litigation was what type of analysis was relevant to deciding the case. Either it was Yannas v. Frondistou-Yannas, 395  Mass. 704 (1985), where one parent had been the primary caregiver, or Mason v. Coleman, 447 Mass. 177 (2006), where parenting responsibilities had been fairly equally shared. “The main distinction between the analyses set forth in the two cases comes down to the weight that   should be assigned to the benefits that relocation would provide the parent seeking to move.” (Prenaveau, 75 Mass. App. Ct. 131, 139 (2009). The Court notes that Yannas gives weight to the benefits that would accrue to the children because of the advantage to the parent in his/her move, while Mason does not give that same weight to those benefits. In each case, the best interests of the child are paramount, but are more entwined with the “real advantage” to the moving parent in a Yannas analysis. The Court indicated that it appeared that the judge  analyzed the case under Mason. Regardless, the Court opined, the judge did not make a “searching inquiry” as to how his decision, given the distance between homes, was in the best interest of the children. In fact, it said, significant distance between residences – as exists in this case – is often a contraindication for shared physical custody.

In criticizing the Judgment, the Court noted that the children’s lives were spent in Stoughton, where they attended school, associated with friends, and regularly saw their maternal grandparents. Their life in Stoughton “provided a baseline” against which to determine if such a change was in their interest. Then, surprisingly, the Court referred to a 1965 case, Jones v.

Jones, 349 Mass. 259, 264 (1965), using outmoded terminology, “Before allowing “”[t]he uprooting of [children] of tender years,” the court must examine whether there are ‘compelling reasons’ to do so.” (Prenaveau, 75 Mass. App. Ct. at 142, (emphasis added)). There were reasons the Court cited that did not support removal. For instance, the Court noted that the children saw their maternal grandmother regularly in Stoughton (far more than their paternal grandmother in NH) and the parents had availed themselves of the more accessible medical resources in Boston for the daughter (she had a medical condition that was stable, but needed Boston hospital attention when it was acute). The trial judge failed to address the impact of moving the children from Stoughton – where, as noted, their lives had been established and settled – to Gonic, NH. He opined that such a move was in their best interest, but he failed to lay out supporting facts for such an opinion – that is, what was beneficial to them in moving.

Whatever established connections the children had to NH and whatever their noted flexibility   of personality (making adjustment more possible), the Court said that these were not sufficient reasons why they should move to NH with their father. The judge also failed to consider alternative arrangements and seemed not to have considered the possibility of keeping the children primarily in Stoughton. The Court noted that Mr. Father could have chosen an assignment closer to the MA border, which option would have been consistent with the sacrifices parents often have to make if they want to work out a shared parenting arrangement. Finally, the Court was critical of the trial judge’s desire to establish a shared physical custody plan in the face of significant problems in the distance between homes. Given that challenge, the Court noted that the trial judge should have given consideration to having one parent be the sole physical custodian. Due to those failings, the Court of Appeals reversed the removal decision and remanded the case back to the trial court for further review, based upon the factors raised in the opinion. The Court ordered the children returned to MA by the end of August (so they could start school in Stoughton).

The Court then discussed how the trial court might proceed in addressing certain facts that were suggested at trial. These include the relative flexibility of each parent’s work situation and how that might affect their ability to parent, the actual amount of time that the children had been in the primary care of their mother (counting the time since separation), or the stability of the father’s living situation with his paramour, a former au pair. She was a Panamanian national whose commitment to staying in the US was unknown. Essentially, in its remand, it asked the trial court to do a complete review of the custodial issues as well as the impact on possible removal.

There were other issues addressed by the opinion, including property/financial concerns. In the end, the Court reversed the trial court on all the issues and remanded for rehearing on them.

The case was then reheard by the same trial judge, resulting in another appeal (see Prenaveau   II, pp. 31-33). The dissent in this case focused on the missing recordings of the GAL testimony, and suggested that, rather than re-hearing the whole case at great expense, the trial court move to hear the GAL on the relevant issues.

Comment:

This is an unusual case of removal, tempting one to read between the lines of the opinion regarding how the trial judge came to his decision, since the facts as presented did not seem to support removal. The Appeals Court opinion reminds GALs again to consider all the relevant factors – advantages and disadvantages – for all family members. In this case, a GAL might  offer data regarding the impact on the children of moving to NH from their established community, where they had friends and family or what alternative arrangements might have satisfied their need for close and continuing contact with their father. In addition, as with   Abbott above (and others), it is essential to understand the differences in types of removal cases between Yannas or Mason, and, as a mental health GAL, to investigate all the relevant issues subsumed under either type. To reiterate, a Yannas analysis considers the interests of all the parties, including:

1. the sincerity of the desire to move, the interest of and advantage to the moving parent (if that parent had primary parenting responsibilities),
2. the best interest of the child, including:

• life improvements flowing from the improved economic, social, or emotional life of the moving parent,
• the effect of the move on the relationship with the non-custodial parent, and
• the effects of the move on the child’s emotional, physical, or developmental needs

1. the interest of the non-custodial parent (including the significance of the ongoing relationship to the child) and,
2. alternative solutions to the

A Mason analysis considers all of the above factors, but it provides no extra weight to the advantage of the moving parent, (i.e. it is just one “relevant factor”) since each parent has the status of primary caretaker. Thus, the paramount issue is the best interest of the child, including the effect of the proposed move on the child’s best welfare.

Absent an affirmative order for a recommendation, it is not the responsibility of the GAL to decide which type of analysis is paramount, as that is a legal determination. However, it is helpful to the court for the GAL to examine issues of parental responsibility (as delineated by A.L.I., for instance, in caretaking and decision-making), parent-child relationships, and parent- parent relations, and to show how those factors apply in either type of removal case. In that way, the court has all the information available at the time of the evaluation, regardless of which analysis format it decides to use. Even with a request for a recommendation, it is questionable whether a GAL should make a recommendation on the legal issue, perhaps settling for providing the court with a series of “if-then” options that would account for the various alternative outcomes with possible effects on the children.

A last comment is on the Court’s use of what would appear to be an anachronistic term, “tender years doctrine,” as it referred to a 50+ year old case in MA law, Jones, 349 Mass 259. Its use in the instant case could be interpreted as an important factor to consider when there is a motion for removal of children under seven and may speak to concerns about attachment, as the use of that concept becomes more widespread in family law.

The writer followed up on the results of the remand in this case. It was heard again in five more days of trial in November 2009, March and May 2010 (12 days in all). There had been a second GAL appointed, as the original one could not serve. In meeting the goal of providing consistent and regular contact with both parents and minimizing the burden of travel on the children, in the Amended Judgment the court again ordered that the children should live primarily with Father in NH, with three long weekends (through Monday morning if she were to be in NH) with Mother. If she wished to be in NH, she could start her weekends with them on Thursday after school, with notice to Father. The judge then split holidays, vacations, and the summer period. The judge noted that he had considered alternative arrangements, but found that none of them met the goal of providing consistent and meaningful contact for each parent with the children. In being more explicit about his reasoning, the judge reiterated that Father had done more of the hands-on parenting during the marriage, was more likely to encourage a relationship with Mother than she would have with him, and he was more likely than she to foster their healthy development. The judge also found on several occasions that Mother had misrepresented facts and was less than credible. The judge also specified the compelling reasons to relocate children of “tender years,” that is, why it was in their best interest to move

and live primarily with their father. In the Amended Judgment, the court set mid-July 2010 as the time the children would transition to Father’s home, instead of in the middle of their school year.

In footnote nine of the Amended Judgment, the judge made reference to the concept of “available parenting time,” which he defined as “the time in which a parent is able to interact with the children personally.” Thus, a weekend day contains more “available parenting time” than a weekday, as the children are in school during the latter period. This echoes the parenting time theory the trial judge in proposed in Katzman v. Healy, 77 Mass. App. Ct. 589 (2010). That court proposed to define parenting time as children’s waking hours at home, excluding sleep  time, school time, and summer camp time, a theory the Appeals Court explicitly rejected, as it stressed the importance of a parent being available to a child during their sleep time. In addition, the schedule the trial judge ordered, by his own thinking, reflected what the children had experienced when the parties were married (i.e. more interaction with Father during the week). In the Amended Judgment, the judge referenced the A.L.I. approximation idea and cited Custody of Kali 439 Mass 834, 842-843 (2003).

PATRICIA M. ALTOMARE v. JOHN N. ALTOMARE

APPEALS COURT OF MASSACHUSETTS

77 Mass. App. Ct. 601 (2010) at: http://masscases.com/cases/app/77/77massappct601.html

Keywords: Divorce, custody, parent and child, (in-state) removal

Highlight for GALs: One important feature of this opinion is the requirement for GALs to perform a “functional analysis” of the parenting responsibilities of each parent, including those involving direct caretaking and other parenting functions (such as suggested by A.L.I.). ³

Background:

As part of the divorce proceeding, Mother asked permission to move from what had been the marital home in West Boylston to Scituate, about 75 miles away. There had been a long-term marriage and three children, ages 16, 12, and 11 at the time of the separation. With respect to custody, the trial judge entered a confusing judgment that denied Mother’s request to move and ordered “shared legal and physical custody” with the children primarily residing with the wife. (Altomare, Mass. App. Ct. 601 at 602). The judge ordered that Father could have parenting time with the children “at reasonable times, as agreed upon by the parties.” Mother appealed both aspects of the Judgment (in addition to her appeal of the distribution of the marital estate).

Discussion:

1. Relocation:

Citing D.C. v. J.S., 58 Mass App. Ct. 351 (2003), the Appeals Court applied out-of-state removal principles to this in-state relocation request, because the move was of some distance.

(See also Tammaro v. O’Brien, 76 Mass App. Ct. 254 (2010). The Appeals Court discussed the differences in analyzing cases, depending on the pattern of caretaking responsibilities the parents had prior to the inception of the litigation. As in other cases, it compared the factors to be considered and the weight afforded to each of them, whether it was a Yannas (one primary caretaker) case or a Mason (shared parenting) case. The Appeals Court repeated the idea that Yannas and Mason are at opposite ends of a “custody spectrum,” Mason, 447 Mass. at 175. The analysis depends upon the nature of the custodial arrangement prior to the request. The Appeals Court stressed that it was incumbent on the trial judge to “consider the functional responsibilities and involvement of each parent,” regardless of the nature of the legal custodial arrangement. Id.  at 175.

2. Shared or sole physical custody:

Here the Appeals Court noted how statutory law has defined these two different custodial arrangements, but it emphasized “the label we attach to custodial status results from a factual inquiry.” (Id. at 606, citing Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 776 (2006)).

3 American Law Institute (2000). Principles of the law of Family Dissolution: Analysis and Recommendations. Philadelphia: A.L.I.

Reviewing the findings, the Appeals Court noted that the children resided primarily with Mother, spent the majority of their evenings (overnights?) with her, while seeing their father on alternating weekends and one night/week. The trial judge even noted in her decision that Mother had “unquestionably” been “more of a traditional custodian” in terms of parental responsibilities. Using a functional analysis of parenting, the Appeals Court determined that Mother had performed as the sole physical custodial parent, contrary to the findings of the trial judge.

3. Real advantage analysis:

Having re-characterized the custodial arrangement as sole physical custody to Mother, the Appeals Court applied the “real advantage” test to her request to move. Mother said she felt uncomfortable living in the marital home in their small town, where the woman with whom Father had an affair also lived and whom Mother might meet in town (they had been friends before Father’s affair). Moving to Scituate would provide her with a supportive social network and could “help restore her emotional health.” Id. at 606. Mother asserted that the move would   be “a fresh start…[and would (give her)] new enthusiasm for life…new energy for life and for  my child…make a huge, huge impact on my life and the life of my children – positive impact.” Id. The trial judge noted that, while there would be a support network in Scituate for Mother, she had no “particular personal, family, or professional roots in Scituate.” Id. at 607. Though Mother was an attorney, she did not provide any specifics about professional prospects related to the move, other than a plan to obtain family court appointments.

Reviewing Mother’s reasoning for moving, the Appeals Court indicated it found that her rationale was sincere. The Appeals Court noted, “It is undisputed that a parent’s happiness can affect the quality of parenting,” and observed that she had an interest in developing a supportive network in Scituate and had no roots in the West Boylston area (where Father grew up). The Appeals Court also found “no evidence that the wife seeks the move in order to deprive the husband of access to his children.” Id. at 607. In fact, the trial judge found that their ability to make parenting arrangements for the children during the separation period was commendable. Mother was willing to shoulder some of the driving burden between residences to ease the drive for Father. Reversing the trial court, the Appeals Court concluded that Mother had demonstrated a “real advantage” for herself in the move.

4. Best interests analysis:

The trial judge found that the children had many friends in the Worcester area and were involved in many activities that relocation would adversely affect. The children spent much time with father’s extended family, which would be more limited in the event of a move. Mother had not provided comparable school data. Additionally, Father was deemed to be “excellent and involved,” and active in his children’s lives. Id. at 608. The move would “significantly disrupt   the husband’s visitation rights,” particularly as there was a 75-minute drive between the residences. Id. at 608-609. However, in its decision, the Appeals Court found that the failure of the trial judge to find any real advantage to Mother was compounded by a failure to weigh the benefits of the proposed move to the children, as the trial judge calculated just the adverse effects of this move. The Appeals Court noted that the trial judge made a determination that reflected a shared physical custody, Mason-like analysis, which negated the “mother’s [effective] role as   sole physical custodian.” Id. at 609.

The Appeals Court ordered a remand to determine the best interests of the children, with particular focus by the trial judge on the impact on the children of Mother’s unhappiness in West Boylston. The Appeals Court suggested that the trial judge inquire about the children’s views, perhaps through a GAL who would “evaluate their expressions of preference in light of each child’s age and maturity.” Id. at 610. The trial judge was asked to review the parenting plan and the practical effect on Father’s time and any alternative plans to maintain the relationship, including any changes since the Judgment was entered.

Comment:

As in other removal cases, the Appeals Court emphasized that there should be a “functional analysis” of the hands-on caretaking functions as well as more general parenting functions that existed during the marriage. This is consistent with the A.L.I. Principles differentiation of types of parenting (see below). One weakness of this method is that it suggests that the functional analysis is a measure of children’s attachment to a parent or of the quality of that relationship. Other cases (e.g. Custody of Zia, 50 Mass. App. Ct. 237 (2000)) have suggested that the quality of the relationship to each parent is relevant. Even in the instant case, the Appeals Court opined that the happiness of a parent could, indisputably, affect the quality of that person’s caretaking. Thus, the GAL should attempt to assess relationship quality and include it in the report. The GAL should also, to the extent possible, examine the effects of the emotional state of the parent who wants to move and the effects of that on the children (both if the move were to occur and if the request to move were to be denied).

In the instant case, the findings of the trial court suggested that both parents were involved with the children, even though Mother had been the primary caretaking parent. There was little data about the children themselves (at least as reported in the opinion), although the Appeals Court did suggest that the trial judge on remand solicit and weigh their preferences and feelings, perhaps through a GAL interview of them. They were all old enough to be able to share their experiences of each parent, whether any of them were willing to express a preference or not.

Thus, one might estimate the effects of a move on any of the children, and thereby help the trial judge to factor that information into his/her decision.

Another aspect of this case that interested the author was Mother’s rationale for moving, especially since she did not offer much in the way of practical benefit. She had no job or any family in Scituate and perhaps had just a few friends. Her reasons were emotional – increased happiness, decreased stress (from potential of meeting ex-husband’s lover), and more enthusiasm for life – all of which she suggested would extend to her parenting and, thus, benefit her children. While it is hard to argue with the idea, it consists of a rather abstract set of notions. Could she not have moved to Shrewsbury – the other side of Worcester, away from the husband’s lover, but close enough so that the drive between towns would not be burdensome on the children – who would have to spend an hour to ninety minutes (not counting traffic) each way in the car? That potential emotional gain to her and the absence of any motivation to limit Father’s access to the children was credited more by the Appeals Court than by the trial judge (but for some recent social science data on this subject, see author’s footnote in Rosenwasser, below). A further issue, perhaps addressed in earlier commentaries on removal opinions, was the necessity to assess whether the move would benefit the children in some way, once it was evident that there was a benefit to Mother to move. In this case, the Appeals Court directed the trial judge on remand to perhaps solicit the children’s wishes and feelings, as they were of an age at which such information could be considered in the calculus of their best interests.

SUZANNE HOPE TAMMARO v. KEVIN FRANCIS O’BRIEN

APPEALS COURT OF MASSACHUSETTS

76 Mass App. Ct. 254 (2010) at: http://masscases.com/cases/app/76/76massappct254.html

Keywords: Divorce, Separation, Child Custody, Removal.

Highlights for GALs: Where the facts indicate a sincere reason to move and clear improvement in employment and life circumstances of the moving parent, as well as benefits for the children, the court is likely to approve relocation. Where the moving parent was clearly the primary caretaker, the analysis of the factors will occur under Yannas.

Background: Per their 2005 separation agreement, Mother had physical custody of the four children and the parents shared legal custody. They had a detailed parenting plan and a parenting coordinator. Both parties lived within three miles of each other in Brockton. One week after the Judgment of divorce nisi, Mother filed a Modification. She had worked from home during the marriage and after the separation as a health care consultant to different hospital systems. Father was a professional baseball scout and traveled often from February to October each year. In the off-season, he had a business running youth baseball camps at different locations in Massachusetts. A few months before the divorce, Mother was in negotiations with Caritas Health Care for a full-time job at Holy Family Hospital in Methuen. She considered buying a house within reasonable commuting distance of Methuen that would allow her to accept that job or continue her consulting practice. She claimed to have been unable to find a house in the Methuen area that met her criteria. Mother eventually found a suitable home in Derry, NH. She signed a purchase and sale agreement on the home in April 2005. She then informed Father, who did not consent to that move. In June 2005, Mother was offered a substantial job with Caritas and Holy Family. She signed an employment contract on June 27, 2005 and her primary work site became Holy Family in Methuen, although she would be overseeing other hospitals in Brockton and Fall River. The trial judge permitted Mother to move to Derry. Father appealed.

Discussion: Father complained that Mother filed a Complaint for Modification, not removal, and the judge should not have heard the removal issue. The Appeals Court affirmed the trial judge’s decision to hear the removal issue. The second issue Father raised was that the judge did not   fully consider the Yannas factors. However, the Appeals Court held that Mother had demonstrated “good sincere reasons” for her proposed move. Her new job was “a positive change” for her “professionally and personally.” Tammaro 76 Mass App. Ct. at 260. The trial judge opined that Mother could have found suitable housing that she could afford in the Methuen area, but also found she had made a good faith effort to seek such housing, albeit unsuccessfully. Mother had not moved into the Derry home and had not told the children about it. She testified that she would sell the home, if the trial judge denied removal. The Appeals Court affirmed the judge’s finding that the move provided a “real advantage” to Mother, as it would reduce work stress, allow more time with the children (much shorter commute), and permit better time management for her. The judge did not agree with Father’s belief that Mother was motivated to limit his time with the children. They had worked out an alternative parenting plan with the help of a parenting coordinator. The Appeals Court further affirmed that, having found a “real advantage” to Mother, the trial judge considered the collective interests of the children, Mother, and Father. The judge had noted the improved living situation of the children and proximity to schools. The judge also considered continuing parenting time with Father and decreased travel time for Mother to her new job by virtue of the move.

Comment: This case presented as a straightforward Yannas analysis, in that Mother had been the primary caretaking parent, worked from home (while Father traveled a great deal), and obtained a job that significantly improved her financial resources. Her motives for moving were deemed “sincere” and without intent to deprive Father of time with the children. Both parents worked (Mother from home) and Father was away from home often for his job. The facts as presented suggested that her work and her parenting were important factors, while his relationship with the children, although solid, did not rise to the level of being severely compromised by the move. In addition, the parties were able to arrange for reasonable alternative parenting time for Father, whose residence would be 90 minutes away. This case can be compared to Altomare (above), where the basis for the move was more emotional and subjective (i.e., increased happiness), but lacking the substantive reason in the instant case (better job and increased income).

ANNA KATZMAN v. TIMOTHY HEALY

APPEALS COURT OF MASSACHUETTS

77 Mass. App. Ct. 589 (2010) athttp://masscases.com/cases/app/77/77massappct589.html

Keywords: child support, physical custody, parenting, modification, separation agreement, removal, divorce, custody, parenting coordinator.

Highlights for GALs:

The case raises the question of how one evaluates the level and type of parental responsibilities each parent performed, the “functional analysis” of parenting, which informs the issue of the type of legal custody (and how a removal case is analyzed). Does one count non-school, waking hours, as the GAL did here (and which the court rejected) or “available parenting time,” as the judge in Prenaveau did? Alternately, does one use the A.L.I. calculus, which divides such responsibilities into caretaking and parenting functions?

Background: The parents had a ten-year marriage. They had two children, a boy, age 5 and girl, age 4, at the time of filing. Their separation agreement included a parenting plan in which they had joint legal custody, while Mother was the sole physical custodial parent, having the children every overnight during the week and alternating weekends. Father had every other weekend with the children and two early evening times with them during the week. In August 2007, Mother became engaged to Mr. Katzman, a New York FBI agent, who could not or did not want to transfer to the Boston office for professional reasons. In September, she amended a March 2007 complaint for modification of child support to include a removal request. Father then counter-claimed and requested sole physical custody. A GAL was appointed in October 2007 and the trial occurred in early 2008. Mother married Mr. Katzman three days before the start of the trial and was expecting a child in October 2008. Father had also remarried (earlier) and was expecting a second child from his marriage.

At trial, the judge found that both parents were competent and had nurturing relations with the children. The boy, age eight at the time of trial, was very attached to both parents, “especially” to his father, and to his stepmother. He was mildly attached to his stepfather, Mr. Katzman,  although that relationship was of more recent origin. He wanted to spend much time with both parents and did not wish to move out of the area. The court took notice of the son’s anxiety about losing time with his father. The girl was close to her mother and to her father and stepmother,  and did not want the parenting arrangement to change. Mother’s motive for moving was to live with her new husband near his job. The court did not find that she had any motivation to impede the children’s relationship with their father. (There were also significant financial issues at stake in these modifications, but that is not included here).

Parenting time issue: Citing M.G.L. c. 208 § 28, the Court noted that an earlier judgment can be changed “provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.” While noting the existing (and historical) parenting plan, the trial

judge ordered a change to a 5/2-2/5, equally shared care, parenting plan (Mon-Tue/Wed-Thu   with alternating weekends) without explaining in findings what circumstances had changed to warrant such a modification. The judge noted that the GAL had recommended this plan. The judge and the GAL explained that this “approximately equal time” plan was consistent with what the parents had been doing, if one took into account their respective parenting times during the hours that the children were awake, discounting overnight time, school time, and camp time. In the decision, the Court described the change as follows: “…during the day rotation . . ., the mother’s approximate percentage of awake time with the children would go from 42% to 36%, and the father’s from 22% to 28%.” The judge did not consider it important for his equality analysis that the mother originally had 82% of the sleep time while the father only had 18%.

Under the new schedule, the mother’s sleep time percentage would drop to 57% while the father’s would increase to 43%.

In rejecting the trial court analysis, the Appeals Court explained that parenting involves responsibility and availability whenever a child is in one’s care, noting, “[t]he law has not, however, neatly divided custodial parenthood into waking, sleeping, and schooling categories. Nor should it. Disregarding sleep or school time ignores that children get sick, have nightmares, and otherwise require their parent’s assistance at unexpected times.” Id. at 594. The Court emphasized that Mother had been the parent responsible for and available to the children, as sole physical custodian, for those years post separation. The trial judge could not, absent written findings regarding what circumstances had changed, simply transform Mother’s custody plan into “an unofficial form of joint physical custody.”

Parenting coordinator: Noting the existing conflicts between the parents that made exchanges stressful for the children, the Court indicated in footnote 6 that this high-conflict state of affairs “was an appropriate  subject for the parenting coordinator (PC) required by the separation agreement, but which had not been implemented.” The Court stated that the trial judge “required the hiring of a parenting coordinator as originally required in the separation agreement. We discern no error in that part of the judgment requiring the parents to select and utilize a parenting coordinator.”

Removal: The Court said that the trial judge offered “an uncertain analysis” of the Yannas test, particularly after Mother’s “real advantage” was established. The trial judge found that Mother had a sound and sincere reason for moving (i.e. living with her new husband and their new child) and no motivation to interfere with the children’s relationship with Father. However, the judge noted that the children were integrated into both families and they felt they had “two homes.” He cited the GAL, who opined…“it is not a ‘psychologically viable alternative’ for the children to move from this area.” Id. at 595. The trial judge also noted that whatever benefit might accrue to the children by living with their mother, who would be happier living with her new husband and child in New York or Connecticut, “would not outweigh the loss they would have of the regular and frequent time in their other home.” The Court explained that, when the judge determined, without written justification, that the parents had possessed approximately equal parenting responsibilities (the calculus for that including non-school waking hours), he minimized the significance of the sole physical custody arrangement that Mother had since the separation.

Yannas states that the determination of sole physical custody is important, since the welfare of the children is “so interwoven with the well-being of the custodial parent.”

The Court remanded the case back to the trial judge for further review and findings, although many months had passed during which the children had lived in the shared custody arrangement that was ordered after trial. The trial judge had noted how difficult a move would be for the boy, but did not explain in any detail or “make subsidiary findings” as to what those disadvantages might be. The Court also asked the trial judge to consider – in the event that Mother has to  remain apart from her new husband (who cannot transfer to this area) – the impact on her welfare and happiness (consider the weight given to that in Altomare (above), decided earlier in the same year, in which the Court put great emphasis on the happiness of the custodial parent resulting from her move). In addition, the   judge was asked to consider – if Mother was not permitted to move with the children – what that decline in her happiness would mean for the children, since she had been the primary physical custodian. Lastly, the Court asked the judge to factor in the issues of travel between homes for the children, particularly since he had written that cost was not going to be an issue for either parent.

The remainder of the opinion concerned financial issues. The Court reversed the decision as to custody and vacated the decision as to removal, remanding that issue to the trial judge for “further proceedings consistent with this opinion.”

Comment: There are two issues of relevance for GALs. One is an unusual, one might say, even creative, method of determining parental responsibility and caretaking. This apparently was a formulation that the GAL undertook and that the trial judge incorporated into the Judgment. In this writer’s experience, research studies use the number of overnights per fortnight as the major metric in distinguishing a sole from a shared-care parenting plan. Moreover, most parents consider the number of overnights of great significance in formulating their parenting plan. The number of hours of active parenting has not been a relevant metric. In Katzman, it was clear (by most standard measures) from the prior parenting plan who had been the primary residential or custodial parent, but it was unclear why the GAL or trial judge did not employ the traditional basis for determining custody and opted for such a novel approach (i.e. counting hours of parenting an awake child, not including school or camp time). As in so many removal cases, the assessment of parental caretaking responsibilities is critical, since the trial court needs that data to assign physical custody to one or both parents. If the facts indicate that the moving parent had been the primary caregiver, the removal analysis would proceed under Yannas and include whether the “real advantage” (should it exist) belongs to that parent and should be given greater weight. Conversely, if the facts indicate that both parents had been relatively evenly involved,  the analysis would proceed under Mason and include the “advantage” to the moving parent as just one factor to be considered among others. Katzman makes clear that, in the parenting analysis, weight is given to parental availability to the child at all hours of the day, asleep or awake, including in the event of an emergency.

Another issue for GALs pertains to the assessment of the moving parent’s welfare and happiness that would result from the move (in this case, living with her new husband in New York), the effects on the children of her unhappiness at being denied permission to move with the children, and the question of the effects of staying/moving on their happiness/unhappiness. The decision begs the question of how the GAL defines happiness in terms for which he or she can provide relevant data.

A second significant issue relates to the Court’s approval, via footnote, of the trial judge requiring the parties to hire a PC. What might have permitted this approval was that the parties had included it in their separation agreement at divorce, but they had never followed through with selecting or using a PC. Query whether the Appeals Court would have approved a PC, if the trial judge had ordered it absent such language in the agreement, especially since there was no statutory authority for such a role and no standing order at that time?[9]

1. MICHAEL WOODSIDE v. SHARRY A. WOODSIDE

APPEALS COURT OF MASSACHUSETTS

79 Mass. App. Ct. 713 (2011) at: case not included in Mass Cases.

Keywords: Parent and Child, Custody, Divorce and Separation, Child custody, Alimony, Removal

Highlight for GALs: This case points out, as in earlier ones, the need for the GAL to do a thorough assessment of each parent’s caretaking and decision-making functions, irrespective of the legal label they have given to their parenting arrangement post-separation or divorce.

Background: The parties were married in 1993 and lived elsewhere until 2003, when they moved to Massachusetts. They had two daughters, the older being 9 and the younger being 4 at the time of the litigation. When the parties separated in April 2008, the children remained with the   mother in the marital home. As a result of the children’s comments about possible sexual abuse, Mother obtained a restraining order in April 2008 and Father vacated the home. These allegations were later investigated and were not supported by the Department of Children and Families (DCF). There were also potential sexual assault charges against Father filed by the local police department. Per agreement, Father initially had supervised time with the girls. Supervision was then withdrawn, pending a GAL assessment. The GAL did not find supervision to be necessary, but noted that Father’s behavior had provided a basis for Mother’s concerns. The parents then settled the custodial aspects of their divorce, agreeing upon joint legal custody, primary residence to the Mother, and alternating weekends and two weeknight times per week for the Father with the children. They then litigated the financial aspects of the divorce. Mother filed a complaint for removal to Maine, which was heard along with the financial contest. At trial, the judge found that her request to move was in good faith and that such move was in the children’s interests. The judge also ordered a combined alimony/child support judgment.

Father appealed, first claiming the judge wrongly applied the “real advantage” standard from Yannas, because Mother was not the sole custodian and, second, asserting that her motivation was to deprive him of a relationship with the children. The Court reviewed past cases of removal, looking at the balance of each parent’s interests and the child’s best interests. The Court noted  that the practical nature of each party’s parenting responsibilities would determine whether the analysis would fall under the “real advantage” standard, as in Yannas, where one parent  performed significantly more of the parenting functions than the other) or the analysis that exists in Mason, where the parenting responsibilities of each parent were considered to be reasonably equivalent. In the latter test, there is no advantage to either parent, because “the fortune of simply one custodial parent [is not] so tightly interwoven with that of the child; both parents have equal rights and responsibilities with respect to the child.” Mason, 447 Mass at 184-185. That is, the parents’ actual division of parenting functions would be more determinative than the type of   legal custody they had. The Court would make a “factual inquiry” to assess how the parents had divided those parenting behaviors during the course of the relationship (see discussion above in Altomare).

The trial judge found that Mother had been the primary caregiver during the marriage and had continued to perform that role after the separation. She and Father had agreed for her to be the primary residential parent as part of their divorce process, with scheduled parenting time to him. Father had deferred many of the parenting functions and decisions to Mother during the   marriage, despite having opportunities to perform them himself. The Appeals Court did not attach significance to the legal label the parties had chosen for their custodial arrangement. Thus, the Appeals Court affirmed that the trial court judge had correctly applied the “real advantage” test, as in Yannas.

As to the second argument regarding good faith by Mother, The Appeals Court noted that the trial judge credited the GAL’s opinion that the move permitted her improved job training opportunities and the potential for greater future income, even though there was no actual job in Maine for which she was hired. Her employment was “speculative at best,” according to the GAL. The judge also credited the fact that Mother was motivated by a desire to be closer to family members. Her quality of life would also improve by virtue of family support and family assistance with child-care. The judge correctly found that Mother’s concern about sexual abuse was reasonable under the circumstances at the time and that she did not thereafter interfere with visitation when it was supervised. Mother also reliably supported Father’s parenting time when supervision was removed.

The Court also ruled that the judge correctly considered the best interests of the children in permitting the removal, as the move would provide benefit to them as a result of the social, emotional, and potential financial improvements in Mother’s life. The judge did consider Father’s interests and the need for the children’s ongoing relationship with him by addressing extended weekend and vacation parenting times and limiting the time the children would have to travel between homes.

The second part of the Court decision addressed alimony and will not be considered here except to note that the Court affirmed the trial judge’s decision.

Comment: First, it seemed apparent based on the background that Mother had been the primary caregiver, a role later reinforced by the terms of the separation agreement. The parents had agreed to joint legal custody, but apparently their document was silent as to any specific determination of physical custody, other than the parenting plan. As in other cases, the Court highlighted the fact that, in choosing the test of analysis for removal (i.e. Yannas or Mason) it will consider the history of functional parenting responsibilities during and after the marriage, and not the legal label the parents might subsequently apply to any post-separation arrangement.

Second, it seemed that the Court credited the potential for increased income or job training opportunities in the absence of any specific employment. That is interesting in itself, as it seemed speculative, as the GAL noted. Third, the Court gave weight to the social and emotional support Mother would receive, because she would be living near family who could provide practical   child care help. The Court indicated that this psychological improvement in Mother’s life would then prove beneficial to the children. Thus, it seems clear that the presence of extended family support, help with child care, and a good faith reason for moving may be a sufficient rationale for a primary caregiving parent who wishes to move, even if employment that could improve her standard of living (and, by extension, her child’s) is only a potential factor.

CHRISTOPHER PRENAVEAU V. SARAH PRENAVEAU II

APPEALS COURT OF MASSACHUSETTS

81 Mass. App. Ct. 479 (2012) at: http://masscases.com/cases/app/81/81massappct479.html

Keywords: Custody, Removal, Visitation, Division of Property

Highlights for GALs: A change of custody case as much as a removal one, Prenaveau II focuses the GAL’s attention on factors that underlie the “best interest” standard, particularly the need to provide stability and continuity of care for a young child whose caretaker has given adequate parenting over a period of time, even if the other parent could offer superior care in some ways. Additionally, the goal of providing maximum involvement and participation of the other parent should be considered through parenting plans, where both parents had been very involved in caretaking, albeit with consideration as to how burdensome it is for a child to be transported back and forth between residences.

Background:

This is the second appeal of a removal case that was also a change of custody case. The entirety of this case lasted six years. In Prenaveau I, the trial judge changed the primary residence of   the children from Stoughton, MA to Gonic, New Hampshire, where Father lived and worked. The judge determined that the parents had essentially shared parenting and that Father would encourage a relationship of the children between Mother and the children more than she would between them and Father. The judge also instituted an onerous travel arrangement between homes, particularly if Mother remained in Stoughton where she lived and worked (she had a summer home about a half hour away from Father in NH). The Appeals Court reversed the Judgment and sent the case back to the trial judge for more detailed findings and consideration of an alternative plan that would allow the children to remain in what had been their primary home (Stoughton), but have enough time with Father in NH.

After the initial Judgment, the children had spent the last quarter of the school year and most of the summer in Gonic, but Mother got a stay of the Judgment so that the children could return to Stoughton for school, pending the re-hearing of the case. After another five days of trial, the trial judge essentially re-affirmed his original decision in an Amended Judgment. Mother obtained a stay of that Amended Judgment, thus keeping the children in the Stoughton schools, and   appealed again. In Prenaveau II, the Appeals Court disputed some of the trial judge’s findings regarding Mother’s lack of cooperation with Father. The Appeals Court based its disagreement   on a detailed investigation by the GAL that was part of the testimony. The Appeals Court determined that Mother had not exhibited a sufficient pattern of non-cooperation or exclusion to outweigh the value of stability and continuity of her adequate care in Stoughton (where she had family support and the children had always attended school). Thus, the removal of the children to live primarily with Father was unwarranted. Even if the record showed that Father could provide for the welfare of the children in a manner equal to Mother, that was not sufficient reason for the trial judge to change residences, given the need for continuity and stability of care of the children in the town in which they had always lived.

In addition, citing other cases, as it did in Prenaveau I, the Appeals Court criticized the burdensome “shuttling” of the children between homes and noted that the amended Judgment did not rectify that problem for the children by considering alternative parenting arrangements. Using the recommendations of the GAL, whose role was remarkably critical, the Appeals Court, in ordering remand, took the unusual step of prescribing a detailed parenting plan that maintained the children in their primary residence in Stoughton and allowed for alternate parenting times (alternating weekends with Father, instead of the three weekends/month for Mother) and extended vacation periods. Essentially, it fashioned an award that provided physical custody during the school year to Mother and during the summer to Father.

Comment: In reversing the same trial judge twice – this time in his Amended Judgment – the Appeals Court emphasized that any removal/custodial decision must consider the stability of the life circumstances of the children, even when the parties have participated in what was described as a shared parenting arrangement. Custodial issues must consider the stability and continuity of care by a competent parent. Removal issues must consider the distance between residences and the possible stresses created by the need for the children to travel regularly between homes. Where that travel might be burdensome for parents and children, alternate parenting   arrangements should be considered, such as fewer trips during the school year and longer periods of vacation time.

IDANIA ELVIRA MURPHY v. DENNIS GEORGE MURPHY

APPEALS COURT OF MASSACHUSETTS

82 Mass. App.  Ct. 186 (2012) at: http://masscases.com/cases/app/82/82massappct186.html

Keywords: Divorce, Custody, Removal, Parenting Plan.

Highlights for GALs: While this appeared to be a relatively straightforward, Yannas-type, removal case, it is distinguished from others in that the two-year old child had counsel. The charge to such counsel from the court was to advocate for the child’s best interests, not for the child’s wishes. Another highlight of the case for GALs was the Court’s explanation of what is included in the calculus of “best interests” in Massachusetts law, much of which is available in Custody of Kali, 439 Mass. 834, 840 (2003).

Background. The parties were married in 2007 and had a child, a girl, in December 2008. They lived in the paternal grandparents’ second home in Chester, MA. Prior to marriage, Mother had resided in New York, where the bulk of her family lived. She originally immigrated here from Honduras. During the marriage, she had the majority of the caretaking responsibilities, although Father was a participating parent. The marital relationship deteriorated and Mother filed for divorce in January 2010, although the parties occupied the marital home together until May 2010. The daughter would have been just under two years old at the time of trial. After May 2010, they agreed to a “nesting” arrangement, whereby their daughter remained in the marital home while Father had caretaking responsibilities in the home from Friday evening through Monday morning and Mother cared for the child during the week. That custody arrangement took effect by temporary order of the Probate and Family Court.

At trial, the judge heard testimony concerning, among other things, Mother’s desire to move with the daughter to New York. The judge found that she had a sister in New York with whom she intended to live and who would assist in providing child care, and that Mother had other family members in the nearby area. In addition, Mother explained that she had a job opportunity working as a hairdresser in a nearby part of Connecticut. Father objected to the move. The judge found that Mother had no motive to use the move as a means to deprive Father of contact with their daughter. The judge then entered a Judgment of Divorce Nisi dated November 29, 2010, which included permission for Mother to move and a parenting plan allowing Father to see his daughter every other weekend and during certain vacations and summer periods. After further hearing on the Father’s motions to stay and to alter or amend the Judgment, the judge issued an order dated December 30, 2010, denying the motion to stay, and allowing in part and denying in part the motion to alter or amend (there were financial issues included in the appeal). This appeal followed.

Discussion. 1. The judge’s removal determination: Father argued that, since he and Mother had shared custody since May 2010, the standard by which the judge decided the case fell should have fallen under Mason (2006) instead of Yannas (1985). The Court discussed the differences between the two cases, in particular the significance of one parent having been the primary caretaker. In that case, the interests of the child are “interwoven,” in the words of Yannas (Yannas, 395 Mass. at 710), with the interests of the primary caretaking parent.

Where caretaking was more evenly shared, the “the benefits of the move to that parent become[s] `greatly reduced,’ and it therefore becomes more difficult for the parent to justify the uprooting of the child.” (Murphy, 82 Mass. App. Ct. at 190, quoting from Mason, 447 Mass at 184-85) The Court also emphasized that an analysis of the functional responsibilities of each parent is essential, since the label for the parenting arrangement is less important than what tasks the parents actually performed. (Citing Woodside v. Woodside, 79 Mass. App. Ct. 713, at 717 (2011)). In Murphy, the trial judge determined that Mother had been the primary caretaker, notwithstanding the more shared pattern of caretaking that occurred between May and November 2010. Therefore, the judge held that the “real advantage” standard of Yannas was the appropriate one.

The Appeals Court, in upholding the trial court decision, affirmed Mother had a sincere reason for moving and was not motivated to undermine Father’s relationship with or his contact with the child. Mother was relatively isolated in Chester and wanted the company and support of family in New York. She also had an opportunity for work as a hairstylist nearby in Connecticut. At the same time, she recognized the importance of the daughter being able to spend time with Father. Considering the case in total, the Appeals Court affirmed the trial court’s determination that   these facts were consistent with a “real advantage” to Mother to move. Father also argued that, even if there were a “real advantage” to Mother to move with their daughter, it was not in the daughter’s interest to move with Mother, given the closeness of his relationship with her and his important role in providing care for her since her birth. He claimed that the inevitable decrease in their time together was not in his daughter’s best interest.

In disagreeing with Father’s argument, the Appeals Court explained, as it had in Yannas, that the interests of everyone in the family must be considered and, in particular, the strength of the child’s relationship with each parent and the impact on the overall development of the child. The Appeals Court must also balance the financial, emotional, and social advantages resulting from the move, the ease of or obstacles to continued contact with both parents, the quality of the schools, and the nature of the new home environment. (See Yannas, 395 Mass at 712). In other cases, the Appeals Court considered the availability of supportive family (See Woodside, 79 Mass. App. Ct. at 719) and any hardships associated with travel by the child to advance contact with the other parent. (See Dickenson, 66 Mass. App. Ct. 442 at 449 (2006)). The Appeals Court added that the judge could also consider the quality and availability of day care for a young child. In addition, in Murphy, the Appeals Court determined there was “a workable visitation plan that will allow the husband meaningful access to and time with the child.” (id. at 193).[10]

2. The judge’s custody award: Father also contended that the judge abused his discretion in awarding Mother sole physical custody because his findings were inadequate to support that custody determination. The Appeals Court held that the trial judge found sufficient support for his determination that Mother had been the primary caretaker because of the significant care that she had given the daughter and the closeness of that relationship.

Comment: Once the trial judge decided that Mother was the primary caretaking parent, the case became a straightforward analysis using the “real advantage” standard, as in Yannas. There is also a brief discussion of the “best interest” standard. A point of consideration for GALs is the young age of the child, about two years old. The fact that her move was close enough for Father to have parenting time every other weekend (with a reasonable transportation plan, one assumes) would likely mitigate any harm that might befall the now attenuated relationship of Father and daughter, especially since he had what was essentially a shared-care arrangement for about six months, or about a quarter of the child’s life at that time. It could also be argued that a delay of a year or so might have benefitted the child in terms of solidifying her relationship with Father, before the relocation occurred. The last point of interest, though not so relevant to GALs, was that the trial judge appointed an attorney for the child (AFC). At two, the child could hardly be expected to have a preference, so the AFC was charged with advocating for what he or she determined was the child’s “best interests,” in effect substituting her judgment for that of the child. In that way, her role was similar to a GAL, as he or she would have had to make some assessment of the overall situation to formulate a recommendation on “best interests

DAWN MICHELLE MURRAY V. JONATHAN S. SUPER

Massachusetts Appeals Court

87 Mass App. Ct. 148 (2015) at: http://masscases.com/cases/app/87/87massappct146.html

Keywords: Divorce, Separation, Child Custody, Removal

GAL/PC Highlights: In this case, Mother sought to modify the divorce judgment so that she could move with the children to Danville, California. The judge found that there was a “real advantage” to her to move and that she had no intent to interfere with the children’s relationship with their father. Despite those two factors, the judge denied the removal request, as she found that the harmful effects on the children as a result of separation from their father outweighed the benefits they would have accrued from the move. That is, the move would not have been in the best interests of the children.  Mother appealed and the trial court decision was upheld.

Background: The parties divorced in October 2011 after a trial. The judgment ordered shared legal custody of the three minor children with Mother having primary parenting responsibilities and specified parenting time to Father. In July 2012, Mother filed a complaint for modification requesting permission to move with the children to California. The changed circumstances were her planned marriage that August to a man who lived there. Sometime thereafter, Father filed a cross-complaint, asking for a reduction in child support as a result of Mother’s marriage. At the time of trial, the children included a boy, Jonathan, age 17, and twin boys, Nathan and Christian, ages 12.

The trial judge made detailed findings of fact and determined that there was a “real advantage” to Mother to move to California and be with her new husband. However, she found that, due to the close relationship between the boys and Father, a move would be detrimental to their developmental needs and emotional health. She thereby denied the motion to remove them to California.

Legal Issues: Removal: As in other similar cases, there are two standards by which a judge must decide the outcome of the dispute. Which standard is used depends on the nature of the custodial arrangement. In this case, where Mother clearly was the primary caregiver – both by a Judgment and in fact – the standard is the two-pronged test as defined in Yannas (1985).[11] A court must first determine if there is a good and serious reason to move, which provides a “real advantage” to the person requesting it (and is not intended to deprive the other parent of reasonable contact with the children). If that test is satisfied, the court must then determine if the move is also in the best interest of the children.

1. Real advantage to Mother: The judge determined that Mother’s planned remarriage was legitimate,[12] that her emotional and social life would be enhanced through this marriage and cohabitation with her husband, and that she would be distressed at being separated from him. In effect, Mother’s rationale for the removal request was sound. The facts in the record supported this finding. Mother had family in California, both in Danville and nearby. She did not have any family in Massachusetts. Her new husband had a significantly disabled, 12-year old child from a former marriage; he had caretaking responsibilities for that child and could not move. The new husband was well-off financially and Mother’s economic security would clearly be improved by this marriage; she would not need to work outside the home. The judge also found that these benefits to Mother would generalize to the children (“a positive, trickle-down effect”, at 150). Lastly, the judge could find no motivation on Mother’s part to deprive the children of a relationship with Father.[13]
2. Best Interests: Yannas delineated a series of factors relevant to determine whether removal was warranted, once it was clear there was a “real advantage” to the moving parent. None of them individually is controlling and they must be considered collectively (Yannas @ 711-12). They include:

b1. Possible improvement in quality of the children’s lives:  The children were well-ensconced in the Bolton area by virtue of their friendships and their investment in the school system they attended all their lives. Jonathan was a junior, turning 18 in spring of the next year. They navigated a regular social and academic routine among school, activities, and church. Jonathan played in the high school jazz band and Nathan and Christian played both in the concert and jazz bands at their school. Christian sang in the choir and played the piano. Father did not contest the quality of the schools in Danville, CA (where the new husband lived), as there was no significant difference between those schools and the Bolton, MA schools. The judge found that a move would cause the boys “to lose the structure and support of regular weekly contact with Father,” (at 151), as well as with all the other groups and activities in which they participated. In addition, the judge found that Mother was overly optimistic about the effects of the move on the boys and lacked insight about the challenges the move would pose for their ability to maintain a strong relationship with Father. Furthermore, Mother had been selective about what information regarding the boys she shared with Father, such as the instance of her Husband hiring Jonathan to work remotely for him (which Father learned only during the trial). Mother also refused to let the boys play on a basketball team to which they were invited. She did not explain or inform Father of that. Christian played football, to which Father objected on the basis of its extensive after-school commitment and possible interference with schoolwork. The judge found mother to “lack self-awareness” (at 151) and to “focus on the superficial advantages (of the move) to the children.” (at 151). Of interest, the judge was critical of Mother for ignoring a sentiment the children expressed to the GAL, to the effect that they “want their parents to be happy but do not want them separated by 3000 miles.” (at 151).[14]

b2. The children’s relationship with their father: Findings included: Father has a strong bond with them, coaches their teams, is an active and involved parent, takes them to church regularly, and has never missed his parenting time. The boys golf with him and ski with him (the latter as well with Mother). Despite multiple requests by Father, Mother has not agreed to any extra parenting time for him. The judge found that “on the whole, the children spend about a third of the year with their father.” (at 152). She concluded that the cross-country travel would be very stressful for them and Father and would negatively impact the frequency of his parenting time.

b3. Children’s emotional, physical, and developmental needs: The judge found that the children are healthy and good students. They have a close relationship with both parents. “They have deep roots in the community and want for nothing in Massachusetts,” (at 152) and it was not in dispute that their lives would be roughly equivalent in CA to what they were here.

b4. Interests of the parents: The judge clearly understood that the move reflected a great benefit to Mother. However, the judge was critical of the degree to which Mother minimized the negative impact on the children of being so far away from Father. The record showed that Mother neglected to check on the academic, cultural, musical, or athletic opportunities available to the children in Danville, CA. The judge also found Mother to be an unreliable reporter on the interests of the children, and in contrast, found that “the quantity and quality of the father’s parenting time cannot be replicated if they are permitted to move.” (at 153). Thus, the judge provided solid support for the finding that this move certainly would not benefit Father in any way.

b5. Visitation (a.k.a., in contemporary terms, parenting time): Mother argued that the judge failed to consider alternative parenting plans that would mitigate the losses caused by the move. However, in her decision, the judge was critical of Mother for not making “realistic suggestions as to how the children and Father might achieve the ongoing and meaningful contact they currently enjoy.” (at 153).

b6. Balancing real advantage and best interests: While the vast majority of prior cases have allowed removal where there was a finding of a “real advantage,” such a finding, as in the instant case, “does not necessarily mean that a move is in the best interest of the children.” (at 153). In Murray, the best interests of the children and the interest of Father outweighed that of the “real advantage” to Mother. The opinion cites Rosenthal v. Maney, 51 Mass. App. Ct. at 266), “best interest of the children always remains the paramount concern.”[15]

The remainder of the opinion pertains to the Father’s motion to modify child support and is not relevant to GAL/PC work.

Comment: Reading between the lines of this opinion, it appeared that the judge found that Mother, who had passed the “real advantage” test, was not a person who was sympathetic to the importance of the children’s relationship with Father. Furthermore, she had not done her homework about what the social, cultural, academic, or athletic life would be for the children in Danville. CA, the town to which she wanted to move. In addition, the judge did not find Mother to be reliable in her presentation about the children’s best interest. The judge determined that the travel between coasts would be unduly burdensome to the relationship between the children and Father. There was also no evidence presented that Mother offered alternatives to the current parenting plan that would mitigate or compensate for the time the children would necessarily spend apart from Father, if she and the children moved to CA. Mother was rather cavalier about Father’s ability to see the children, proposing that he could move to CA, where his company had its main office. In fact, if he moved to work there, the record showed he would be many hours distant from Danville – in effect, another significant obstacle to maintaining the close relationship he had with them. Thus, the opinion was clear that the negative consequences to the children and to their paternal relationship was far more significant than any benefit they might secondarily gain from Mother’s increased happiness inherent in the move.

In other removal cases, this writer has indicated that a GAL should not offer an opinion/recommendation on a preferred outcome for removal cases, as the legal definition of the primary test, “real advantage” is vague. That said, it is incumbent on the GAL to investigate the social, economic, and emotional factors relevant to “real advantage,” but leave it to the trial judge to determine if that data meets the threshold of the standard. In addition, the second tier itself, “best interest” is historically vague and it has been argued in some detail that one should not opine on the ultimate legal issue (i.e. custody or a specific parenting plan), though most GALs do and most courts request it.[16] That combination presents a challenge for a GAL in deciding, first, what are the functional/behavioral equivalents of those two legal concepts and second, balancing one concept against the other. It is preferable and, likely more ethical, to provide a series of risk/benefit analyses, where the GAL outlines possible outcomes depending upon whether the court permits or prohibits a move. In addition, a subsequent case, (see below) Miller v. Miller (2018) may further confuse this legal calculus by raising the question (in the concurring opinion) that perhaps the primary test is “best interest,” with “real advantage” being one factor among others to be considered in the totality of factors underlying a decision. Certainly, in the instant case, “best interest” trumped “real advantage,” but it does make one wonder what the outcome would be if Mother had been more sensitive to Father’s relationship to the children, had provided realistic alternative and compensatory parenting times, and had been more diligent in researching the CA living situation and how it would benefit the children. All those issues are ones that a thorough GAL evaluation needs to consider.

MARCI ROSENWASSER V. RONALD ROSENWASSER

Massachusetts Appeals Court

89 Mass. App. Ct. 577 (2016) at: http://masscases.com/cases/app/89/89massappct577.html

Keywords: Divorce, Separation, Child Custody, Removal from the Commonwealth.

GAL/PC Highlights: As with other relocation cases, the focus is on the individual interests of all the parties, each parent and child alike. Each interest must be balanced one against the other, rather than stressing one party’s interest over that of the others. In this case, the Appeals Court remanded this case back to the Probate and Family Court, as the decision to deny primary custodial parent-father’s request to move with the child was too heavily based on the effect of the move on the mother’s relationship with the child than on either the father’s or the child’s interests.

Background: Early in 2010, after nearly 20 years of marriage, the parties separated. Later that same year, Mother gave birth to their daughter. Initially, Mother was designated as the primary caretaker, staying at home to care for the child, while Father was the breadwinner. He was an attorney who practiced primarily in Massachusetts, although he also worked one week/month out of the firm’s Florida office (i.e. Boca Raton). He grew up in Florida and his family still lived there. Mother’s parents’ winter in Florida for about five months/year. Almost immediately after the divorce in October 2011, Mother began to deteriorate psychologically and became unable to take care of the daughter. Father assumed the role of primary caregiver, using day care and paid babysitters to help in that role while he worked. When Father worked in Florida, he took the child with him, as Mother was unable to care for the girl for any extended periods. In 2012, Father petitioned the Court to move with the girl to Florida, as his family was there to help him with childcare. Any support system available in Massachusetts involved paid services. In addition, it would be of financial benefit to him to work out of only one office (Florida was the main office of the firm) instead of the two he now used. There was a G.A.L. appointed at the time.[17] Just before trial in August 2013, the parties agreed that Mother would have parenting time on Thursday afternoons and alternating weekend overnights. At trial, Mother did not testify. In addition, it was evident that, from the time of separation until August 2013 (start of trial) Mother had missed the majority of the parenting time that was available to her. However, during the five-month period in which the trial was pending, she was able to use all the parenting time she had. In July 2014, the trial judge denied Father’s request to relocate to Florida. She indicated that, while the move reflected a “real advantage” to Father, it was not in the child’s best interests. Father appealed.

Legal Issues: As with other removal cases where one parent has been the primary caretaker, the judge has to consider a two-pronged test. First, whether there is a “real advantage” to the parent wishing to move, and if that threshold test is met, whether it is in the “best interests” of the child to move (Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-712). As to the first test, the judge determined there was a “real advantage” to Father to move to FL, due to improvement in his financial situation and because of the extensive emotional and family support in child caregiving there. The judge found that Father’s income had decreased each year since he assumed primary responsibility for the daughter. In addition, no evidence was presented that suggested his move was intended to prevent Mother from having access to the daughter. The Appeals Court could find no error in the judge’s opinion that there was a “real advantage’ to moving to FL.

As to the “best interest of the child” prong, the judge analyzed how the evidence reflected the different interests of both parents and the child (Murray v. Super, 87 Mass. App. Ct. 146), as below:

1. The child’s quality of life: The judge found that the child had few friendships or extended family relationships in MA, In contrast, she noted that there were many extended family connections in FL, including maternal and paternal grandparents and other family members of Father’s family, all of which would benefit the child. The Court noted that the trial judge did not address what benefit would accrue to the child from the Father’s improved living, emotional (i.e. “happiness), and financial situation in FL. The Court noted that omission as important, since Father was the sole earner in the family. In other words, those improvements in his life would positively affect the quality of his parenting, which would then be in the daughter’s best interest (See Pizzino v. Miller, 67 Mass. App. Ct. 865, 870 (2006)).
2. The child’s relationship with the mother: In only one Finding of Fact does the judge consider this issue, noting an existing close bond between the two, but without specifying the details or nature of that bond. The judge noted that the “routine” of the mother with the daughter would be disturbed by the move, again without specifics. The judge determined that this relationship would “suffer the most” (at 584), despite the significantly inconsistent pattern of parenting time that mother used, up until the time of trial. The Court emphasized (of importance to GALs) that any conclusion “must be grounded in specific subsidiary fact-finding to support it (citing Katzman v. Healy, 77 Mass. App. Ct. 589, 587 (2019)), which was absent in the Judgment.
3. The child’s emotional, physical, and developmental needs: Other than a couple of minor medical issues, the judge did not find anything unusual in the child’s development. The girl appeared to be doing well. She was to enter kindergarten in September 2016, and the judge determined that MA offered better educational opportunities than did FL, although there were no subsidiary findings or comparison with the local FL (i.e., Boca Raton) school system. Of significance is the statement that, even if the MA school was found to be superior, it would “not compel the conclusion” that the destination school system would be inadequate to meet the child’s needs (citing Abbott v. Virusso, 68 Mass. App. Ct. 326, 333 note 12, (2007)).
4. Interests of both parents: The judge noted Mother’s decade-long history of mental health treatment and the recent decompensation following the separation. She stated that Mother’s psychiatric challenges had interfered with her parenting abilities, and that she has suffered a loss of confidence in her parenting, but that her mental health has improved since 2013, which has helped her be more at ease with the daughter. The judge appeared to fault Father for his “aggressive pursuit of fairness” (unexplained), which “triggers (the mother’s) anxiety and undermines her confidence.” (at 585). The judge noted the consistent parenting time since the onset of trial and Mother’s hope to increase her parenting time moving forward. There was little mention of Father’s relationship with the child or any challenges he would face by staying in MA. There was evidence that he was under great stress as wage earner – primary caretaker, that he had begun treatment for depression, and that his work had suffered since his assumption of custody, but the judge gave that little weight. The Court felt the trial judge failed to give sufficient weight to those challenges and the impact on the daughter (Pizzino at 875).
5. Reasonable parenting plan: The judge rejected both parenting plans Father submitted. Without specifics, the judge opined that neither plan was a “reasonable accommodation” (at 586), given Mother’s mental health issues. One plan permitted her extended parenting time in MA (i.e., longer blocks of time) and the other represented the current plan, only occurring in FL. The judge felt that, because of her challenges, Mother would be unable to handle either plan, thus compromising her relationship with her daughter. Apparently, the evidence showed that any plan that included more than three consecutive overnights would be onerous for the Mother and regular plane trips to FL would be too anxiety-producing for her, although there were no details supporting that finding, or about her schedule, or that her parents had a vacation home in Boca Raton. The judge also failed to consider alterations in child support payments that might better enable Mother to have parenting time in FL.

In balancing the two standards, “Real Advantage” and “Best Interests of the Child,” the Court found that the trial judge, in denying removal, gave too much weight to the Mother’s inconvenience in spending time with the child compared to the benefits to Father (and to the child) of moving to FL. The Court reiterated statements from Yannas emphasizing that a child’s best interests “are so interwoven with the well-being of the custodial parent.” (Yannas at 710).[18] The judge also emphasized Mother’s work at re-establishing a relationship with her daughter (disproportionately so, according to the Court (at 589)), while thereby diminishing the importance of the consistent parenting that Father had done under challenging circumstances in the context of all the missed time in parenting by Mother. In effect, the Court reversed the trial judge, noting that in this case the interests of the custodial father and that of the child overrode the disruption in parenting time by Mother. While noting that removal should have been allowed,[19] they sent the case back to the trial judge, recommending that the judge review and make detailed findings about the issues above (i.e., Father’s interest, his unhappiness in MA, the financial and emotional impact of the move on the child’s quality of life, and about the child’s needs and relationship with both parents). The second part of the opinion dealt with alimony.

Comment: As with most removal cases, this opinion lays out a template for the Category E or F G.A.L. to search for and then analyze the resulting data. The analysis did not specifically discuss the particular interests of Father, which GALs need to consider for the sake of completeness. Some of this data are physical (location, conditions of residence), some are financial/employment-related, and some are social/emotional (impact of new marriage, family support, etc.). A competent investigation provides all that information to the court, but, in the opinion of this writer, cannot really know what weight to give to either the “real advantage” of the moving, custodial parent or the “best interest of the child.” The child would either lose a consistent relationship with the remaining parent or, if removal is denied, be in the primary care of a parent whose wishes and needs were frustrated by the court. In these cases, it is the writer’s opinion that best practices require the evaluator to lay out the options and the resulting benefits and disadvantages of exercising all of them, a form of risk/benefit analysis. Best practices do not require the evaluator or investigator to provide a recommendation, even though that might be something the court desires and for which it has asked. (See previous discussion in Casebook summary of Murray v. Super (2015)).

BENJAMIN H. MILLER V. JOANNA ISABELLA MILLER

Massachusetts Appeals Court

478 Mass 642 (2018) at: http://masscases.com/cases/sjc/478/478mass642.html

Keywords: Divorce, Separation, Custody, Removal, “Real Advantage,” Best Interest.

GAL/PC Highlights: In this case, the Mother filed a request to move with the child to Germany simultaneous with her Complaint for Divorce. As there was no prior order regarding legal or physical custody, the trial judge used the Yannas (1985) two-pronged standard of “real advantage/best interest,” as the parties had stipulated that Mother had always been the primary caregiver. In addition, the judge performed a “functional analysis” (i.e., what were the “facts” of parenting responsibilities), which findings were consistent with that stipulation. Since the judge had carefully considered all the parties’ interests, including the benefit to the Mother (“to her financial and emotional health”) (at 642) and secondarily the improvement of the child’s quality of life, and had fashioned a parenting plan that mitigated to some degree the harm evident from separating Father and child, the SJC affirmed the decision. Of potential significance was a long, concurring opinion of two of the six judges, in which they urged the Court to dispense with the two-pronged test of Yannas and just use one standard for all removal cases, that being “best interest of the child,” with “real advantage” to the moving parent being just one of several factors to be considered under “best interest.” Of some interest was the Court’s statement that, “real advantage” notwithstanding, “the best interest of the child is always the paramount consideration in any question involving removal.” (at 643).[20]

Background: Mother was a German citizen and Father, an American. Mother had never previously resided in this country. They married in Tanzania in 2007 and their daughter was born in Uganda in 2008. They moved to the U.S. in 2011 so that Father could attend graduate school. His family lived in MA also, although he had not lived in the U.S. for the past 18 years. The parties’ plan was to leave the state when Father completed his degree. The parties separated in April 2012, before Father could start graduate school. There was a period during the separation when Mother moved with the daughter to Germany: she then moved back here in an attempt to reconcile, but permanently separated from Father in September 2012. Father filed for divorce and for custody in May 2013; mother counter-filed, “seeking sole custody of the child and requesting permission to permanently move her to Germany.” (at 644).[21]

In the Findings of Fact, it was clear that Mother had been the primary caregiver since the girl’s birth and carried out all the typical parenting responsibilities one might expect in that role. The judge also credited Father with selective participation and with a “loving relationship” with the girl. (at 644). At the separation, the parents formally stipulated to “shared custody,” which permitted Father to have the girl overnight twice during the week and on alternating Saturdays overnight. Father traveled for work, and he did not regularly communicate with his daughter on those occasions and had not asked to make up parenting time for the periods he has missed. There was conflict between the parents and, the judge noted, Father “does not usually allow the wife to speak with the child when the child is in his care.” @ 645.

The discussion then notes that both parents struggled financially with insufficient income to manage two residences and child support. Mother had been unable to find work relevant to her qualifications, despite good faith efforts to seek employment, and she was working at the time of trial as a low-paid kitchen assistant. She was on SNAP benefits and needed financial help from her mother and her mother-in-law. She had worked at a “well-paying job” before in Germany and had a job offer in hand there that would make her self-supporting, including health benefits and “the ability to work from home most of the time.” (at 645). Furthermore, she could live near extended family in Germany, in particular near the maternal grandmother with whom the girl had a close relationship. Other factors were: the child spoke fluent German, had spent significant time in Germany and went to school there “for two extended periods.” (at  646). She had a German passport and had maintained regular contact with family and friends there.

After a three-day trial, the judge decided to allow Mother to have physical and legal custody and to move with the child to Germany, noting that was “in the child’s best interests. Father was to have time with the daughter on several of the vacation periods, including a summer period of six weeks, and any time he could visit the girl in Germany “with reasonable notice by agreement.” (at  646). Father appealed, claiming the judge used the wrong standard (“real advantage”), because he and Mother shared custody of the daughter. He argued that the Mason “best interest of the child” standard (Mason v. Coleman, 447 Mass 177 (2006) should have been applied instead, and that the judge further erred in finding that the relocation was in the girl’s best interests.[22]

Legal Issues:

1. The Court noted that the daughter had not resided in this state for five years and was not a native of the Commonwealth, both of which are elements of the statute, M.G.L. c. 208 §30 (Note 7 provides a brief history of the removal statute). Despite not meeting that threshold (Smith v. McDonald, 458 Mass 540 (2010) applied them to children of unmarried parents and Altomare v. Altomare, 77 Mass. App. Ct. 601 (2010) to in-state relocation) the basic principles of the relevant cases applied in this instance, as the daughter had meaningful ties here and relocation would “disrupt significantly existing parenting arrangements.” (from Smith, (2010) at 546, note 13).
2. Removal analysis: Citing Smith at 544, the Court noted, “The touchstone inquiry”[23] is always whether removal is in a child’s best interests.” That said, they noted that the Court provided “certain guideposts” (at 648) to aid in decision-making, those being the “real advantage” standard from Yannas and “best interests” from Mason. What differentiates these standards is the weight given to each in the individual case.[24]
3. Evaluating custody: The Court defined sole v. shared physical custody. The criteria are, perhaps, necessarily vague. The former means a child lives with only one parent, “subject to reasonable visitation by the other parent” (from Mason at 182), while in the latter a child would “have periods of residing with and being under the supervision of each parent,” allowing “frequent and continued contact” with both. (Mason as above). While any agreement or custody order can be informative, courts should perform a “factual inquiry” (at  651) of the “functional responsibilities and involvement of each parent.” (from Altomare at 605). The opinion then discusses the two standard-setting cases, Yannas and Mason from a custodial perspective.[25]

1. The standard applied by the judge: While the trial judge noted she preferred a “best interest” analysis, because there was no formal custody order, the Court demurred, stating that the absence of such an order does not inhibit a determination of which standard is more appropriate. In her findings, it was clear the trial judge did an extensive assessment of the functional/practical responsibilities of each parent and found Mother to have been the primary caregiver with respect to emotional and physical care. In addition, the judge reasoned that, since there was indeed a “real advantage” to Mother to move and it was also in the child’s best interests to accompany her, the result would have been the same as under the Yannas formula. The SJC agreed with this formulation.
2. The merits: Father argued that the judge abused her discretion by using the wrong standard to formulate her conclusions. Father based his argument on the fact of the stipulation between him and Mother for shared time with the daughter, which arrangement had been operative for about three years at the time of trial. The judge, however, found that the parenting circumstances “in practice” (at 655) clearly demonstrated that Mother continued to perform the majority of the parenting tasks and responsibilities. That is, the functional analysis showed her to be the primary caregiver, as had been her role all along. In addition, communication problems abounded, including Father’s interference with the daughter’s ability to talk to Mother when in Father’s care. Furthermore, Father did not contest the fact that Mother’s economic prospects were far more favorable in Germany and that she has a base of emotional and physical support there – that is, there was significant benefit to Mother to be in Germany. In addition, the judge found no evidence to show any intent to interfere with Father’s relationship with their daughter.
3. The parties’ respective interests: As framed in other removal cases, the judge must consider each party’s interest in coming to a decision.
   1. The child’s interests: the judge must consider, one, whether the move will improve the quality of her life as a result of Mother’s improved circumstances; two, the effect of the move on the relationship with Father, and, three, the effect on the “child’s emotional, physical or developmental needs.” (655, citing Dickenson, 66 Mass. App. Ct. 449-50). In a detailed discussion, the Court affirmed the judge’s findings that supported the move being very much in the child’s developmental interests, listing all the benefits noted above on page 18. Mother’s greatly improved financial situation, her ability to work more from home, and to have family support would benefit her and generalize to the welfare of the daughter.
   2. Interests of the custodial parent/Mother: This section is simply repetitive, explaining the many advantages to Mother in Germany compared to her limited prospects in Massachusetts.
   3. Interests of the non-custodial parent/Father: The Court acknowledged the “detrimental effect” (at 657) this separation would have on his relationship with the daughter. However, the judge believed that creating an alternative parenting plan, with extended contact at vacation and during the summer would mitigate to some degree the detriment. In addition, because of the costs of travel by either Father or the girl, Father was not required to pay child support to defray the expenses involved in that travel.[26]
   4. Balancing the interests: This being “a classic example of a discretionary decision,” (at 658), the judge has to weight these competing interests. The Court found no fault with the judge’s reasoning, given the analysis of those interests above. Where, in other cases, the facts supported clear benefit to a moving parent, where it would also improve a child’s life, and where alternate parenting time and financial changes would mitigate the harm from loss of regular contact with parent staying behind, the Court has affirmed such removal decisions.

Concurring opinion: Two judges wrote an opinion that agrees with the majority in their opinion, but they wanted to reconsider the logical analysis by which removal cases are decided. They objected to what they called the “binary decision-making framework” (at 659) used, meaning the fact-based choice of using a Yannas, “real advantage” standard (where one parent has been the primary caregiver) versus the Mason “best interest of the child” standard (where both parents have shared a substantial proportion of the caregiving). Interestingly, the concurring writers designate that “best interests” is “the ultimate touchstone (emphasis mine) in all removal cases, whether one parent has sole physical custody or both parents share physical custody.[27] This language reflects what the majority wrote (above page 2, opinion @544), even though the case was decided by a “real advantage” analysis. The concurring writers would do away with this binary decision-tree and leave only one standard, that being “best interest of the child.” The “real advantage” to the parent seeking removal would then be considered just one factor among the many in the final analysis.

The concurring justices believed the binary paradigm to be flawed, as the sole v. shared physical custody positions do not reflect “the many variations on the theme of sole and joint custody that often play out in our increasingly complicated lives.” (at 659). They note that the degree of physical caregiving may vary over time, depending upon circumstances. Judges may struggle to try to fit the individual case into this binary system to rationalize their decision. Even with a functional analysis of parenting, in the end a judge will have to choose between one of those scenarios to resolve a case.

Further, and perhaps most significant, is the pattern whereby the law posits that “best interest” is the primary criterion (“touchstone” issue), but that may only exist where there is actual equally shared caretaking responsibility (a‵ la Mason), while in actual practice the “real advantage” standard becomes the more important factor where one parent has primary responsibility. The writer notes that, even in Yannas, the language indicated that “the central question” in removal cases was “best interest” (at 660), but real advantage was relevant as it was believed to be “the most accurate reflection of best interest under those circumstances.” (at 660). The question revolved around whether a child’s best interest was “interwoven” with the interests of one parent or another, as it was in Yannas but not in Mason. The Mason opinion reasoned that “real advantage” is just one of many factors to be considered under the child’s “best interests.” Even under Yannas, “real advantage” may not be the most important factor (see Murray v. Super, 87 Mass. App. Ct. 146 (2015), where there was a “real advantage,” but disruption of significant relationship with Father was considered too harmful to allow removal, i.e., not in child’s best interest.) The concurring justices argue for one standard, “best interest,” where the “calculus is a dynamic one that is adapted to (the facts of) each case.” (at 661).

Comment: This case may be a harbinger of a change in the decision analysis in future removal cases. Here, the order of appointment stated that the GAL should report as to any advantage to the wife in this proposed move, but added, “…the standard to be used as there is no custody order should be best interest.” (note 14, italics added). For a GAL, regardless of the standard used, one would try to gather facts related to what benefits would accrue to the person seeking the move (among other areas of inquiry, such as the child’s developmental needs, relationship with both parents, and the remaining parent’s concerns) and what harms might result from different outcomes. That said, if the judge wanted a recommendation on removal, as is sometimes the case, how that order is framed can determine whether a GAL – who is willing to offer a recommendation – would adhere to a best interest standard (with real advantage as one factor) or the real advantage standard, with best interest as an important factor. In commenting on other cases, it has been this writer’s position not to make a recommendation on removal, but to use a contingency-type of decision tree – an if this, then that formulation. In that instance, a GAL can also use a risk/benefit assessment, applying the pros and cons of different outcomes as a way of providing the best information to the court, which, after all, is the role of the GAL. As in other cases – and as these many decisions have reiterated – best GAL practices involve finding facts about the interests of each person in the family (the Court-promoted template), the motivation for the move, and the effects that moving with the child or not would have on all the affected members of the family.

DOMESTIC VIOLENCE

CUSTODY OF VAUGHN

Supreme Judicial Court of Massachusetts

422 Mass. 590 (1996) at: http://masscases.com/cases/sjc/422/422mass590.html

Keywords: Parent and Child, Child Custody, Abuse Prevention, Battered Woman Syndrome.

Background: Mother had two children from a prior relationship, a 9-year old girl and 5-year old boy, when she met Father in 1977. He was abusive toward her, frightening for the children, and was verbally and physically abusive of them. Father had once beaten Mother into unconsciousness, requiring an ambulance to take her to the hospital. He also inflicted other injuries. Mother and Father never married. She had Vaughn in July 1982. The   domestic abuse continued, with the police being called about twelve times. Mother would flee the house during these violent episodes, while Father would take Vaughn and threaten to keep him as leverage for Mother to return to him. Vaughn witnessed multiple incidents of verbal and physical abuse of his mother and siblings. The daughter also alleged that Vaughn’s father had been sexually inappropriate toward her when she was a teenager.

Mother was also verbally and physically abusive to Father, including being sexually provocative toward him, all of which Vaughn witnessed or heard. It was noted by the court that there was a large disparity in the parents’ respective size and weight, with Father significantly taller and stronger than Mother. Both parents drank heavily and used marijuana. In 1978, Mother stopped her heavy drinking after joining Al-Anon and was able to drink moderately or socially, while Father had stopped drinking in 1985.

Mother became successful in real estate, earning significantly more than Father. She had   been the primary caregiver for Vaughn’s first five years, but Father took more and more domestic responsibility in the five years before trial, becoming involved with his school and extra-curricular activates. The court had determined that Father had become the primary caregiver over the last five years before trial. In 1992, Mother obtained a 209A and Father sought custody of Vaughn, who was about eleven at the time. The court made a temporary order for them to share legal and physical custody as well as time during the week with their son. A GAL was appointed to evaluate and he recommended in February 1993 that joint legal custody continue, but that Vaughn have his primary residence with his Father. The   court made a new temporary order in line with the GAL recommendations and, after the trial in July 1993, the judge affirmed that order in his judgment. The court also ordered mother to pay child support. She appealed.

In the initial appeal, R.H. v. B.F., 39 Mass. App. Ct. 29 (1995), the Appeals Court found that the trial judge had failed to make findings regarding the issues of physical abuse. The SJC affirmed that. Moreover, the SJC held that the trial court also had failed to consider the “special risks to the child in awarding custody to a Father who had committed acts of violence against the mother,” and had neglected to give sufficient weight to the effects of domestic violence on women and their children. Its strong position on this issue is reflected by the statement (Vaughn, at 595-96):

Quite simply, abuse by a family member inflicted on those who are weaker and less able to defend themselves – almost invariably a child or a woman – is a violation of the most basic human right, the most basic condition of civilized society: the right to live in physical security, free from the fear that brute force will determine the conditions of one’s daily life. What our study and the growing movement against family violence and violence against women add to this fundamental insight is that, for those who are its victims, force within the family and in intimate relationships is not less but more of a threat to this basic condition of civilized security, for it destroys the security that all should enjoy in the very place and context which is supposed to be the refuge against the harshness encountered in a world of strangers. Particularly for children the sense that the place which is supposed to be the place of security is the place of greatest danger is the ultimate denial that this is a world of justice and restraint, where people have rights and are entitled to respect. The recent literature also exposes the sham and hypocrisy that condemns violence among strangers and turns a blind eye to it where its manifestations are most corrosive.

The SJC spent some time addressing the weight given to the expert witnesses in this case, a court-appointed GAL, who was a local psychologist, and Peter Jaffe, Ph.D., Mother’s expert. It noted the impeccable credentials Dr. Jaffe had in the field of domestic abuse and commented that he attributed much or all of Mother’s abusive or provocative behavior to her response to or self-defense against Father’s abuse. The trial judge did not give great weight   to Dr., Jaffe’s testimony and did not state whether he found the testimony credible. The judge did express concerns about awarding custody to a father who had been violent toward a mother. The trial court did give more weight to the GAL’s recommendations. It said (Vaughn, at 598), “Dr. A, on the other hand, was an impartial witness whom the parties had consulted previously and who had been selected by their mutual agreement to serve as guardian ad litem. Like Dr. Jaffe, he has a doctorate in clinical psychology, though a much more recent one. His practice includes work with children, adolescents, and families.”³⁴ The GAL had been a therapist for Vaughn in earlier years and had known a great deal about this family. He gave much consideration to the following factors: the relationship between Vaughn and his Father, Vaughn’s good progress in school, Father’s sobriety and AA attendance, and Vaughn’s wish to spend more time with his Father.

In remanding the case to the Probate Court for explicit findings regarding the impact of domestic abuse and the appropriateness of the custody award, it said (Vaughn, at 599-600):

34  “The mother complains that it was wrong to give such weight to the guardian’s judgments because he was not   a specialist in family violence or battered women’s syndrome. At trial the mother’s counsel sought to emphasize this point by eliciting testimony regarding the unique characteristics of a family in which battering has taken place. Although Dr. Jaffe certainly contributed valuable insights to the proceedings, we would hesitate a long time before suggesting that in cases such as these, not only must both sides produce expert witnesses, but they must be experts in family violence. A qualified clinical psychologist with experience in family matters will, as Dr. A. indicated on cross-examination, have encountered this issue in his training and, unfortunately, all too frequently in his clinical practice. Dr. A also stated that he believed that ‘family violence should be a factor in family litigation’.” (Vaughn, at 598).

Domestic violence is an issue too fundamental and frequently recurring to be dealt with only by implication. The very frequency of domestic violence in disputes about child custody may have the effect of inuring courts to it and thus minimizing its significance. Requiring the courts to make explicit findings about the effect of the violence on the child and the appropriateness of the custody award in light of that effect will serve to keep these matters well in the foreground of the judges’ thinking.

The Legislature reached a similar conclusion in respect to shared legal or physical custody. General Laws c. 208, § 31A, provides that “if, despite the prior or current issuance of a restraining order against one parent pursuant to chapter two hundred and nine A, the court orders shared legal or physical custody . . . the court shall provide written findings to support such shared custody order.” A G. L. c. 209A order was outstanding in this case, and the judge made no explicit findings regarding the effect of shared custody on the child. We agree with the Appeals Court that such written findings should also be made attending specifically to the effects of domestic violence on the child and the appropriateness of the joint custody award in light of those effects. R.H. v. B.F. id at 41. (Vaughn, at 600).

Comment: The importance of this case can be compared to the period in the 1980’s when the issue of sexual abuse in domestic relations cases arose. Vaughn is the decisive case relating to the weight given to issues of domestic violence in custody disputes. Previously, many GALs did not ask as a general rule about these issues. When sensitized to them, they began asking and learned that abuse existed more than was expected. Vaughn raised GALs’ consciousness to the incidence of domestic abuse and made it imperative to inquire about its potential existence in all cases. Subsequent research has revealed that this issue is highly complex and requires thoughtful and detailed investigation when it seems that some form of partner abuse has existed. Vaughn and the subsequent statutes require, where some form of severe domestic violence or significant relationship control has existed, that the GAL must address these issues, consider the impact on the children, and give it significant weight in making recommendations. In particular, the GAL would have to demonstrate compelling reasons to recommend custody (if recommendations are made) to a perpetrator of severe abuse or control. If the GAL does not make a custody recommendation, then he or she could assist the court by describing in the report some of the implications of different custodial possibilities the court is likely to consider, as well as possible remedies for some of the problems of the family, such as therapy, anger management, and the like.

One other side issue relevant to this case is the greater weight the court granted to its own expert, the GAL, than to an expert for one side, even when that expert had remarkable credentials. It explained its opinion, as it did in other cases (Adoption of Hugo, 428 Mass. 219 (1998)[28] that it is not mandatory for a GAL to have a specialty in the area at issue, but he/she should have had some experience with it as part of a general clinical or professional background. That said, that expert’s testimony about the effects of domestic abuse – aside from any particular impact on Mother – seemed to affect the eventual decision of the SJC.

A third concern of this writer is an ethical one. While it might not have been an issue when the appeals courts heard these cases, the question of the multiple roles of the GAL in this case is a current one. Dr. A had worked with Vaughn and the family earlier in Vaughn’s life and then became the GAL. Current GAL standards (Category F and proposed Category E) would prohibit a professional from moving from a therapeutic role into an investigative/evaluative one.

ANDREA MAALOUF v. ELIE SALIBA.

Massachusetts Appeals Court

54 Mass. App. Ct. 547 (2002) at: http://masscases.com/cases/app/54/54massappct547.html

Keywords: Domestic Violence, Abuse, Prevention, Minor, Visitation rights. Divorce, Separation, Visitation.

Background: In this case, the parents married in June 1994, and their triplets were born in July 1996. Mother and Father separated on November 10, 1996, after an incident of abuse. The judge found that, after the marriage, Father swore at Mother and verbally abused her every day. Father engaged in occasional physical violence, once grabbing Mother by the throat in the car and threatening to eject her from it. On another occasion, while driving, he covered her mouth to stop her talking, and when she resisted, grabbed her by the throat and called her various obscenities. On two other occasions between the marriage and the separation, Father grabbed her or kicked her, or threatened to hit her or push her down the stairs. The judge found that Mother “had a strong and genuine fear of the Father.” (Maalouf, at 548).

The judge found it in the interest of the children to maintain a bond with Father and his family, who “provide a safe, appropriate, and loving environment during visitations.” (Maalouf, at 548). Father took good care of the children and they were responsive and affectionate with him. The judge found Father needed assistance with the children, to be obtained either from family members or an approved family service officer (the type of assistance was unclear).

After an eight-day trial, the judge granted a divorce on the basis of cruel and abusive behavior by the Father, ordered sole legal and physical custody of the children to Mother and unsupervised visitation to Father contingent on certain conditions. These included surrender of his passport, notice to the embassy of his native country, and the posting of a bond.

Mother appealed that aspect of the judgment. She claimed that, until he had at least completed a batterer’s treatment program, Father would be unsafe with the children because of his demonstrated abuse. She further claimed the judge did not make sufficient findings in the   light of the abuse (in light of Custody of Vaughn, 422 Mass. 590 (1996)) to support his order of unsupervised visitation. The Court agreed and remanded for further findings.

The Court noted that G. L. c. 208, § 31A, requires the Probate and Family Court judge to “consider evidence of past or present abuse toward a parent or child as a factor contrary to the best interest of the child” when issuing any temporary or permanent custody order (footnote 2 stated that identical language can be found as well in G. L. c. 209, § 38, and G. L. c. 209C, § 10). The statute, passed in July 1998, and made effective October, 1998, codified the SJC decision in Custody of Vaughn, 422 Mass. 590, 599-600, instituting a rebuttable presumption against any form of custody to a parent who was found, by a preponderance of the evidence, to have engaged in a pattern of or serious incident of abuse. Having made such an order or judgment, the judge must make written findings of fact within 90 days as to the impact of that abuse on the child(ren) that support his judgment that his order is in the children’s best interest. The statute required that the judge consider the safety of the children when ordering visitation by the abusive parent and provided nine options for the judge. This statute had not become effective until after the trial, but the judge’s findings and order were still pending and should have taken the statute into account. In footnote 3, the Court delineated the statute, and then defined a “serious incident of abuse,” all of which is included below for the sake of educational completeness (the entire statute is in the final chapter). The statute defines abuse as “the occurrence of one or more of the following acts between a parent and the other parent or between a parent and child:

1. attempting to cause or causing bodily injury; or
2. (b) placing another in reasonable fear of imminent bodily injury.” A “serious incident of abuse” is defined as
   1. “(a) attempting to cause or causing serious bodily injury;
   2. (b) placing another in reasonable fear of imminent serious bodily injury; or
   3. (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” Under the statutory scheme, the definition of “bodily injury” has the same meaning as provided in G. c. 265, § 13K, which defines bodily injury as “substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin.”

In footnote 4, the Court delineated the nine statutory options available to a judge. They include:

“(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third party;

• ordering visitation supervised by an appropriate third party, visitation center or agency;
• ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer’s treatment program as a condition of visitation;
• ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation;
• ordering the abusive parent to pay the costs of supervised visitation;
• prohibiting overnight visitation;
• requiring a bond from the abusive parent for the return and safety of the child;
• ordering an investigation or appointment of a guardian ad litem or attorney for the child; and
• imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused ”

The Court said that, while the judge made detailed findings about the abuse, he did not specify whether he considered the violence to have met the definition of a serious incident of abuse or a pattern of abuse, and he did not make a finding regarding the impact of such abuse on the children. The judge appeared to consider safety issues in ordering conditions (e.g., bond, surrender of passport) around custody and prevention of Father removing the children from the country. However, it was unclear whether he considered safety issues in ordering unsupervised visitation, as the statute requires. The Court vacated the part of the order related to unsupervised visitation and sent it back to the trial court for further findings.

Comment: The Court, in reporting the judge’s findings about the abuse, made no determination as to whether those findings met the criteria of a serious incident of abuse or pattern of abuse. It would seem reasonable to believe that the documented abuse was consistent with placing Mother in fear of imminent harm and the fact of four frightening incidents in merely two years would appear to constitute a “pattern of abuse,” particularly in the context of daily verbal/emotional abuse. This case, coming on the heels of Vaughn and

G.L. c. 208 § 31A, reminds investigators to ask questions about conflict management and potential/actual abuse during the time the parties lived together as spouses or as significant others, the nature of the abuse, if any, and the impact of each party and the children. It is useful for the GAL to have a structured or semi-structured interview format with which to explore how the parties handled the ever-present dynamics of power and control with respect to relationship issues such as money, sex, family, friends, and parenting, among others. These details will provide the basis for any recommendations, if permissible under the order of appointment, regarding custody and visitation, since they will assist the court in knowing whether domestic abuse could be a factor. The nine options listed in the statute (and the case) frame the possible alternatives available when making recommendations that would protect children (and a victim spouse), should the court find that domestic abuse had occurred.

M.G.L. c. 208 § 31A, Maalouf, and the primary case, Vaughn, really frame the kind of fact- finding and analysis a GAL should do when allegations of abuse occur in domestic relations or state intervention cases.

Twenty years after Vaughn and Maalouf, the science and clinical understanding of intimate partner abuse or violence has shown that a serious pattern of abuse does not have to include fear of imminent bodily harm. The tactics of power and control can involve various forms of psychological, mental, or emotional abuse, whose impact on a co-parent can be just as damaging as physical assault. In fact, data on persons affected by both physical and psychological abuse  indicate that victims report that the effects of the latter are far more deleterious and enduring than that of the former form of abuse.  It is far easier to demonstrate the existence of abuse and its impact when there are documents, such as police reports, medical records, and the like to confirm the report of the victim. It is far harder for a GAL to portray in a way that can be meaningful to a court how one parent uses non-physical methods of abuse in order to control and coerce the other parent and to undermine the victim’s sense of self, self-confidence, and parenting abilities- and for the GAL to then capture the impact of such abuse on the children in that family. Knowing what we know now about the various forms of domestic abuse, that is the challenge GAL’s face in bringing this issue to the attention of the court.

CARE AND PROTECTION OF LILITH

Massachusetts Appeals Court

61 Mass. App. Ct. 132 (2004) at http://masscases.com/cases/app/61/61massappct132.html

Keywords: Domestic violence, Parenting, Parental fitness.

Background: This child protection case in juvenile court involved the state’s intent to terminate Mother’s parental rights. Lilith’s parents had never married and Lilith, born in 1994, lived primarily with Mother. A 51A abuse and neglect complaint was filed against Mother in 2000 and she had been evicted from her home. The paternal aunt was given temporary custody, but Lilith returned to Mother within a few months under the condition that Mother remain drug free, submit urine screens to DSS, and complete a psychopharmacological evaluation and a neurological exam. Within a few months another 51A was filed and supported for neglect, but Mother fled the state with Lilith to New Hampshire. The court then again transferred custody to DSS. Father located Lilith and returned her to Massachusetts and DSS, who placed her in a foster home. Father then established his paternity and the court placed Lilith with him and his fiancée (and her teenage daughter) in Nashua, NH in June 2002. There was a hearing in September 2002, a judgment in December 2002, and written findings in July 2003. Mother appealed the judgment.

The Appeals Court noted, citing Adoption of Mary, 414 Mass. 705, 711 (1993).

‘Parental unfitness must be determined by taking into consideration a parent’s character, temperament, conduct, mental stability, home environment, and capacity to provide for the child in the same context with the child’s particular needs, affections and age.’ The Court noted that the judge’s detailed and manifold findings listed a litany of behaviors consistent with serious psychological difficulties, particularly delusions of insects. She kept the child from school because she believed (falsely) that the child was infested with bugs, causing serious absenteeism. The findings included a determination that Mother was a substance abuser and did not comply with the court or DSS’ service plans for drug screens. Mother and child had also moved frequently in a short period of time. (Lilith, at 134.

The Court determined the Father was a fit parent, provided a stable and supportive environment, used DSS services effectively, and complied with all service plans. Lilith also attended school regularly in her Father’s care. Father was supportive of Mother’s visitation. Father had a history of substance abuse, sought treatment, and abstained for four years. He relapsed when diagnosed with cancer, but he had been “sober” since then.

The Court addressed the domestic violence issues. It stated the juvenile court findings amounted to a summary of conflicting testimony, essentially a ‘he said-she said.’ These contradictory reports included Father injuring Mother with his car after she tore off his license plate in 1996. Father denied awareness that Mother was behind him, although he pleaded guilty to A&B and served 30 days in jail. Mother also testified that, during that incident, “Father fractured her skull by smashing her head against a windshield, prior to backing into her, and that Lilith witnessed this assault. Mother claimed that Father threatened to kill her and Lilith.”

The judge did not resolve these conflicting claims or make findings about the credibility of the witnesses. In regard to other incidents of domestic violence, Mother and Father acknowledged that their relationship was acrimonious. There were other allegations of domestic assaults that were not substantiated by documentation, although that might have been due to the failure of DSS to follow up on certain claims. Father testified that the abuse was mutual and stopped when Lilith was born, while Mother asserted it continued after the birth. Mother’s primary care physician did have reports in the records of bruises and claims by Mother of being beaten by her boyfriend. Mother was living with Father at the time, but the record did not specifically designate Father as the perpetrator.

Father admitted to a criminal record, including domestic A&B in September 1995, which charge was dismissed. There was no further record of domestic abuse after 1996. In addition, Father’s ex-wife told an investigator that he had not been abusive to her or to their children. Father responded to questions about his criminal history on direct and cross-examination. He was also charged with rape when he was eighteen in 1979,  a crime for  which  he received three years of probation. The record of the trial revealed that Father was a volatile person. At one point he threatened opposing counsel, but the judge made no written findings about this, despite the fact that the record showed that the judge repeatedly had to remind him to settle down.

The Court then discussed the applicability of Custody of Vaughn, 422 Mass. 590 (1996) to the issues of domestic abuse in this case. It noted that counsel for the parties agreed that the “principle established in that case” that the judge “should make detailed and comprehensive findings on domestic violence when making custody determinations, applies in proceedings pursuant to G. L. c. 119 and G. L. c. 210.” (Lilith, at 139). Despite DSS counsel’s assertion that there was no credible evidence of domestic abuse, the Court disagreed. While it noted that it was difficult to make a judgment on the issue of abuse because the claims were several years old and disputed, certain acts were undisputed (e.g. Father backing car into Mother), which required careful consideration of domestic violence issues. The judge had not made findings on several significant claims, so the Court remanded the case for further review regarding the domestic violence and its impact on Lilith and Father’s parenting ability. The Court affirmed the judge’s finding of unfitness of Mother, but reversed the judgment of custody to Father, pending further review by the trial court. The Court permitted Father to continue caring for Lilith under temporary custody.

Comment: For those working with child protective cases, it is clear that the findings in Vaughn and the statutory sections in G.L. c. 209, § 38; and c. 209C, § 10(e), (rebuttable presumption that a finding of domestic abuse warrants determination that perpetrator should not have legal or physical custody) apply to care and protection/TPR cases. What was interesting was that the allegations of domestic violence involved acts that were several years old and disputed. However, the Court suggested that it was within the power of the trial judge to determine the credibility of some of the allegations, given the evidence available at trial, including Father’s own loss of control in the courtroom.³⁵ The other issue was that the finding of Mother’s unfitness was independent of the Court’s remand back to the trial court on the issues of domestic violence and the Father’s ability to parent (even though in other testimony, he appeared to be functioning well in that role).

The apparent lesson for the GAL is that, whenever allegations of domestic abuse arise, it is essential to investigate those claims with respect to the parenting abilities of the alleged perpetrator (sometimes more than one), the context of the alleged acts, and the impact on the child.³⁶ Given that this is the task set out for the court itself, the more data a GAL can provide on the issue, the more likely that any  decision will have a solid factual foundation.

How would a GAL have framed recommendations in this case? If Father were an adequate parent, the domestic abuse notwithstanding, a GAL could suggest alternative solutions in which Lilith would remain with Father, while he sought treatment for his abusiveness (monitored through DSS or a GAL/court investigator). Alternately, Lilith could live with a third party until Father was no longer a threat and could maintain regular contact with Father through protected visits. Whatever the choices, it would assist the court for the GAL to discuss the pros and cons of those alternative recommendations or suggestions.

The other issue this case raises relates to the challenge of suggesting or recommending solutions in families where each parent has significant dysfunctional behaviors. This was a state intervention case which discussed issues of mental illness, substance abuse, domestic violence, criminal behavior, as well as child abduction. Despite that, there were apparently enough positives for the trial court to award custody to the father, who had been supporting mother’s visitation. It seemed amazing that Lilith, whose parents had such personal and moral challenges, managed to keep both of her biological parents in her life. Yet, as in so many instances, we do not know whether that proved to be beneficial to her over time.

35 Alex Jones commented that the Appeals Court will often defer to the credibility assessment of the trial court, when they want to uphold a trial court’s decision.

36 Indeed, the Category F standards and the proposed E standards require the GAL to screen for and, if needed, to investigate issues of domestic abuse. The GAL must also be alert to safety issues and take no action that would threaten someone’s security.

K.A. v. T.R.

Massachusetts Appeals Court

86 Mass. App. Ct. 554 (2014) at: http://masscases.com/cases/app/86/86massappct554.html

Keywords: Custody. Divorce and Separation, Domestic Violence

GAL/PC Highlights: In this case, the trial judge awarded physical and legal custody to Father (K.A.) despite the fact that he had been abusive to Mother (T.R.). The judge made clear findings to support this decision, including consideration of: the children’s preferences; of the fact that Father was not abusive toward the children; that Father had not undermined the children’s relationship with Mother and supported her relationship with them; that there was a potential for violence between Mother and the children; that her parenting abilities were compromised (by mental health issues); that the children felt emotionally and physically secure with Father: and that there were risks to the children were Father not to have physical custody.

Background: Father filed for divorce in April 2010, asking for temporary custody of the two children (because of risk to them from Mother) and occupancy of the marital home. Thereafter, the parties agreed to shared legal and physical custody of the children with mother having sole use of the home. A GAL was appointed and filed a report in November, 2010. During 2010 and early 2011, Mother filed contempts on three occasions, alleging that Father had violated specific terms of the court orders. Trial was held on five days during spring-summer, 2011. Before the issuance of the Judgment, both parties filed various motions and pleadings. Father filed an emergency motion, seeking increased parenting time, which was allowed. The Judgment followed in June 2012 (almost 10 months after trial ended). There were two children, a boy, age 13 at trial, and a girl, age 10 at trial. The judge awarded Father primary caretaking responsibility, while providing “substantial parenting time” (at 556) to Mother. Legal custody was shared. There were also orders for alimony (by Father) and child support (by Mother). Father was found not guilty of the contempts Mother had filed against him.

The pattern of their family life was fairly traditional. Father worked full time as a police officer and Mother part-time as a school lunchroom attendant. She was the primary caregiver and the homemaker during the marriage, observing all the typical responsibilities as such, including school and medical/dental issues. Because of Father’s work schedule, he missed many of the school and extra-curricular activities of the children. The parties had significant financial difficulties and credit-card debt, the stress of which was a prominent factor in their marital conflicts. There was also conflict over the lack of time Father spent in being with and helping out with family demands, leaving most of that onus on Mother. At trial, Mother alleged that Father was physically abusive to her on several occasions in the three years prior to separation. While the judge did not credit all of her allegations, he believed enough of them to note that there was a pattern of abuse, as well as citing specific instances of that.[29] The judge also cited information from the GAL report in support of those findings. Some of these instances were witnessed by the children, but there was no report that they were direct victims of his abuse. Mother did not report any instances of abuse to the local police, fearing that Father could lose his job and their primary source of financial support.

In the year before the separation, problems began to appear in the children’s relationship with Mother and her family, where the Mother’s relationship with the children had previously been warm and supportive. There was no explanation in the decision for this deteriorating change in her parenting, although in note 8, the Court notes that the judge made reference to mental health issues of the mother and lack of compliance with an anti-depressant medication regimen. There were also increasing arguments between the parents over her care of the children. The children expressed such worry that Father told them to awaken him, if they were engaged in an argument with her, which in fact they then proceeded to do. They were increasingly defiant and disrespectful of her and she was losing control over their behavior. On occasion, she became physical with them and once, one of them attacked her in the midst of one of these arguments. Mother, through her “clinical and forensic psychologist” (at 558) expert retained for trial, claimed that the children’s behavior was a result of Father’s “brainwashing”  and “alienating” of them in the months just preceding the separation of Father’s filing for divorce.[30] The judge rejected the testimony of Mother’s expert as he could find “no credible evidence” (at 559) of what the expert was claiming Father did to undermine the children’s relationship with Mother. In fact, as noted above, notwithstanding the domestic abuse, the judge found Father was supportive of that relationship and had instructed the children to listen to their mother.

3. The law: When it comes to the issue of child custody, “A custody determination requires a ‘realistic, commonsense judgment,’ which takes account of the fact that the ‘determination of custody is a choice among limited alternatives, all of which, invariably, have imperfections’ and evaluates them in light of the ‘well-being of the child[ren] and [their] future development.’” Murphy v. Murphy, 82 Mass. App. Ct. 186, 193 (2012) (at 560). When, as in the instant case, domestic abuse has been involved, M.G.L. c. 208 §31A requires a judge to consider evidence of past or present abuse toward a parent or child as a factor that would be adverse to the health of the child. When such a finding has been made, it creates a rebuttable presumption that custody to the perpetrator is not in the children’s best interests. That presumption can be overridden by a preponderance of the evidence that such custody would be in the children’s best interests. (at 560).
4. The custody orders and rationale: As noted above, the information available to the judge overcame the rebuttable presumption. Those data, much of which seemed to come from the GAL report, included the children’s estrangement from and antagonism toward Mother, her inability to manage them, the potential for violence between the children and her, and their sense of safety with Father. The GAL had posed the possibility, if placed with Mother, of the daughter’s assault of Mother or her running away from home or the concern of suicide by the son, who was at that time emotionally at risk. The GAL also offered an opinion that the likelihood of interparental violence was minimal post-separation. Lastly, the GAL suggested that future parenting arrangements should be about what is best for the children (including their safety), not about punishing a parent for past actions.

Mother argued that the judge failed to make significant findings about the effects of domestic violence to buttress his decision. On the contrary, the opinion details some of the relevant information the judge entered in his findings, particularly about the impact of domestic abuse on the children and their need for continuing therapy. Mother argued that the judge gave far too much weight to the children’s preferences to live primarily with Father, who, she further alleged, admitted no fault in his actions. The Court noted that these preferences were only one of several factors the judge included in his calculus of the parenting arrangement best for the children, and those preferences were not the decisive factors. The judge did not find credible Mother’s allegation that Father had coached the children to speak against her and prefer him and further credited the GAL’s report that the children’s wish for protection from mother were self-determined (and based on their own experience), not instilled in them by Father.

Mother further proposed that the judge did not understand the long-term use of domestic abuse, of its measure of power and control (by Father over her), and that granting him primary physical custody was, in effect, rewarding him for his abusive behavior. The Court noted that the judge had acknowledged an understanding of long-term abuse, but that the record (GAL, etc.) showed there had been no recurrence of violence between the parties after the separation and for at least a year before the GAL completed her report. As noted above, Mother’s claim of alienation was rejected by the judge, given the record of Father’s support of her relationship with the children and no credible evidence that he tried to undermine her. In the judge’s balancing of the various claims versus the evidence, the Court noted that the judge had hewed closely to the Court’s Guidelines of Judicial Practice: Abuse Prevention Proceedings (2014), which allows awarding custody to an abusive parent.

The remainder of the opinion refers to contempt issues over payment of alimony/child support.

One final addition. Often, one or both parties in such a high-stakes litigation have his/her own independent expert testify on his/her behalf. This is in addition to the neutral GAL. Mother’s expert in this case appears to have been well-informed in her professional opinions. That said, the importance of GAL testimony, based on a well-researched investigation, is significant. Footnote 11 of the opinion states,

“The judge found that there was credible evidence presented at trial that directly contravened the mother’s expert’s assessment concerning brainwashing. Among other things, the judge credited the GAL’s report which provided that “[b]oth of the children’s therapists are confused by the children’s extreme alienation from [the mother], and neither can point to anything the children say that [the father] has said or done, or anything that they as therapists have seen [the father] say or do, that would create or perpetuate this alienation.” The judge also credited the GAL’s testimony that she believed the father had not intentionally alienated the children from the mother and that the children have not been coerced or coached by the father.

The judge found further that unlike the GAL, who was an “impartial witness,” whom the parties mutually had selected, and who had interviewed the father, the mother, and the children on multiple occasions, as well as the children’s teachers and other collaterals, the mother’s expert interviewed only the mother, reviewed the GAL report, and listened to the trial testimony. The judge found that the mother’s expert’s recommendations concerning custody “contain[ed] limitations” and that he (the judge) placed “greater emphasis” on the GAL’s testimony and the GAL’s report with respect to custody. (The GAL recommended that the parties have shared legal and physical custody of the children, and that, if that did not work, then the father should have physical custody of the children.) The judge also found that much of the mother’s expert’s testimony was not credible because he did not find factual support in the foundation of her opinion.”[31]

Comment: The significance of this case, while apparent to the reader, bears emphasis. The decision to grant primary physical custody to Father runs against the legal grain with respect to domestic abuse against a primary caretaking parent. The decision notes the compromised parenting of the victim-mother and the physical and emotional risks to the children to be in her custody. In addition, the children expressed clear preferences to be with Father and were disturbed by the thought of being with Mother. Further, the domestic abuse ceased with the separation and Father reportedly continued to support Mother’s role and the children’s need to listen to her directives. Oddly, however, the judge, affirmed by the Appeals Court, awarded Mother substantial parenting time,[32] meaning she would have ample opportunity to be with the children who were, in fact (by the decision), at risk with her? The investigation and report of the GAL was clearly an important factor in the judge’s decision, including the GAL’s opinion that the intent of the Judgment should not be to punish Father (for his abusive behavior to Mother), but instead should focus on the children’s needs and security, for which Father was best able to provide. The confusion in this writer’s mind stems from the GAL recommending shared physical and legal custody, while detailing the risks to the children from a mother who had clear mental health issues and serious challenges in disciplining the children. In addition, the judge’s order could have been another version of shared (but not equal) parenting, depending on what “substantial” parenting time meant. This is one of those cases that begs for some follow-up to see how this unusual legal decision worked out.

One other take-away from this case is that it is incumbent on the GAL to seek out the details of partner aggression when either parent alleges this has occurred, as the nature and circumstances of intimate partner aggression vary with each couple and the particulars may determine what role such behavior plays in custodial recommendations. It is helpful to use some domestic abuse survey instrument for the types of questions to ask of either parent, starting with the most open-ended kinds of inquiries and then focusing in on the details of significant interactions where such aggression is alleged to have happened. A good example of this kind of survey is DOVE, which can be reviewed in Ellis, D. & Stuckless,N. (2006). Domestic violence, DOVE, and divorce mediation. Family Court Review, 44 (4), 658-71.

KARINA SCHECHTER v. YAN SCHECHTER (and a companion case)[33]

Massachusetts Appeals Court

88 Mass. App. Ct. 239 (2015) at:http://masscases.com/cases/app/88/88massappct239.html

Keywords: Divorce, Separation, Child Custody, Guardian ad Litem, Abuse Prevention.

GAL/PC Highlights: In this divorce proceeding, the Court affirmed the decision of the trial judge to award sole legal and physical custody to the Mother, to suspend the contact between Father and the child (for reasons of “physical, emotional, financial abuse” of Mother and damage to Mother’s relationship with the child), and to prohibit that contact for at least a year. The Court did not allow Mother’s wish to relocate to another state, as she had not addressed the two-pronged test as dictated by Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). As the trial judge had permitted removal, Mother had been in Illinois for three years at the time the Appeals Court heard this case. Since the trial judge had not terminated Father’s parental rights, and there was a possibility of his parenting time being restored, the Court remanded the case to the trial court to review the issues in her relocation.[34]

Background:  The trial court decision by a “conscientious judge” (at 241) took 18 days in 2010 and 2011, involved many witnesses and exhibits, and extensive findings of fact. Both parents were foreign nationals who had emigrated here, met, and then married in December 2002. The instances of emotional abuse began even before they were married and continued throughout. Father was in the real estate business and had accrued a fair amount of wealth, which prompted a pre-nuptial days before their wedding. Their son was born in February 2003. The recession in 2008 caused great financial stress to Father, resulting in his hospitalization and incapacity in spring 2008. In the meantime, Mother had graduated from dental school and began working in her new profession. The parties separated in May 2009 and Mother filed in early June. Father’s aggressive and threatening behavior toward Mother intensified (details in the opinion) and, in September 2009, she obtained an abuse protection order, based on further threatening acts by Father. One was witnessed by a visitation supervisor, who had been overseeing Father’s contacts with the son. Father also began to use questionable methods to shield his income from Mother, such as transferring business assets to his parents.

1. Guardian ad litem report: As part of the litigation, the judge appointed a GAL/psychologist to evaluate issues of custody and parenting time, and later, removal. The decision noted that the GAL observed family members and reported how dominating Father was toward Mother and the son, how he demeaned Mother (to the son), and how he rewarded the boy for certain kinds of information (about Mother). In contrast, the GAL observed that the Mother allowed the child to be himself and to have ideas and feelings unencumbered by fear of disapproval.
2. Parenting Issues: Contrary to Father’s claim about the findings being “minimal,” the Court noted the significant amount of information upon which the judge based her findings, including two years of experience with the family, hearing multiple witnesses, and reading the “detailed GAL report.” The findings of fact listed “numerous instances of the father’s abusive and degrading conduct toward the mother before and during the marriage,” (at 246) including threats to kill or assault her. Since the statute G.L. c. 208 § 31 requires consideration of “past or present abuse toward a parent of child as a factor contrary to the best interest of a child.” (at 246). where there is a pattern of such abuse, the judge must consider a rebuttable presumption that sole or shared custody with the abusive parent is not in the child’s best interests.” The Court found that the rebuttable presumption was appropriate in this case. In addition, the statute allows the judge, in weighing all the factors in the case, to impose restrictions on parenting contact, if those were determined to be in the child’s interest.
   1. In this instance, the judge correctly integrated all the information available, noting “the father’s lack of insight into the destructive nature of his behaviors, his tendency to blame others for everything, and his lack of impulse control.” (at  248). The judge also explained his rationale for suspending Father-child contact for a year, rather than normal or supervised visits. Citing an earlier decision, Opinion of the Justices, 427 Mass at 1203, which noted that a child in whose household domestic violence occurs “suffers deep and profound harms,” the Court affirmed that the trial judge exercised an appropriate use of her discretion in suspending parent contact.
   2. Father argued that the year-long prohibition against contact with his son was not supported by evidence of abuse of his son. However, the Court credited the judge with documenting evidence that the son witnessed a pattern of abuse of Mother (and at least one specific incident of abuse of Mother). The son was also a victim of his father’s efforts to undermine the boy’s relationship with Mother, thus providing a sound basis for suspending contact with the boy for a year. The judge concluded that “due to the father’s chronic misbehavior” any contact within the following year with the son would cause “serious emotional harm.” (at 253).
   3. Removal: The judge permitted Mother to move from the Commonwealth with the son “to the State of New York or another state if the opportunity for employment and security is more readily available elsewhere.” (at 253). The opinion then analyzes the removal decision through the two-pronged (real advantage/best interests) test devised in Yannas (1985) lenses of the various interests of the parties involved (see Rosenwasser (2016) and other removal cases for the risk/benefit analysis). The opinion noted that, while the trial judge enumerated many findings related to removal, the Court stated that the judge failed to determine there was a real advantage to Mother to move outside of the state and that this move would be in the best interest of the child. As the judge did not terminate Father’s parental rights, there was the possibility that parental contact could be resumed after a year and the judge needed to account for Father’s constitutional rights as a parent and his potential desire to seek a return to contact with his son.

1. Three years had passed since the trial court decision, during which time Mother had moved to Illinois. The Court determined that the trial judge should again decide whether Mother’s request to move is “warranted on the basis of a contemporaneous record.” (at 256). The Court appeared to weight that issue in favor of Mother, by noting that stability was an important factor to consider, as “itself is of enormous benefit to the child and any unnecessary tampering with the status quo simply increases the risk of harm to the child,” citing Custody of Kali, 439 Mass 834 at 843.[35] In a footnote (22), they noted no requirement for Mother to return. The judge had retired, so any hearing would be presided over by a new judge.
2. There were two other issues on appeal in this case, the prenuptial agreement and attorney’s fees, neither of which are relevant for the purposes of this casebook.

Comment: In this case, the information that the GAL independently observed and obtained was consistent with Mother’s evidence, particularly as it stressed the issues of power and control as exercised by Father. It also reinforced the great risk of Father using the child as “spy,” while at the same time debasing Mother in the boy’s presence. This could have potentially led to a situation of estrangement at best and alienation at worst, with the boy possibly aping Father’s behavior toward Mother. The circumstances of domestic abuse, control, and intimidation were so dramatic that the judge, affirmed by the Appeals Court, took the draconian measure of suspending all Father-son contact for at least a year. There was no discussion about how the GAL dealt with the issue of removal, but the Appeals Court remanded to the trial court the judge’s original decision to allow Mother to move. That was due to the fact that the judge neither addressed the two-pronged test in Yannas nor did he consider the various interests of the parties, including the son’s needs and interests, per the Appellate Court template for a removal analysis. The Appeals Court emphasized that the judge had not terminated Father’s (constitutional) parenting rights, so that his interests in revisiting parent-child contact after a year were ignored. That said, three years had passed since Mother left the Commonwealth, so that a new hearing would have to review and balance the parties’ current status, their various interests, and the need of the son for stability in his current environment.

EXPERT TESTIMONY

COMMONWEALTH v. THOMAS J. LANIGAN.

Supreme Judicial Court of Massachusetts

419 Mass. 15 (1994) at: http://masscases.com/cases/sjc/419/419mass15.html

Background: In Commonwealth v. Lanigan, 413 Mass. 154 (1992) (Lanigan I), the SJC allowed the exclusion of a DNA test because the process used for matching-evidence-DNA and defendant’s-DNA (in a rape trial) had not been generally accepted in the field of population genetics. At retrial, the Commonwealth immediately advanced a new and different process for determining the likelihood of a DNA match. On the basis of that new process, a judge in the Superior Court ruled that DNA evidence, which tended to incriminate the defendant, was admissible. At a subsequent bench trial, the defendant was found guilty of the charges and appealed on two grounds, the second of which was the basis of the admissibility of the DNA results. This time the SJC concluded the DNA evidence was admissible.

After discussing some of the details of the DNA matching process, the SJC noted that the defendant’s argument was “that the process by which the probability of a random DNA match was determined is not generally accepted in the scientific community and thus lacks a necessary basis for its admission in evidence.” (Lanigan, at 20). The Court had held in Lanigan I that the process used had not received general acceptance by population geneticists and upheld the pretrial ruling that the DNA evidence was not admissible. In this case (Lanigan II), the state used a process that provided the most conservative estimate of the probability that the evidence DNA belonged to someone other than the defendant.

The defendant cited various scientific opinions and studies that concluded that the method used by the state was not conservative. The Court then discussed “the standard for  determining the admissibility of scientifically-based expert testimony.” (Lanigan, at 17). The test that Massachusetts had used for admissibility of expert testimony based on scientific knowledge had been the Frye test, “that is, whether the community of scientists involved generally accepts the theory or process, citing Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923).” (Lanigan, at 21). They suggested that general acceptance in the relevant scientific community leads to the likelihood (but not the certainty) that the theory or process is reliable. They then wrote, “The ultimate test, however, is the reliability of the  theory or process underlying the expert’s testimony.” (Lanigan, at 24). Were the Frye test the only standard, there would be a risk that reliable evidence might not reach the court. The Frye test was related the Rule 702 of the Federal Rules of Evidence (FRE), which stated, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” (Lanigan, at 26).

In Daubert v. Merrell Dow Pharmaceuticals Inc., 113 S. Ct. 2786 (1993), the U.S. Supreme Court recognized that general acceptance, while relevant, was not the sole basis by which to determine admissibility. They listed other criteria, such as testability of the process or theory, peer review, and publication of the theory or process by the scientific community were  relevant factors in determining the admissibility of expert testimony based on a scientific theory or technique. The U.S. Supreme Court found that reliability was implicit in the concept of helpfulness to the trier of fact found in FRE 702. After reporting some of the definitions of reliability and validity in Daubert, the SJC went on to say that the United States Supreme Court opinion was consistent with Massachusetts’ “test of demonstrated reliability.” (Lanigan, at 26). They added:

We suspect that general acceptance in the relevant scientific community will   continue to be the significant, and often the only, issue. We accept the idea, however, that a proponent of scientific opinion evidence may demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance. This consideration has some application to the issue in the case before us, but the parties’ significant arguments bear on the acceptability of the ceiling principle by the relevant scientific community. (Lanigan, at 26)

It is also important to note that, in discussing the fact that there can be difference of opinion among experts, as there was in this DNA case, they wrote, “Unanimity of opinion among the relevant scientists is not essential even under the general acceptance test.” (Lanigan, at 27).

Comment: Consider this quote from the opinion, “We suspect that general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue.” This writer suggests that standard evaluative or investigative methods would pass a Daubert/Lanigan test, unless there was some aspect of them that was novel and different from what the GAL community (both mental health and legal practitioners) had been generally using. For example, AFCC had advertised and featured in its newsletter a recent book and article related to the use of play therapy techniques in evaluations.³⁷ Such methodology is not generally accepted in a forensic evaluation and, this writer suspects, could not pass a Lanigan analysis. A novel methodology or theory (e.g. the notion that child’s doll play accurately reflects a projection of her actual experiences) would likely require a higher threshold of  proof, such as the other Daubert/Lanigan tests might require, since it would not meet the “general acceptance” test of Frye. In a later case (below, p. 63, Adoption of Hugo, 429 Mass 219 (1998), the Court focused on the methodology and opinion of an expert evaluator. It held that the judge was not in error in relying to some degree on the expert, even though she based her opinion on established and commonly used clinical/investigative methods that would be difficult to replicate and would be devoid of any demonstrable error rate, as one might have in a “hard science” model. While Lanigan and Daubert establish criteria for the admissibility of expert opinion, the courts seem willing to distinguish between the physical and social sciences.

37 AFCC News, Spring 2005, Practice Tips: “The incorporation of play therapy modalities in a comprehensive child custody evaluation,” by Anita Trubitt, LCSW, p. 6. Her book is entitled, “Play Therapy Goes to Court, 2^nd Edition: Implications and Application for Contested Child Custody Cases,” and is self-published.

ADOPTION OF HUGO

Supreme Judicial Court of Massachusetts

429 Mass. 219 (1998) at: http://masscases.com/cases/sjc/428/428mass219.html

Keywords: Child Custody, Best Interest Standard, General Expertise of Evaluator, Specific Expertise of Evaluator, Evaluator Methodology, Adoption, Dispensing with parent’s consent. Parent and Child.

Background: The Department of Social Services and a minor child, Hugo, appealed from the rulings and judgment of a judge in the Boston Division of the Juvenile Court in a care and protection proceeding under G. L. c. 119, § 24-29, and G. L. c. 210, § 3. DSS proposed that Hugo, then four years old, be adopted by his foster mother, with whom he had lived from the age of two. The judge, in what he described as a “heart-wrenching” decision, concluded that Hugo’s best interests would be served by an alternative plan proposed by the parents. In this plan, he would be adopted by his paternal aunt, who lived in New Jersey. The Appeals Court heard the first appeal and reversed the trial court, ruling that the parents’ “risk-laden” plan could not be supported, when DSS had recommended an “advantageous, reasonable, and attainable plan of adoption.” Adoption of Hugo, 44 Mass. App. Ct. 863, 868 (1998). (Hugo, 429 Mass. 219 (1998) at 220). The SJC then granted the parents’ applications for further appellate review and affirmed the judgment of the Juvenile Court.

Hugo, a child with significant special needs, lived in a foster home. When adoption was possible, he was moved to a second home, where that pre-adoptive, foster mother had adopted his sister. Mrs. L., the foster mother, was aware of Hugo’s special needs, but did not do everything she could to address them, even though Hugo lived with her almost for two years. Mrs. J., Hugo’s paternal aunt, had a child of her own with special needs and was prepared to address Hugo’s needs in a significant manner. She was also a stable, wage-earning parent.

One expert said that Hugo’s shift to a third home would be damaging to him, while the expert for the paternal aunt said that Hugo had made a good attachment to the pre-adoptive, foster mother and, after a period of adjustment, would do so again to the paternal aunt, with whatever help he needed to do so. The SJC ruled… “trauma of his removal from the current (foster) home is outweighed by the long-term benefit of moving to a family better able to help him address his developmental challenges.” (Hugo, at 224).

In supporting his decision, the trial judge:

‘credited the paternal aunt’s expert (i.e. Beardslee), who said that Hugo “is attached to Ms. L. (foster mother) and to Gloria (his sister), that these attachments are predictive of his ability to form future attachments, and that where such an attachment is disrupted, a child typically will go through a period of adjustment and might display behavioral disturbances, but that steps could be taken to assist a child through this process.” The judge also credited the expert’s testimony that, as Hugo advances to the age of formal schooling, it will be important to minimize his developmental deficits so that he can interact with peers and teachers to optimize his continuing growth and development. (Hugo, at 224).

The SJC wrote:

Once the judge concluded that parental unfitness was established, he correctly determined that the central question was whether it was in Hugo’s best interests to remain with his foster mother or to be transferred to the care and custody of his aunt.

1. L. c. 210, § 3 (c). The “best interests of a child” is a question that presents the trial judge “with a classic example of a discretionary decision.” Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). We recognize that in this field it is neither possible nor desirable to make decisions with precision, and that “much must be left to the trial judge’s experience and judgment.” Id., quoting Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). (Hugo, at 225).

In considering the admissibility of the paternal aunt’s expert’s testimony, the SJC wrote:

Hugo (objecting to the ruling via his attorney) ignores Beardslee’s extensive experience in working with children and families, and focuses too narrowly on the specific facts of this case. There is no requirement that testimony on a question of discrete knowledge come from an expert qualified in [a] subspecialty rather than from an expert more generally qualified.” Commonwealth v. Mahoney, 406 Mass. 843, 852 (1990), citing Letch v. Daniels, 401 Mass. 65, 68 (1987). (Hugo, at 233).

Experience with adoptive and foster children might have been helpful, but it was not essential. The dispute here concerns two prospective adoptive parents. Beardslee’s extensive experience evaluating beneficial placements for children in custody and visitation disputes seems particularly appropriate. The trial judge concluded that Beardslee had sufficient education, training, experience, and familiarity with the relevant issues in this case to be qualified as an expert witness. We see no basis on which to conclude that he abused his discretion. See Murphy v. Chichetto, 323 Mass. 11, 15 (1948), and cases cited (decision regarding expert’s qualification rests largely in discretion of trial judge). (Hugo, at 233-34).

Hugo also challenge(d) the reliability of Beardslee’s methodology, urging us to require that an expert establish reliability in one of only five ways: (1) by proving it  is generally accepted in the professional or scientific community; (2) by testing; (3) by peer review and publication; (4) by showing that the analytical process has established validity; or (5) by the use of an accepted, standard methodology. See Commonwealth v. Lanigan, 419 Mass. 15 at 24-26 (1994). There is no such requirement. Beardslee testified that, in addition to the knowledge gained from her own training and experience, she had reviewed the case file, interviewed the parties, and gathered information from service providers, a methodology strikingly similar to that used by DSS’s and Hugo’s own experts. There is adequate support in the record for the judge’s conclusion that Beardslee’s testimony was based on a reliable methodology. (Hugo, at 234-35). (emphasis added).

Comment: The relevant issues in this case involve several:

1. The impossibility of predicting the outcome of
2. The Court’s decision in the child’s best interest to remove him from his pre-adoptive foster family, to whom he was securely attached, and place him with a family member in another state who was a stable person and who could better meet Hugo’s special needs. There was an assumption that the child would re-attach to his adoptive parent (aunt) and that he would have potentially more opportunities for a better life, despite the probable disruption in his stability. This decision contrasts to Custody of Kali (p. 119, this volume), a dispute between two biological parents, where a child’s interest is presumably served by maintaining attachment to a primary caretaker despite the likelihood that another parent is marginally more
   1. The logic of the court’s use of attachment theory is confusing and seems to turn attachment theory on its head. They noted the expert’s claim that the fact that Hugo was securely attached to his pre-adoptive foster mother of two years was the reason that she could recommend breaking that bond and developing a new bond with a new adoptive parent, albeit one who might better attend to his special needs. The rationale was that, since Hugo was securely attached, he was by definition “attachable,” and could, although with some distress or trauma, re-attach to a new parent. No one made the argument that breaking a secure attachment might thereby create a less “attachable” child by virtue of the new bond being less secure, because this would have been the third “parent” to have taken care of Hugo. One could see a scenario in which an insecurely attached child would be moved to another “parent,” in the hope that he/she would better meet the child’s needs and create a more secure bond. The court believed (and so stated) that the new adoptive parent was so superior (and that therapy could mitigate the potential damage) it was worth the risk – a risk in other cases that they are resistant to take – to Hugo’s growth and development, because they were tinkering with his ability to attach to a caregiver. The Court noted they had refused in the past and again in this case to recognize a presumption that a child who was “bonded” to a foster parent pre-adoptively must of necessity then be adopted by that parent, if an alternative placement is not with a biological
3. Lastly, the SJC spent some time considering the admissibility of the expert’s

testimony. It was interesting that, while the evaluator was not a specialized expert, her background, training and experience were very relevant. Moreover, the SJC took note that the standard investigation process she used – reviewing the case file, interviewing the parties, and gathering information from service providers – was a methodology strikingly similar to that used by DSS and Hugo’s own experts. They decided there was “adequate support in the record for the judge’s conclusion that (the evaluator’s) testimony was based on a reliable methodology.” (Hugo, at 234).

This case was post- Daubert and Lanigan and involved standard investigative/evaluative methods in a scenario involving a significant impact on a child’s life. The manner in which the Court dealt with this issue seemed more consistent with the concurring opinion in Canavan’s Case (p. 67, this volume), where Justice Greaney questioned whether a strict Lanigan analysis would be appropriate for the admissibility of expert testimony in the “soft sciences,” as well as the opinion in Lanigan, where the Court “suspected” that “general acceptance” would continue to be the significant standard for admissibility. Both of those ideas seemed relevant to admitting the expert’s testimony in Hugo. It would seem logical, then, that the generally accepted and methodology employed in family evaluations and investigations– interviewing parties, children, and collaterals, observations of family interaction, and reading relevant documents – should pass constitutional muster in domestic relations cases, too.

THERESE A. CANAVAN’S CASE

423 Mass. 304 (2000)

Supreme Judicial Court. at: http://masscases.com/cases/sjc/432/432mass304.html

Keywords: Expert opinion, Evidence, Scientific test, Reliability, Witness, Expert.

Background: The plaintiff, an operating room nurse, claimed that chemicals in the OR caused her to become sick and disabled. The industrial accident board (IAB) determined that she was temporarily unable to work and that her treatment was reasonable and necessary. The hospital appealed that decision and the Appeals Court agreed with the IAB, holding the evidence was properly admitted. The hospital sought further appellate review to the SJC, which reversed the decision of the Appeals Court.

When Canavan sought diagnosis and treatment, the hospital accepted the diagnosis of chronic sinusitis. She sought treatment with Dr. LaCava, a pediatrician and specialist in Environmental Medicine, a specialty not recognized by the American Board of Medical Specialties. After testing her, he diagnosed her as suffering from several disorders and Multiple Chemical Sensitivities (MCS) due to exposure to chemicals at her job. According to the diagnosis, these disorders were responsible for her being totally disabled.

Dr. Acella, a hospital expert in Allergy and Immunology, disagreed with LaCava’s diagnosis, instead asserting that some symptoms arose from non-specific stimuli and were of psychogenic origin, not MCS. He noted that mainstream allergists and immunologists or occupational medicine physicians did not recognize MCS. The issue for the SJC was whether the judge “properly admitted Dr. LaCava’s testimony…on which he relied for the ultimate determination.” (Canavan, at 308.

In its ruling, the SJC noted that, whether evidence is properly admitted depends on the rules   of expert testimony. They stated that the Court had relied on the Frye, or “general acceptance in the field of interest or the relevant scientific community” standard before Commonwealth v. Lanigan, 419 Mass. 15 (1994). It noted that an advocate could establish scientific validity without general acceptance, but in most cases general acceptance would suffice (Lanigan at 26).

The opinion then shifted to the question of whether the appellate court could use the then current de novo standard or the “abuse of discretion” standard, the second of which was suggested by the U.S. Supreme Court in General Electric v. Joiner, 522 US 136 (1997). In his concurring opinion, Greaney, J. stated, “The goal of Lanigan, as was the goal of the preceding tests, is to keep unreliable (or so-called “junk”) science from fact finders, thereby reducing the prospect of the return of verdicts or the rendition of decisions of dubious validity.” (Lanigan, at 29). Thus, novel scientific theories could be validated through a Lanigan/Daubert analysis, if they were too new to have gained scientific acceptance. The SJC cited Commonwealth v.

Sands, 424 Mass 184, 185-86 (1997), where the court said, “A party seeking to introduce scientific evidence may lay an adequate foundation either by establishing general acceptance in the relevant scientific community or by showing that the evidence is reliable through other means.”

They also indicated, “Even observation informed by experience” can be considered “but one type of scientific technique” that is no less susceptible to a Lanigan analysis than other types of scientific methodology.”³⁸ (Canavan, at 313). Later in the opinion, in footnote 5, they cite Lanigan at 24-26, “Application of the Lanigan test requires flexibility. Differing types of methodology may require judges to apply differing evaluative criteria to determine whether scientific methodology is reliable. In the Lanigan case, we established various guideposts for determining admissibility including general acceptance, peer review, and testing. Establishing the reliability of personal observations may in some circumstances require examining other criteria. Observations by a specialist, such as the tire expert-engineer in Kumho are subject to  a Daubert analysis in order to determine if the observations were sufficiently reliable to support the expert’s opinion. In Commonwealth v. Sands at 185-86, the SJC wrote, “If the proponent can show that the method of personal observation is either generally accepted by the relevant scientific community or otherwise reliable to support a conclusion relevant to the case, such testimony is admissible.”

In a concurring opinion, Justice Greaney wrote,

“Query whether a strict Lanigan analysis is applicable to soft science expert- testimony.” He suggested, “I expect that Lanigan will have little application to expert testimony in the so-called “soft” sciences, such as psychology and sociology, which are highly dependent on information derived from such sources as personal observations, clinical assessments, and statistical data. It is here, more than anywhere else, that an appellate court will defer to a trial judge’s exercise of discretion, once   the judge makes a decision as to the reliability of the process or theory underlying   the proffered opinions and the relevance of the opinion to a matter in issue.” (Canavan, at 30-31.

Comment: Packenham (2004) has suggested that anyone who engages in expert testimony should review this case, because an attorney might raise questions about methodology or reliability during expert testimony. This case and its predecessor, Lanigan, beg the question as to the nature of the processes involved in GAL investigations in family and juvenile court. If personal or clinical observation informed by experience is susceptible to a Lanigan analysis, then it does not matter whether one labels that process as scientific or not, as long as the process itself is reliable and has general acceptance in the field. There are components of an investigation that have scientific qualities, such as taking a family history, since that is a tried- and-true method of determining possible diagnoses or understandings of family problems.

Observations of parents and children is another method that has scientific aspects, since one might make comparisons of family interaction to determine where on the “bell curve” of family functioning this family might be, as well as where on the developmental curve any
particular child might be. That assumes some clinical/ developmental database or repository   of clinical data by which one could compare the family or child under investigation or observation. We are usually seeking evidence of parenting abilities or deficits, information about the nature of parent-child relationships, and data about the development and personality of the children in the family.

38 Packenham at 385 (2004) notes, “The admissibility of expert testimony based on observations and clinical experience is subject to a Lanigan analysis, which applied the Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) scrutiny regarding reliability.” The purpose is to assure that the expert provides opinions “based on reliable methodology.” Packenham, (at 386), notes that this case is important to review “several times as a summary of the standards for admission of expert testimony.”

The above methods, as well as other possible ones, such as psychological testing, are time-tested, logical means of gathering relevant data to speak to those larger family patterns or individual functioning within those patterns. There are writers who would argue that custody evaluations, as well as assessments pursuant to other family   law disputes, should be scientifically informed.³⁹ Thus, the assessment process relies on a knowledge base of science and the clinical or investigative skills (or art) to use that knowledge. This knowledge first contributes to the reliability (in legal terms) of the process because it produces data that can logically support the resulting conclusions and is relevant to the questions posed by the court. Second, it adds to the repeatability of an investigational method in that others should be able to use the same procedures to obtain reasonably similar results, with the flexibility to know when to vary procedures to deal with the demands of the individual case.

To paraphrase an analogy offered by Henry Bock,⁴⁰ a surgeon uses scientific knowledge of the body in his or her surgical methods, but he/she needs to respond to individual situations as they arise during surgery itself. A surgeon does not know with absolute certainty what he or she will find until the procedure is underway. Similarly, a family evaluator or investigator does not know what data he or she will find (or what individualized methods are needed) until the assessment has begun. In either case, reliable methodology or practice is at the foundation of the skill necessary to perform the relevant procedures.

39 Gould, J (1999). Scientifically crafted child custody evaluations. Part Two: A paradigm for forensic evaluation of child custody determination, Family and Conciliation Courts Review, 37(2), 159-178. He wrote that a custody evaluation is a scientific means of evaluating variables relevant to parenting and how those factors contribute to best interests. It requires “a standard set of methods and procedures” to both generate and analyze relevant information. (at 165).

40 Personal communication (9/25/05).

RELIGIOUS ISSUES

DIANE CAROL PALMER FELTON v. WAYNE FRASER FELTON

Supreme Judicial Court of Massachusetts

383 Mass. 232 (1981) at: http://masscases.com/cases/sjc/383/383mass232.html

Keywords: Divorce, Child Custody, Modification, Religious issues.

Background: The Felton’s had two children, five and two years old, respectively, at the time   of divorce. Custody was awarded to Mother and visitation to Father. Mother, a member of the Congregational Church, complained that Father, who had changed his faith to that of a Jehovah’s Witness, was teaching his beliefs to the children. She claimed this confused them and, to some extent, alienated them from her. A Probate Court judge modified the judgment to prohibit Father’s access to the children, unless he refrained from teaching the children about his faith.

Mother knew about Father’s religious interests during the separation, but she became concerned about the effects of his instruction of them. She tried to discourage this practice and they tried to meet and negotiate the issue. After Father and his new wife took the children to a ‘family’ convention of Jehovah’s Witnesses, mother decided to suspend his visitation, allowing Father only weekly telephone contact with the children. Father filed a contempt motion, while mother attempted to modify the divorce judgment. After a hearing on the issues, the trial judge ordered a limitation on Father’s visits; they could continue as long as he did not indoctrinate the children in beliefs that were contrary to those of Mother.

In its decision, the SJC discussed the idea that exposure to different religious practices or beliefs was usually a positive value, as it could be a “sound stimulant” for a child (Felton, at

235) in the context of promoting regular contact between a child and his parents. However, “in all events, the question that comes to the courts is whether, in particular circumstances, such exposures are disturbing to a child to its substantial injury, physical or emotional, and will have a like harmful tendency for the future.” (Felton, at 235). The Court warned against overvaluing the parents’ constitutional rights at the expense of the child’s physical or emotional health.

As to the case itself, the SJC said that there was little of substance in the trial record about demonstrable harm to the children, including minimal testimony about the alleged literalness of the Biblical interpretations themselves. Mother objected to the Father’s practice of not celebrating Halloween or birthdays, and his discouragement of belief in Santa Claus, the   Easter Bunny, or the Tooth Fairy, all of which she allowed the children to believe. Mother   was not intensely religious, but she did encourage Sunday school and the Bible reading that occurred there. The SJC suggested that some of the children’s reported distress derived from their knowledge of their mother’s feelings about their Father’s practices, and not from the beliefs or practices themselves. Father said that church practice frowned upon the above celebrations and stressed literal interpretations of the Bible. He asserted that those who did not believe as he did were in error, but, the Court reported, he did not think less of them because of those mistaken beliefs. Father also noted that the children’s visits were not all taken up with religious activities, but included more typical family things, such as movies, etc. The stepmother also had told the children that, if they were concerned about their mother’s reaction to the religious activities, they need not tell their mother. The Court said that made it more difficult to assess the children’s state of mind about these activities.

The SJC held that this case was a modification of an earlier judgment and required a substantial or “material change in circumstances” since the earlier decision. In reviewing the constitutional issues related to such a case, the SJC opinion stressed that other courts had held they would not interfere with non-custodial parents, when they exposed the children to their faith or beliefs, “absent a clear, affirmative showing that these religious activities will be harmful to the child.” (Felton, at 233). The decisions from other states indicated that “harm from conflicting religious instructions or practices, which would justify such a limitation, should not be simply assumed or surmised; it must be demonstrated in detail.” (Felton, at   234). The SJC noted the lack of clear evidence linking the children’s physical or emotional reactions with their visits to their Father. “General testimony (by mother) that the child was upset or confused (opposing testimony given by Father) will not suffice.” (Felton, at 239). It noted, “There are few ground-level facts to be found in the record in this entire matter.” (Felton, at 240). The SJC added that the judge erred in limiting visitation because of a lack of foundation in fact for the decision. The SJC attributed the trial court judgment to personal bias on the part of the judge, based on interjections he made during the trial.

In the final paragraph, the SJC offered suggestions as to the kind of evidence necessary to support a modification in cases such as this. They indicated such factors as “the (child’s) general demeanor, attitude, schoolwork, appetite, health, or outlook,” and recommended information from “church, school, medical or psychiatric authorities…(child’s) associates in or out of school.” (Felton, at 242). The SJC suggested that the court might appoint a guardian ad litem to assess the facts, to correct “possibly self-serving testimonies” of either parent.” (Felton, at 242). In a final comment, the SJC noted that two years had elapsed between the appellate decision and the trial court judgment, and it suggested some interim visitation plan be considered in the interim before any formal hearings begin.

Comment: Felton is an oft-cited case in appellate decisions and is the primary case with respect to contested religious issues. It has two important messages for GALs. One is that there has to be a compelling state interest before the state will interfere with a parent’s religious practices or beliefs as they affect children, and that state interest is in the welfare of the children themselves. That said, when this religious issue arises, it is essential that the court become aware of very specific facts. These “facts” bear on the question of possible harm to   the children from exposure to the particular religion or set of beliefs and should come from sources independent of the parents, such as school personnel, medical professionals, and therapists, etc. In addition, the court needs to know what was the nature of the parents’ religious practices before they separated and the impact of those practices on the children.

Kendall v. Kendall, 426 Mass. 238 (1997) below, is probably the best demonstration of how the GAL assessed the facts and applied them to the questions asked by the court. The task of the GAL is to help describe the links between the religious beliefs or practices and changes in the children’s behavior, as well as consider other explanations that might relate to reasons for the children’s behavior. It is clear from Felton that a modification will not succeed, if it is based on the fact that the children are primarily distressed in reaction to one parent’s concerns about the religious practices of the other. The “harm,” such as it is, must stem from the impact of the practices or beliefs themselves on the children.

In Kendall, Father’s beliefs (i.e. fundamentalist Protestantism) not only differed from Mother’s and children’s practice (in the religion in which they were being raised – Orthodox Judaism), his beliefs foretold serious eternal consequences to the children for not believing the way he did, which put them in significant psychological conflict between two sets of disparate religious beliefs. His behavior was also totally antithetical to the everyday behavior of the children related to their faith, in that he allowed or encouraged lifestyle practices (diet, clothing) that were antithetical to the rules of the Orthodox faith in which they were being raised. In Kendall, there was clear evidence of present harm and of likely future emotional damage to the children created by the imposition of the father’s beliefs and acts.

BARBARA ZEITLER KENDALL vs. JEFFREY P. KENDALL

Supreme Judicial Court of Massachusetts.

426 Mass. 238 (1997) at: https://caselaw.findlaw.com/ma-supreme-judicial-court/1089362.html

Keywords: Religion, Freedom of religion, Establishment of religion, Divorce and Separation, Child custody, Joint custody, GAL records.

Background: This is a lengthy case, but well worth the time it takes to read it. The parties were married in 1988. Mother was Jewish and Father was Catholic. Prior to marriage, they agreed that the children would be raised as Jews. Three children were born from this union, the youngest in 1993. The judge found that the children had a solid Jewish identity through their education and home practices. In 1991, Father became a member of the Boston Church of Christ, a “fundamentalist Christian faith.” In 1994, Mother shifted her religious beliefs to Orthodox Judaism and Ariel, the eldest child, began to study Orthodox Judaism. Shortly after mother’s shift to greater orthodoxy, the parties filed for divorce. Mother wanted to limit the children’s exposure to Father’s religion, to which the Father objected. The probate court appointed a guardian ad litem to consider the religious differences of the parties and its effect on the children. Mother was required to show in detail how exposure to the Father’s religious practices would be emotionally damaging to the children or would have a clear potential to   be harmful. The judge cited Felton v. Felton, 383 Mass. 232, 233 (1981), and noted that   some limitation on the religious practice of a parent is allowable, if it serves the best interest of the children.

In her judgment, the trial judge placed some restrictions on Father’s practice. She prohibited Father from taking the children to his church or from engaging in prayer with the children, if it would alienate them from their mother or their own Jewish identity. He could not share his religious beliefs, if these would cause the children emotional distress or anxiety about themselves or their mother. The judge particularly focused on one belief of the Boston Church that consigned to burn in hell anyone who did not believe that Christ was the Lord, which, of course, was not a belief of his children or their mother. Father was permitted to have pictures of Christ on his wall, but he could not in any way engage in a practice that undermined the children’s Jewish faith or identity. The judge also continued the appointment of the GAL, but changed the role into one that permitted intervention in disputes between the parents around these issues.

The SJC discussed the usual liberty interest that a parent has in his or her religious observances and in exposing his/her children to those beliefs or practices. It indicated that   any limitation on those practices would require a showing of harm so substantial that it   would be in the children’s best interest to prohibit them. The SJC noted that many states have dealt with this issue, but few have ruled on what constituted “substantial harm.” The SJC noted the conflict in limiting certain types of contact between the children and their Father, because the countervailing value of “frequent and continuous contact” was also usually in the children’s best interest, citing Felton at 234. The SJC cited a sampling of cases from other states. The trial judge decided to include the information in the GAL report almost in its entirety as the evidence of substantial harm, and the case cited many statements from that report regarding incidents in which Father undermined or otherwise showed disrespect for the children’s (and their mother’s) religion. The tenet that was most highlighted was the Father’s belief that, if his children did not accept Christ as Lord, they “are damned to go to hell where there will be ‘weeping and gnashing of teeth.” (Kendall, at 240).

The SJC also struggled with the value of children having exposure to both parent’s religious beliefs and practices, calling that, in many cases, a “sound stimulant,” but they then said, “…the question that comes to the courts is whether, in particular circumstances, such exposures are disturbing a child (sic) to its substantial injury, physical or emotional, and will have a like harmful tendency for the future. (Felton, at 234-235). Applying that standard to the facts of this particular case, I see substantial evidence of current and imminent harm, to these 7, 5, and 3-year-old children.” (Kendall, at 248). The SJC acknowledged that the GAL found only a few current instances of emotional harm to the children, but it noted that the   data he compiled clearly pointed to the potential for future harm in terms of the children’s self-worth, self-identity, and alienation from their mother. They trial judge found that as well, and the SJC affirmed the judge’s decision. The SJC did not accept the Father’s argument that the judge’s decision unduly burdened him in his practice of religion, noting instead that it    just limited how he could expose his children to that religion.

Another interesting aspect of this case was the trial judge’s decision to award joint legal custody, despite the intense religious conflict between the parents, a decision that Mother appealed, citing Rolde v Rolde, 12 Mass. App. Ct. 398. The SJC, crediting the judge with the fact that she had the opportunity to observe the parties during trial, affirmed her decision.

The SJC pointed to the fact that judge noted that the plaintiff- mother did not claim any other area of disagreement about parenting except for the religious differences. The conflict in the religious area alone was not sufficient to grant sole legal custody to mother, for which she  had pleaded. In a footnote (21) the SJC indicated the judge heard testimony for five days of trial and felt the parents were able to cooperate on other issues.

Comment: Father filed an appeal with the U.S. Supreme Court, which declined to review the matter. The case reflects the fine line that courts walk in permitting the greatest freedom of religious expression to parents, but not without considering the impact of those beliefs or practices on children, where religious beliefs are in conflict. One important message for GALs who investigate this kind of dispute is the need to do a detailed exploration of the impact of the different messages each religion and its practices gives to children and how each parent handles what can be opposing ideas. The SJC provided direct quotes from the GAL report, documenting the behaviors that he used to affirm current as well as potential harm to the children.

The decision over legal custody also has some lessons for GALs, particularly those who are asked, as often is the case, to make recommendations about physical and legal custody. This case, as the writer knows from personal experience, was a very intense one. It was sort of a domestic relations version of a holy war. Yet, the fact that the dispute over the children was limited to this area, in the court’s eyes, permitted the judge to award joint legal custody, nonetheless. That suggests that family courts will go to some lengths to find reasons to allow joint legal custody at a minimum, unless the facts are compelling enough that disagreements exist over a sufficient number of parenting issues to warrant an award of sole legal custody (or significant domestic abuse issues exist). It reminds GALs to be mindful of the areas of parental agreement as well as conflict when considering this question in an investigation.

An interesting side issue in this case was that the Father had objected to the GAL’s refusal to release his records for Father to review in preparation for trial. The GAL withheld those records with the permission of the court. The SJC, in footnote 17, said that did not constitute error because, “The defendant was not denied an opportunity to rebut the GAL’s report or cross-examine the GAL. See Gilmore v. Gilmore, 369 Mass. 598, 605 (1976) (finding error where judge refused to allow GAL to testify at trial). The defendant had a copy of the GAL’s report and took advantage of his opportunity to cross-examine the GAL at trial.” (Kendall, at 248). This is often a concern of a GAL. This writer has typically released all records to both parties when asked to bring them to a deposition. However, if a GAL does not wish to release records, he or she should file a motion to quash for the court to determine whether it will allow the GAL to protect the records, perhaps even citing this case as precedent for such a plea. One wonders whether, under cross-examination, a GAL would be allowed to refer to notes (to refresh memory), if the examining attorney had been prevented from seeing those notes before trial.

SEJAL M. SAGAR vs. MAHENDRA K. SAGAR

Massachusetts Appeals Court

57 Mass. App. Ct. 71 (2003) at: http://masscases.com/cases/app/57/57massappct71.html

Keywords: Divorce, Separation, Child Custody, Freedom of Religion.

Background: Amidst a high-conflict divorce between two devout Hindus, Father sought permission to perform a Hindu ritual upon their daughter, who was just over five years old at the time of the appeal. He also appealed the previous judgment of (a) physical custody to Mother and (b) joint legal custody to them both. The parents had an arranged marriage in India in 1990 and were barely familiar with each other at the time of the wedding. Shortly thereafter, they immigrated to the United States, where, in June 1998, their daughter was born. They separated five months later. They were observant in their religion during the marriage, including performing religious ceremonies attendant to special occasions, such as their daughter’s birth. They attended a Hindu temple weekly and had an altar in their home at which they worshipped. They had a volatile relationship, and the trial court found that the husband had been physically and verbally abusive toward the wife (e.g. threw things at her, hit her with a rolling pin, pulled her hair, and burned her with a cigarette, among other aggressive/abusive acts). He was also very controlling, managing his wife’s contacts with friends and family, and he threatened to stop supporting his wife’s college education, if she did not get all A’s. He also made questionable transfers of marital assets and did not comply with court orders to put funds in escrow. In the findings, the judge determined that everything to which Father testified about his financial issues was not credible.

The parents disagreed over the necessity of the ceremonial rite, which involved ritual cutting of pieces of the child’s hair while offering prayers, and then shaving of the child’s head and placing an “auspicious mark” on the head. Father said it was necessary to perform this rite prior to the child’s third birthday, it was essential to the daughter’s longevity and health, and it was a requirement for a Hindu marriage. Mother disagreed, noting she had not gone through that ceremony as a child, and it had never been an issue for her wedding. The trial court denied permission for the ceremony, finding that the Father’s motivation for performing this ceremony was not purely religious, but was also a means of his control over Mother, and the Appeals Court noted that the record supported the judge’s finding. The judge also found that the Father’s religious beliefs were sincerely held. The Court then analyzed the case in terms of competing rights, that of his free exercise of religion and both parents’ right to direct a child’s education and upbringing. For Father, even though his motivation was not “purely religious,” his sincerely held belief was sufficient to warrant the Court’s consideration of his request. As for the constitutionally protected right for a competent parent to raise a child in the way he or she sees fit unfettered by state interference, it was clear that Father’s interest in performing the ceremony competed directly with Mother’s interest in not doing so.

For a court to intervene where a parent’s fundamental right to practice his or her religion is at issue, there has to be a compelling state interest, such as preventing demonstrable physical or psychological harm to a child. Where religious views or practices cannot co-exist, the state may not intervene to choose one parent’s practice over another without the existence of a compelling state interest, such as the welfare of a child. Such was the issue in Kendall v. Kendall, 426 Mass. 238 (1997) (this volume, p. 75+), where Father’s fundamentalist Christian beliefs competed with mother’s orthodox Jewish practices, and where the children had been raised in the Jewish faith.

In the instant case, the Court cited Felton v. Felton, 383 Mass. 232 (1981) at 233, where it stated that, when the best interests of the child are at issue, the Court can limit one parent’s practice of religion. Where competing religious interests occur, as in this case, it was Father’s burden to show that failure to perform the ceremony would harm the daughter, so that the state would intervene on his behalf and order it to occur. The Court decided that Father had failed to meet that threshold issue, because he had not demonstrated in detail how the failure to undergo that ceremony would harm the child. It said that neither parent showed that harm would befall the child, regardless of whether the rite was performed or not. Since the evidence was not strong either way, the Court decided that the most limited intervention in the life of this family was not to order the ceremony performed, since it could occur later. Moreover, the lack of such an order did not otherwise restrict either parent from his or her own individual religious observance. It also permitted the child some control, long term, over her own religious preferences, while still being open to her parents’ respective teachings.

The Father also appealed the trial court’s order on physical custody to Mother. The trial judge found that the child was at ease with each parent and that, in turn, each of them loved her. The judge also found that the parents “are willing to meet the child’s needs and work together to comply with the parenting plan.” (Sagar, at 79). The Appeals Court noted that the parenting plan allowed regular contact between Father and child, and that there was no error in ordering physical custody to Mother and joint legal custody to both parents.

Comment: This is an interesting case for several reasons. What was important was what was not ordered, or to put it another way, what was ordered in the context of the findings the court made. This case was post-Vaughn, but there was no analysis of the impact of the domestic abuse against Mother either on the child or on Mother herself, and the rebuttable presumption (against joint legal custody to an aggressor in the context of domestic violence) aside, the Court upheld the joint legal custody order of the trial judge. The Court noted that the parents “are willing to meet the child’s needs and work together to comply with the parenting plan.” (Sagar, at 79). Mother did not raise the Vaughn issue during the trial, and therefore could not do so during the appeal. Had she done so at trial, the judge’s findings of fact might easily   have supported a sole legal custody order.

Another aspect of the legal custody issue is that it is not a categorical, either-or issue, as noted in the commentary on Rolde and Kendall earlier. It seems to this writer that, if just one or two issues exist about which parents can agree or cooperate, such as education or health, the Court leans toward awarding joint legal custody, absent a finding of domestic abuse such that shared legal custody is inappropriate. Thus, when the Court poses the question of “legal and physical custody” in its orders of appointment, it behooves the GAL to do a detailed analysis of those issues around which the parties have cooperated and those around which they have not. There may be areas of childcare in which one parent has taken the lead, while the other parent has simply accommodated to that, without active participation. This raises again the thorny question of whether the type of custody is a determination a GAL should make in his/her recommendations (when recommendations are permitted), given that there is no specific degree of cooperation or formula for types of cooperation suggested by the appellate law.

In Rolde v. Rolde, 12 Mass. App. 398 (1981), the Court said, “Although complete agreement between parents to implement joint custody may not be necessary,” in order to be effective “joint custody requires two capable parents with some degree of respect for one another’s abilities as parents, together with a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions.” (Rolde, at 405-06). There is, of course, an assumption in that statement regarding the existence of some body of knowledge beyond common sense about how married couples make childcare decisions. Clinical experience has taught that high-conflict separated or divorced parents’ decision-making is likely to be similar to married parents in high conflict. High conflict appears to be high conflict, regardless of marital status. Each is detrimental to a child’s development.⁴¹

According to the trial judge in Rolde, those parents agreed on virtually nothing with respect to rearing their children, in addition to maintaining their intense mutual antagonism. In Kendall, it seemed that the critical factor in awarding joint legal custody was the lack of disagreement (note the double negative) over certain areas of childcare, despite the intense antagonism generated by the religious conflicts. In dealing with this issue in high conflict families, some GAL’s in their recommendations designate areas of childrearing over which each parent should have authority, when neither one can work with the other in several areas.

The other aspect of the case was the obvious one, which is what level of analysis does a GAL do when faced with a conflict of competing religious beliefs or practices, even if, as in this case, both parents were of the same faith? It would seem the issue is not whether the beliefs are part of a specific religious doctrine (absent predictable harm to a child from certain religious practices), but whether the beliefs are sincerely held. Parents contesting custody in the context of religious differences will often raise questions about the specific content of one religion or another, especially if one of them is not a mainstream religion, such as the Jehovah’s Witnesses in Rolde, or, the Boston Church of Christ in Kendall. In such an  instance, to provide the information most useful for the court requires the GAL to tease out what physical or psychological harm, if any, did or likely could result either from a certain practice being engaged in (as what Father did in Kendall), as well as from the failure to  engage in that practice (as in the ceremony Father wanted to perform in Sagar). That would require detailed information about the child’s developmental status, the specific nature of the beliefs or practices at issue, and how the interaction of those factors affects a child’s thinking, emotions, or behavior.

41 Cummings, E.; Iannotti, R. & Zahn-Waxler, C. (1985). Influence of conflict between adults on the emotions and aggression of young children. Developmental Psychology, 21, 495; and Davies, P. & Cummings, E. (1994). Marital conflict and child adjustment: An emotional security hypothesis. Psychological Bulletin, 116, 387.

JUDICIAL IMMUNITY FOR GALs.

VIRGINIA LALONDE & another⁴² vs. BRUCE EISSNER & others.⁴³

Supreme Judicial Court of Massachusetts

405 Mass. 207 (1989) athttp://masscases.com/cases/sjc/405/405mass207.html

Keywords: Judicial immunity, Evaluation, Malpractice.

Background: LaLonde sued Dr. Bruce Eissner in Superior Court, seeking damages arising from his allegedly negligent psychiatric evaluation of the LaLondes and their child. The Superior Court dismissed her suit on a motion for summary judgment. She then appealed that dismissal. In a highly contested and high-profile case (in terms of news media) involving sexual abuse allegations in the context of a custody dispute, LaLonde had sought damages from Dr. Eissner and other mental health professionals, who had performed various court- ordered evaluations. The Superior Court, where Mother’s complaint was heard, dismissed the complaint based on the legal principle of absolute judicial immunity. By granting direct appellate review, the SJC assumed responsibility for the case from the Appeals Court.

The essence of LaLonde’s complaint against Dr. Eissner was that he was negligent in his evaluation duties. His alleged negligence harmed to the child, because it permitted continued visitation with Father. Dr. Eissner’s defense was that he was entitled to quasi-judicial immunity, as the Probate Court appointed him to do the evaluation and report to the Court. The facts showed that the Probation Department asked Dr. Eissner to evaluate the parties.

Dr. Eissner’s deposition testimony, the parties’ affidavits, and the relevant Probate Court documents were all before the motion judge. The record showed that, in the context of a visitation dispute, a Probate Court judge ordered the Probation Department to conduct a visitation investigation and to arrange for a psychiatric evaluation of the LaLonde family. Pursuant to that order, Probation Department personnel asked Dr. Eissner to conduct the evaluation. Prior to the summary judgment, LaLonde had tried to impugn Eissner’s reputation and ability to practice through a complaint to his professional licensing board. A state medical tribunal had heard the malpractice complaint filed by LaLonde and found insufficient   evidence to raise the question of liability.

Mother did not dispute that the Probate Court had ordered the Probation Department to evaluate the family nor that the Probation Department had asked Dr. Eissner to perform a psychiatric assessment as part of that court-ordered evaluation. The court had issued an order for a psychiatric evaluation “to be arranged by the Probation Department.” The Probation Department had recommended to the court that LaLonde attend these evaluation sessions with Dr. Eissner, and the court incorporated that recommendation into its original order. The SJC,

42 Her minor child.

43 Stephen LaLonde, Anita Mehlman, Barry Elkin, George Lordan, and Frances Goldfield. Only Eissner is involved in the present appeal.

Noting no disagreement on the facts, said, “…the issue before us is whether a psychiatrist chosen by the probation department to conduct a court-ordered psychiatric evaluation is entitled to quasi-judicial immunity.” (Lalonde, at 210). Citing various sources, including case law from other jurisdictions, the SJC noted the historical grant of immunity given to judges in the performance of their duties. It indicated that this immunity has been granted to other persons whose work “is an integral part of the judicial process” (Lalonde, at 211) and who “must be able to act freely without threat of a law suit.” (Lalonde, at 211). They said that when these other judicial officers act at a judge’s discretion, they are entitled to the same absolute immunity as the judge. The Court went on to assert that various quasi-judicial professionals, including psychologists and psychiatrists, would be very reluctant to serve the court, if they were threatened with liability for providing evaluations and offering expert opinions.⁴⁴ The public is also protected by virtue of the fact that the results of these  evaluations are open to the parties and the evaluator is subject to cross-examination, as Dr.

Eissner was in this case. They concluded, “…persons appointed to perform essential judicial

functions are entitled to absolute immunity.” (Lalonde, at 213)

Comment: As is apparent from the above, Dr. Eissner was also subject to a complaint to his professional medical board, which rejected Lalonde’s argument. This case does not offer protection from that kind of action against a court-appointed professional. However, it was a critical case for GALs, whose role is typically consistent with that of Dr. Eissner, and who are often appointed directly by the judge. The SJC was correct in noting that few, if any, professionals would accept appointments if they had to worry about having to defend themselves in a civil suit for liability with the potential for enormously high money damages. This work, as most who do it will attest, is difficult enough without having to worry about   that possibility.

Because there is no protection for GALs from litigant complaint to a professional licensing board, it is necessary for GALs to protect themselves when such complaints are made. Most professional malpractice insurance carriers provide a relatively inexpensive rider to cover legal fees in defense of a licensing board complaint. There are attorneys who specialize in representing GALs before their respective licensing boards and insurance coverage for this service is an essential expense.

44 By extension, anyone appointed as a guardian ad litem or performing such a role should be covered by quasi- judicial immunity. Per example, see the next case, Sarkisian v. Benjamin.

JACK NICHOLAS SARKISIAN V. ROBERTA F. BENJAMIN

Massachusetts Appeals Court

62 Mass. App. Ct. 741 (2005) at: http://masscases.com/cases/app/62/62massappct741.html

Keywords: Malpractice, Legal malpractice, Judicial Immunity, Guardian ad litem.

Background: In a domestic dispute, the trial court determined that the child required an attorney. The order read in relevant part: “the attorney for the child(ren) shall represent   the child(ren) in all hearings wherein the interests of the child(ren) are involved, including trial, and shall have the same rights of any other attorney in the action, including, but not limited to, discovery proceedings, cross-examination, and requiring attendance of witnesses…The attorney for the child(ren) shall file an initial written report and

recommendation with [the probate judge on or before December 6, 1996. When the attorney for the child(ren) has completed his/her preparation and initial report and recommendation, he/she shall provide copies of same to the attorneys for the parties and to the court.” (Sarkisian, at 742).

The Court delineated a list of eleven factors that the attorney should address in her report. The attorney, Benjamin, performed what, in essence, was her own investigation, including interviewing the children and both parents in their respective homes, reviewing documents, depositions, and spoke with therapists and an DSS investigator.⁴⁵ In her report she made various recommendations, including those relevant to custody, visitation, alimony, and child support. The parties accepted most of the recommendations and the court incorporated them into the Judgment in January 1997. The court also appointed Benjamin to monitor Mother’s subsequent visitation (Father was awarded physical custody) and to make further recommendations after Mother had obtained suitable housing for herself. Benjamin filed a follow-up report in June 1997, and recommended increased visitation time for Mother. In August 1997 she wrote to the parents to inform them that she still functioned as attorney for the child and expected to be copied on any correspondence between them or motions to the court. That was the last she heard from them.

In December 1997, in order to meet his financial obligations, including the payment of the attorney’s fee and his alimony obligations, Father sold the residence in which he and his son lived. In April 1999, almost one and a half years later, Mother and Father entered into an agreement giving the Father sole legal and physical custody of the child in consideration of a lump sum payment of $7,500 in lieu of any further alimony. Then, in November 1999, on behalf of himself and the child, Father sued Benjamin for legal malpractice. Benjamin filed a motion to dismiss on the grounds that her work was performed in a quasi-judicial capacity entitling her to immunity from damage claims. A judge of the Superior Court allowed the

45  As a side note, Benjamin’s procedure was consistent with the investigational method used by Beardslee, one   of the experts in Adoption of Hugo 429 Mass. 219 (1998), in which the Court deemed that her methodology was reliable and her testimony, therefore, was admissible. That further reinforces the idea that Benjamin functioned like a guardian ad litem. The message seems to be, “If it walks like a GAL and talks like a GAL, it must be a GAL.”

motion to dismiss as to Father’s claim based on her ruling that the Benjamin owed him no   duty (that is, she did not represent Father). As for the child’s claim, the judge denied the motion to dismiss, disqualified Father from continuing to represent his son in this matter, and appointed a guardian ad litem to investigate the merits of the claim. The guardian ad litem reported that the claim did not appear to have sufficient merit and that she did not believe that the pursuit of the claim was in the child’s best interests. Notwithstanding the guardian ad litem’s recommendation, the child’s new attorney continued to pursue this action and filed an amended complaint in which he alleged that Benjamin was negligent in having made recommendations regarding fiscal and visitation matters resulting in harm to the child by  virtue of the boy’s displacement from his home and erratic visitation by Mother. The Superior Court dismissed the claim through summary judgment for Benjamin, and the child appealed the dismissal of his claim. The child argued that Benjamin was not protected by judicial immunity because she was appointed to act as the child’s attorney and, in that role, she owed the same duty to him that a privately retained attorney would owe to his or her client.

The Court stated that Benjamin’s vulnerability to her client’s claim did not depend on the   label that the court assigned her, that is, attorney for the child, but rather depended on the functions she performed in that role. They referenced LaLonde v. Eissner, 405 Mass. 207 (1989) in this regard. While she was appointed to represent the child at any hearing or trial, Benjamin was also asked to make a report and recommendations to the court, duties ordinarily relevant to the functions of a guardian ad litem pursuant to G.L. c. 215 § 56A. Citing Gilmore

1. Gilmore, 369 Mass. 598 (1976), the Court noted that the attorney in her role was acting as an arm of the court and was integral to the judicial process. As such, they said, she was entitled to absolute immunity, so that she, like any guardian ad litem, could act freely without fear of liability. The Court referenced similar decisions from other states regarding the role of the guardian ad litem.

The child argued that Benjamin was negligent in her filing of the report and in her recommendations, because she should have foreseen that those recommendations would lead to the eventual outcome of Father having to sell his house. The recommendations included financial issues (alimony) and visitation ones. The child claimed that Benjamin should have foreseen that Mother’s past psychiatric history and behavior would negatively impact the visitation and would cause harm to the child. The child claimed that Benjamin did not properly monitor the visitation, as was ordered. In the end, the Court decided that, as the visitation monitor, Benjamin was also acting in a quasi-judicial capacity, and was entitled to immunity.

Comment: Extending the 1989 SJC decision in LaLonde (above), the Appeals court in this   case considered what Benjamin had done to have fallen under the umbrella of services ordinarily performed by a GAL, and she was thus entitled to absolute immunity from liability. What was interesting about this case was that Benjamin, in her role as attorney for the child, was deemed to have functioned as a GAL (and she performed many of those investigative services, including filing a report). Yet, nowhere in the case was there any mention of whether she would have had to be available for testimony, either at deposition or trial. In fact, in the event of trial or a hearing, she was given the power to examine witnesses. Yet, in her function as a GAL, even under Gilmore (which the Court cited), she would have been required to be a witness herself. Could she have cross-examined herself? It was a little surprising that the Court had invested such a broad range of power to her, but apparently not the requirement to testify, if called as a witness. How else would she defend her report and recommendation without cross-examination? That is one check on the immense power of the GAL and a condition for admitting a report into evidence. It appeared, in this case, that her opinion carried much weight. Since the parties settled, that answer remains unknown.

This case reinforces the issue of the importance of the GAL knowing the scope of his/her authority and keeping within the bounds of that charge from the court. For example, the Court stated, “The role evolved out of the defendant’s duties as a guardian ad litem in which she continued to perform a service for the court in investigating the facts, mediating the visitation problems in the first instance, and making recommendations pertaining to the same. In monitoring visitation, the defendant continued to act in a quasi-judicial capacity, performing a service for the court analogous to her duties as a guardian ad litem.” (Sarkisian, at 746). What is important here is that Benjamin’s duties may have been akin to her being in a dual role, perhaps even a triple role, in that (1) she was acting as a GAL – reporting and making recommendations, (2) mediating (or monitoring) visitation problems – acting as a mediator or parenting coordinator, and (3) having the ability to cross-examine witnesses at a hearing or trial – acting as an advocate. Mental health professionals are not likely to be able to have so many role conflicts, but attorneys or attorney-GALs could be. For most professions, two roles are one too many, let alone three. In terms of professional vulnerability, it is reasonable to think a GAL could be open to a complaint to his or her professional board, because of   multiple roles, even though protected from liability because of quasi-judicial immunity. It does not follow that multiple roles are acceptable, simply because the court gives a GAL the power to function in that manner. While the 2005 Category F standards prohibit multiple roles, that applies to mental health professionals and attorneys appointed as GALs. It would appear, logically – given the reasoning in this case – that it should apply to anyone who functions as a GAL, as did Benjamin in her role as attorney for the child, even though the court might not designate the professional as a GAL.⁴⁶

Another form of protection afforded by the umbrella of the court appointment was that of “visitation monitor,” according to the decision. While there is no case law directly on point, it would appear by extension that a parenting coordinator appointment (a ‘rose by any other name’?) would have immunity from liability, because he or she would be acting in a “quasi- judicial capacity.” The message appears to be, at the very least, “Don’t take on a parenting coordinator role without a court appointment.” Some attorneys have suggested that if the PC role is incorporated into an approved Judgment, it is tantamount to a court appointment. That reasoning is arguable, untested, and might place a PC at greater risk. A 2014 case, Bower v. Bournay-Bower, 469 Mass. 690 (2014), addresses some of those issues, and, even more timely (for this publication) is Hornibrook v. Richard and another, 488 Mass. 74 (2021)

46 Courtesy of the defendant herself, the Standards for  Attorneys  and Guardians ad Litem in Custody or Visitation Proceedings, promulgated by the American Academy of  Matrimonial  Attorneys,  Chicago  (1995) states (standard 3.7) that an attorney GAL “uses all appropriate procedures to develop facts which the decision- maker should consider.” Standard 3.8 requires the GAL to “make the decision-maker aware of all the facts which the decision-maker should consider.” Standard 3.8a adds, “If the GAL offers evidence or submits a report, the guardian should be duly sworn as a witness and be subject to cross-examination,” and 3.8b, “At the conclusion      of the trial or hearing, the guardian shall not make a closing argument or submit a memorandum to the court.”    The standards are different if the attorney is appointed as counsel for the child and not as guardian ad litem.

PRIVILEGED COMMUNICATION/CONFIDENTIALITY

ADOPTION OF DIANE

Supreme Judicial Court of Massachusetts

400 Mass 196 (1987) at: http://masscases.com/cases/sjc/400/400mass196.html

Keywords: Minor, Custody, Evidence, Communication with social worker, Child custody proceeding, Communication between patient and psychotherapist, Privileged communication.

Background: In January 1985, the trial court allowed a petition by DSS to dispense with consent to adoption (TPR or termination of parental rights). The biological mother appealed the petition and argued that, among other issues, the judge improperly admitted and considered testimony of social   workers and psychotherapists during the trial. Mother contended the social worker testimony should have been excluded under the privilege created by M.G.L. c. 112 § 135. The SJC ruled that the testimony was admissible under exception (d), which provides that social workers may disclose otherwise privileged information “to initiate a proceeding under . . . section   three of chapter two hundred and ten and give testimony in connection therewith.” (at 198).

They reasoned that the exception reflected a legislative intent “to balance the goal of protecting confidential relationships with the need to protect the well-being of children…” (at 198). They further noted that a c. 210 §3 petition involves “a drastic intervention in family life” and that the “information to justify such an intrusion necessarily involves a detailed and searching examination of the entire parent-child relationship.” (Diane, at 199). Thus, restricting the interpretation of exception (d) “would render unlikely if not impossible the appropriate resolution of such proceedings pursuant to MGL 210 §3.” (Diane, at 199). They noted that when cases reach the level of a TPR, children have already been in the care of DSS, and social workers are likely to have been involved for some time. Restricting the data available from such social workers “would often deny extremely valuable and relevant information to judges who must determine questions of a factual and most sensitive nature.” (Diane, at 200). The Court decided the social work testimony was admissible in this case.

Mother objected to the testimony of three other therapists, claiming their testimony should have been excluded under the patient-psychotherapist privilege created by M.G.L. c. 233

• 20B.⁴⁷ One therapist had an M.Ed. and did not meet the statutory definition of a psychotherapist that would warrant the privilege. One therapist was a psychiatrist and the other a psychologist, who testified at trial. The SJC wrote: “The mother is not entitled to challenge such testimony. General Laws c. 233, § 20B, makes clear that the privilege may be asserted only by the patient, or, if the patient is incompetent, by a guardian appointed to act on his or her behalf. See Petition of the Dep’t of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 290 n.21 (1987) (“Because the privilege belongs to the patient, it

47 Referring to the statute, the SJC indicated the following definition: “’Communications’ includes conversations, correspondence, actions and occurrences relating to diagnosis or treatment before, during or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing.” appears that the burden should be on the patient to assert the privilege”).⁴⁸ In a case such as this, where the parent and child may well have conflicting interests, and where the nature of the proceeding itself implies uncertainty concerning the parent’s ability to further the child’s best interests, it would be anomalous to allow the parent to exercise the privilege on the child’s behalf (emphasis added). The anomaly is magnified when, as here, neither the child’s attorney nor the guardian ad litem chose to exercise the privilege.” (Diane, at 201-202).

The court found: “At the hearing on a petition by the Department of Social Services to dispense with the need for a mother’s consent to the adoption of her minor child,

1. the judge properly admitted, under exception (d) to the social worker privilege created by G. L. c. 112, § 135, testimony by three social workers concerning information acquired in conversations between them and Mother or the child; (Diane, at 198-200)
2. the judge properly admitted testimony by a certain witness concerning information allegedly acquired in contravention of the patient-psychotherapist privilege created by
3. L. c. 233, § 20B, where the witness was not a “psychotherapist” as defined in § 20B; (Diane, at 201)
4. there was no error in admitting the testimony of a psychiatrist and a child psychologist concerning their conversations with the child, who was their patient, where neither the child’s attorney nor the child’s guardian ad litem chose to exercise the privilege, and where the child’s mother, who was not their patient, was not entitled to challenge the admissibility of such testimony.” (Diane, at 201-202)

Comment: This is the most relevant case on point regarding the necessity to have a special, separate GAL to waive the testimonial privilege of a child patient in therapy, whose parents are involved in litigation in family or juvenile court. One has to extend the reasoning in this case of TPR, in which the parent and child might have competing interests, to domestic relations cases in which each parent’s interests compete with one another, and either one  might have different interests than the children.⁴⁹ Since one of the basic needs of a child in divorce is to be free from inter-parental conflict, by their very nature these domestic disputes (i.e. custody, visitation, etc.) highlight how adverse to the child’s interest is the litigation itself, absent inadequate parenting by one parent. There had been discussion on a local listserv (MAGAL) about how much one could generalize this finding to other cases where non- litigating, divorced parents wish to waive a child’s therapeutic privilege. It would appear that Diane’s finding might apply where there is a foreseeable likelihood of litigation, otherwise

48 “It does not appear that a guardian was appointed for the specific purpose of waiving or exercising the child’s patient-psychotherapist privilege. See G. L. c. 233, § 20B.  A previously appointed guardian ad litem was allowed to waive the privilege with respect to Dr. Vodvarka’s testimony. We note, without deciding the question, that waiver by the guardian ad litem was probably an appropriate procedure. See G. L. c. 233, § 20B [“A previously appointed guardian shall be authorized to [exercise or waive the privilege on behalf of an incompetent patient]”]. We need not discuss the propriety of the procedures in this case, however, because the mother is not entitled to challenge the procedures relating to waiver any more than she is entitled to challenge the admission    and consideration of the psychotherapists’ testimony.” (Diane, at 202).

49 In the domestic relations case of Rolde v. Rolde, 12 Mass. App. Ct. 398 (1981) the Court stated, “The “best

interests” principle requires that the narrow focus be on the interests of the child. “[P]arents [too often] cannot be relied upon to assert the best interests of the child[ren] adequately because of their conflicting economic and psychological stakes in the outcome.” (Rolde, at 404).

Diane could easily constitute state interference in typical parental functioning,⁵⁰ which would ordinarily include releasing information from a child’s therapist to other caregivers, such as school personnel or pediatricians, among others. In starting an assessment, a GAL could ask the attorneys to file a motion for the court to appoint a guardian to waive the privilege, if the GAL believed the otherwise privileged information to be essential to understanding the case, and he or she could not obtain that data in any other fashion (such as from interviewing the child). Ideally, such a motion should be filed at the outset of a case so that the determination occurs in a timely fashion.

While this casebook rarely cites out-of-state cases, a recent one from the Supreme Court of our sister state of New Hampshire is particularly instructive, since it addresses the issue in the context of a custody dispute. In that case, the father wanted to review the children’s therapy records, as he believed they would provide evidence of the children’s alienation from him by the mother.⁵¹ The Court held that, when a child is in the midst of a custody dispute, the “parents do not have the exclusive right to assert or waive the privilege on their child’s behalf.” That process requires fact-finding by the trial court as to whether the waiver is in the child’s best interest. They cited, inter alia, the Massachusetts case, Adoption of Diane, in noting, “The weight of authority in other jurisdictions supports protection for the therapy records of children who are at the center of a custody dispute or whose interests may be in conflict with their natural guardians.” This case is worth reading, because it is on point with respect to custody disputes and because it provides a rationale for public policy that supports the value of child patient – therapist confidentiality. There is also a discussion in that case about regulations contained in the Health Insurance Privacy and Portability Act (HIPPA), in which health care providers may not release information to a minor’s personal representative (parent or guardian), if that release is prohibited by statute or case law, or if, in the health care professional’s judgment, such disclosure would not be in the interest of his or her patient.

In the years following this publication, controversy remains over this issue. Some judges consider it their responsibility to decide whether to waive the child’s privilege, while others believe the appointed guardian provides a substituted judgment for the child, which is sufficient to determine the outcome of that question. A GAL may have to know the practice of the particular appointing judge to learn who has the authority to make that decision.

50 The U.S. Supreme Court in the grandparents’ rights case of Troxel v. Granville, 530 U.S. 57, 66 (2000) reiterates the principle, ‘the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

51 In the matter of Kathleen Quigley Berg and Eugene E. Berg, 2005 N.H. Lexis 152, available at http://www.courts.state.nh.us/supreme/opinions/2005/berg/112.htm. I thank Adam Rosen for alerting me (and

MAGAL) to this case.

ADOPTION OF SAUL

Supreme Judicial Court

441 Mass. 257 (2004) at: http://masscases.com/cases/app/60/60massappct546.html

Keywords: Dispensing with parent’s consent, Visitation rights, Adoption, Privileged communication, Communication between patient and therapist, Medical record.

Background: Mother had been hospitalized in a private setting in 2000 for psychiatric problems (she had a long history of schizophrenia with multiple hospitalizations), but she refused to take her medication upon discharge. When she was transferred to a public mental hospital, during that inpatient admission she gave birth to Saul at a local general hospital. At that hospital, mother had been court-ordered to take her medication. She also had diabetes and was non-compliant with her medication for that disorder. DSS assumed custody of Saul and placed him in foster care.

Upon discharge from the public mental hospital, mother then moved back into her former group home, but still refused medication. Saul had been placed in foster care, but mother visited him there for an hour every other week for 17 months, although DSS offered weekly hour-long visits. Mother was often late to those visits and also refused parenting training that DSS provided. During the visits, social workers often had to intervene to help Mother with ordinary childcare tasks (e.g. diapering, comforting). Mother did not interact with Saul during visits and was reluctant to hold him close to her. She also had difficulty in understanding directions of any degree of complexity. The trial judge found that her limitations, both cognitive and psychiatric, made it unlikely that she would be able to appropriately parent Saul.

During the trial, evidence from her psychiatric records was introduced. She objected, first, on the basis that she had not waived her privilege and, second because her diagnosis had been introduced into evidence from the records.  She said the therapist had required communications on her part in order to determine the diagnosis, and therefore the diagnosis should have been  excluded.  In the discussion, the Court noted that “communications” between patient and therapist had to be made “relative to the diagnosis or treatment of a patient’s mental or emotional condition,” citing G.L. c.233 §20B. The statute defined the various terms, such as “patient” and “communications,” and noted that the legislative intent was to protect such information for the purpose of effective treatment. It states that a “patient” is a “person who during the course of diagnosis or treatment, communicates with a psychotherapist,” as applicable to marital therapy, family therapy, or consultation in contemplation of such therapy, but does not necessarily involve institutionalization. “Communication” includes “correspondence, actions, and occurrences,” which relate to diagnosis or therapy, but does not include the diagnosis itself. Only the communications necessary to make the diagnosis are protected, but not the diagnostic label. The Court went on the state that a finding of unfitness could not be based solely on the diagnosis or on the conclusion that mother suffers from a mental illness. They noted this is “relevant only to the extent it affects a parent’s capacity to assume parental responsibility and the ability to deal with a child’ special needs,” (Adoption of Frederich, 405 Mass. 109 (1989). In Saul, there was a significant and demonstrable connection between Mother’s mental illness and her inability to parent her child.

The Court struck from the record testimony by the psychotherapist about predictions of future behavior, which were based on confidential communications. This was information beyond testimony of simple diagnosis. In the course of mother’s treatment, she was forced to take medication by court order and she signed a statement that she understood that her conversations with the medicating psychiatrist would not be protected (Lamb statement).

Such information was thereby not privileged.

Comment:

The case, among others, suggests that certain information might be accessible from a child’s therapist with parental authorization and court appointment, such as the identity of the therapist, number and frequency of visits, diagnosis, or “general substance of communications,” but no the actual communications themselves.

In the footnotes (6), there is an extensive discussion of the testimonial privilege for patients who have been hospitalized and where that begins and ends. It suggests that, when having a parent sign a release of information for psychiatric records, the authorization should clearly state that what is sought and the end date of the time period for which the release is valid.

Two questions that arise are one, whether Mother was having trouble understanding directions about parenting from social workers observing her visits, and two, was she competent to understand the Lamb statement, waiving her privilege? Understandably, these are two different cognitive functions and it did not appear that she raised the issue in court of her competence to understand the Lamb warning. When GALs are giving Lamb warnings to minors during investigations, it is arguable at what age these explanations are understood by the children receiving them. Comparable research in this area might be studies of adolescents’ ability to understand the Miranda warning.

Another logical question is how could a diagnosis be admissible if it derived in large part from the patient’s conversations with the therapist? In most instances, the diagnosis would not be possible without the patient describing symptoms to the therapist. Obviously, there are other data upon which a diagnosis can be based, such as observable behavior (patient actions and verbalizations reported by ward staff or by family members) that would be admissible. However, using G.L. c. 233 § 20B, in Diane the Court defined ‘Communications’ as including “conversations, correspondence, actions and occurrences relating to diagnosis (emphasis added) or treatment before, during or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing.” (Diane, at 200). Thus, diagnosis seemed to this writer inextricably related to the patient’s communications, but in this case (Saul), the diagnosis was admissible, while the communications that supported it were not.

P.W. vs. M.S.

Massachusetts Appeals Court

67 Mass. App. Ct. 779 (2006) at: http://masscases.com/cases/app/67/67massappct779.html

Keywords: Guardian ad litem. Divorce and Separation, Medical record, Privileged record.

The issue for the Court was “to determine whether a judge of the Probate and Family Court properly could allow a guardian ad litem (GAL) unrestricted access to some 2,000 pages of medical and mental health records of the plaintiff, P.W. (father).”

Background. The parents married in 1985 and P.W. (the father) filed for divorce in October 2003. With three children, ages 13, 10, and 7 respectively, the parents had been embroiled in a custody and parenting time dispute. The mother had temporary physical custody of the children. Father had an extensive psychiatric history that preceded his filing, including hospitalizations and therapy, which was ongoing during the litigation. M.S. (the mother) had significant concerns about Father’s mental health. Contributing to that was the fact that Father attempted suicide in April 2004. In the divorce litigation, Mother sought primary physical custody, while Father wanted shared legal and physical custody. Father had parenting time that mother supervised after the separation (due to his psychiatric disorder), but he moved the Court to withdraw that supervision in December 2004.

Father wanted a parenting plan that would prevent Mother from (what he perceived as) interference with his relationship with the children. The Court appointed a GAL, who, in March 2005 moved to have access to Father’s medical/psychiatric records. The GAL was willing to have the Court either limit the scope of that review or help determine which records were most relevant. Father was concerned about the release of all his records and disputed the GAL review. In May 2005, he told the Court that he would withdraw his motion for a change in custody or parenting time to avert any review of his medical records. He asserted that the release of those records would harm him and the children. He also sought to have the court withdraw the appointment of the GAL. The court permitted Father to amend his complaint regarding the custody and parenting time issue, but denied Father’s motion to withdraw the GAL appointment. Thus, the GAL evaluation proceeded.

In June 2005, the GAL submitted an interim report. While noting the obstacle to her investigation due to the dispute over Father’s records (not all of the voluminous record was available), she indicated that some continuing contact with their father was important for the children. She opined that any decrease in contact was not of benefit to the children, and that provisions should be made for regular contact “in any suitable setting supervised by an acceptable monitor other than their mother, or supervised by their mother if she is out of earshot of the visit.” (at 782). In September 2005, the Court granted Mother’s motion for sole legal and physical custody, but maintained the extant visitation arrangement (Mother supervising).

On October 2005, the trial court judge ordered Father to produce within a month “all medical and mental health records to the Court for an in camera review pursuant to [G. L. c. 233, § 20B], regarding [the father’s] visitation with the minor children.” (at 782). Later that same month, Father moved the court to extend the time for production of these documents and for advance notice of when such records would be released to the GAL or to Mother. He noted, among other reasons, that he wanted to protect his rights of appeal. The Court granted his extension, and so, in early December, Father handed in over 2000 pages of medical records. In January 2006, the court ordered that the GAL can review those records as part of her investigation, but that neither party nor counsel should have independent access to those records. The Court ordered also that, when the GAL finished her investigation and report, either party could move that the Court release records for preparation for trial. Father appealed that January 2006 order, stating that it violated various privileges. The appeal was “interlocutory,” meaning an order issued between the inception of the litigation and the conclusion, but the Appeals Court heard it, asserting that a decision would “avoid further interruption of the litigation and avoid waste of judicial effort.” (at 784).

Decision: The Court noted that Father had withdrawn claims for custody or parenting time, pleading that this obviated the need for a GAL. However, as part of his appeal, he had indicated he still wanted to retain some rights of contact with the children, and argued, therefore, that fewer of his records would be relevant. The Court held that the case needed to be remanded to the trial court to “clarify the status of the father’s visitation.” (at 784), and the judge could then determine what limits should be placed on such contacts. In considering the appeal on the issues of Father’s privilege, it referenced M. G. L. c. 233, § 20B (see appendix in Casebook), and noted exception (e) regarding child custody disputes, where the judge must balance whether the information to be gained is more important for the child’s welfare versus the need to protect the relationship of the patient with the therapist. Father argued that the trial judge erred in allowing the GAL to do an in camera review of the records, a task which should rightly be the responsibility of the judge. The Appeals Court agreed with Father, and noted that it was the judge’s responsibility to review such records, although she could have appointed a separate GAL or discovery master to help her review the documents if they were “overly burdensome.” In a footnote (10), the Court emphasized that it was uniquely the responsibility of the judge to determine which records would be protected, and she could not assign that task to the GAL or a discovery master.

The opinion noted that, in order for the judge to undertake such a task, the statute required Father to first “assert the privilege,” as it was “not self-executing.” Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002). “The actual assertion of the privilege is a requirement of the statute, not a meaningless formality or a foregone conclusion.” Id. at 335. If Father did not claim the privilege, his records could be considered not privileged. The Court noted that not everything in a record is privileged (once that is asserted), only those items that “contain the communications or notes of communications between the patient and a psychotherapist.” Petitions of the Dept. of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 287 (1987), and the law does not protect admission of aspects of a record that are ‘conclusions based on objective indicia rather than on communications from the [patient].’ Adoption of Abigail, 23 Mass. App. Ct. 191, 198-199 (1986).” Adoption of Seth, 29 Mass. App. Ct. 343, 353 (1990). See Adoption of Saul, 60 Mass. App. Ct. 546, 551-553 (2004) (diagnostic terms, without more, are not privileged).

The Court concluded that, if after hearing the issue on father’s parenting time, the judge determined there was no dispute over that, the issue of the records would be moot, since there would be no basis for an order requiring disclosure or judicial review. If there was indeed a disagreement surrounding visitation, the judge must determine whether the medical records are relevant to deciding about the issue. In that case, the judge would have to order Father to produce the records, assert which of the records are privileged and which are not, supported by affidavit. The judge would then have to determine if those selected records were privileged and whether it was more important (for the children’s welfare) to admit the relevant aspects of those than it was to protect the father’s therapeutic relationship. If the judge decides that the privileged material should be disclosed to the GAL, she could make such an order “with appropriate limitations on its disclosure and orders of confidentiality.” (at 787).

Comment:

In GAL practice, there are occasional circumstances wherein a parent does not want his or her records of mental health or substance abuse treatment disclosed. In such an instance, the GAL should motion the court for clarification or for further directions about such records, if the GAL believes there is information (not obtainable elsewhere) in those documents that would shed relevant light on the issues presented by the court. If the parent, as a competent adult, signs an authorization to disclose his or her medical information and does not assert the privilege (after being duly informed of the then discoverable nature of that information), he/she has waived that privilege. Occasionally, when  a client believes the information in such records is so sensitive that he or she fears what might happen if the other parent becomes aware of it,  and that information is relevant to the court’s questions, the GAL might request either that the judge review them in chambers or that the GAL review the records in the courthouse, and the records would remain in the possession of the court.

GRANDPARENTS’ RIGHTS

ELSA K. JONES V. ABIGAIL S. JONES

Supreme Judicial Court of Massachusetts

349 Mass. 259 (1965) at: http://masscases.com/cases/sjc/349/349mass259.html

Keywords: Parent and Child, Modification of decree, Guardian ad litem, Divorce, Custody of child, Report of guardian ad litem.

Background: This is a case that heralded by 30+ years the 1999 de facto parenting case of

Youmans v. Ramos, 429 Mass. 774 (1999). The biological parents of Wendolyn, Abigail and

1959. Thomas Jones married in New Hampshire in October 1959. They moved to California, where they had their daughter in April, 1960. They separated, and Mother and daughter returned to Massachusetts, where they lived for a time with her parents. Mother then went to the British Virgin Islands (BVI) to seek a divorce, temporarily placing Wendolyn with the paternal grandparents (Elsa Jones and husband). In the initial BVI divorce decree of December 1961, Mother retained custody, while Father had visitation. After returning to Massachusetts that month, she agreed to leave her daughter with the paternal grandparents until she obtained the final decree. Wendolyn was about 20 months old at that time. She then moved back to BVI, despite pleas from both sets of grandparents, because she enjoyed her life there and had made friends. In November 1962, almost a year later, she visited her daughter in Massachusetts for a few days. She was seeking work in New York, but she was too “unsettled” to take Wendolyn. She left for New York, leaving no address, and did not come back at Christmas to see her daughter. She vacillated about whether she would keep custody, but then toyed with a plan in March 1963 to take Wendolyn with her for six months to Hawaii, Florida, or San Francisco the following year. Shortly after that, the paternal grandmother filed a motion for temporary custody, which was granted. Wendolyn was just under three years old at that time and paternal grandmother had cared for her for about 15 months.

In May 1963, Mother moved to Miami Beach, living at a hotel where she worked. She was living with a woman who had just had a baby out of wedlock. She told paternal grandmother she intended to take Wendolyn with her to Florida. However, her job as a cruise hostess   would have required her to be away from her daughter for days or weeks at a time. Mother petitioned the court to revoke the temporary custody order, while paternal grandmother filed a motion to make the decree permanent. Despite Mother’s motion for custody in May 1963, when she visited the area in August of that year, she failed to see Wendolyn, although the paternal grandparents had invited her to do so. When she was here a few months later in November, she again did not take the opportunity to see Wendolyn. That totaled about a year since she had last seen her daughter and almost two years during which time the paternal grandparents had raised Wendolyn. The paternal grandfather was a physician, he and his wife had a comfortable primary home and a summer residence on Cape Cod, and Wendolyn, according to the judge, was well-adjusted and happy in her home with her grandparents. Father, who lived and worked in Boston, had been seeing Wendolyn on weekends, was “devoted” to her, andthe girl loved him. The judge found that no one on Father’s side of the

family had made any attempt to alienate Wendolyn from Mother. Part of the basis for the decision was the history of the very cavalier attitude that Mother had, first, toward Wendolyn’s needs for a mother- daughter relationship, and second, toward her daughter’s need for stability.

The judge decided that the temporary order of custody to the grandparents should be permanent in the interest of the “happiness and welfare of Wendolyn.” Wendolyn would have been living with her paternal grandmother for about two years. The SJC said that the governing issue was the welfare of the child “as a matter of law and of humanity.” (Saul, at 264). The appellate case was heard in February 1965, meaning almost another two years had passed.

A secondary issue that Mother appealed was the admission of GAL reports into evidence. The SJC dismissed this appeal with the explanation that the reports were available to counsel and the parties in accordance with G.L. c. 215 §56A. The fact that the report was hearsay was not unconstitutional. It was also acceptable for the GAL to have included recommendations, since it was clear from the findings that the responsibility for the decision in the case was that of the judge and not that of the GAL.

Comment: This is a relatively early domestic relations case in which the SJC awarded custody of a child to a non-biological parent. At that time, the SJC did not use the language common   to later de facto parenting cases, but clearly understood, first, that the grandparents had been acting in the role of Wendolyn’s parents, and second, that she was happy and had adjusted well to them and their caretaking. It was interesting that, while Father was involved, he did not seek custody. Finally, it was evident that Mother’s behavior showed a consistent lack of interest in caring for her daughter and her personal life evidenced a pattern of instability. If that had been a state intervention case, she might not have been deemed a fit parent. This is also a case wherein the SJC clearly focused on the happiness and welfare of the child as the primary issue and not the interests or rights of the parents. Compare this with Youmans, where Father remained interested in his daughter’s welfare, maintained some contact with her over years, and provided financial support during the time the maternal aunt raised the child.

As for the GAL issue, one objection among some family forensic specialists, mental health professionals and attorneys alike, has been that offering a recommendation on the ultimate issue (e.g. custody) is a usurpation of the role of the fact-finder, or judge.⁵² It is clear in this case that, from the SJC’s perspective, that objection is irrelevant, at least on legal grounds,⁵³ since the judge can accept all, part, or none of a GAL’s recommendations in forming his or her judgment of a case.⁵⁴ As long as the judge does not swallow whole the GAL’s opinions without exercising his or her own critical judgment, (Delmolino v. Nance, 14 Mass. App. Ct. 209 [1982]), there is no risk of the GAL assuming the role of the fact-finder.

52 For further discussion of this debate, see the Afterword in this casebook.

53 As noted elsewhere in the Casebook, at the time of this publication, Massachusetts’ Category E GAL’s (evaluators) may make recommendations in their reports, while recent court standards for Category F GAL’s

(investigators) prohibit recommendations, unless there is a specific instruction in the order of appointment to do so.

54 Alex Jones cautioned that case law has evolved and new justices have assumed seats on the appellate courts, so it was possible that they could reach a different result today.

JOHN D. BLIXT vs. KRISTIN BLIXT & another.⁵⁵

Supreme Judicial Court of Massachusetts

437 Mass. 649 (2002) at: http://masscases.com/cases/sjc/437/437mass649.html

Keywords: Grandparent visitation, Grandparent, Parent and Child, Interference with parental rights, Minor, Visitation rights.

Background: This was a very long case – the footnotes are as interesting as the text – in which the SJC dealt with two important constitutional issues, due process and equal protection, that are not relevant for the purposes of this summary. The facts were that the biological parents had not married, but shared legal custody of the child, who lived with Mother. Paternity had been adjudicated. The maternal grandfather filed for grandparent visitation under G.L. 119 §39D, the grandparent visitation statute. Mother and biological Father, the latter being the plaintiff-grandfather’s own son, opposed his desire to see the children. It was unclear from the case report what had been the extent of his actual relationship with the child. The trial court denied the maternal grandfather’s motion on substantive due process grounds (supporting a competent parent’s right to make decisions in the best interest of the child without state interference). The SJC quote was:

A judge in the Probate and Family Court, with respect to the mother’s due process challenge, concluded that the statute was unconstitutional because it infringed on the defendants’ fundamental right to make decisions “concerning the care, custody, and control of their child.” The trial judge reasoned that the statute “contains no presumption that [the defendants] are acting in [the child’s] best interest in denying visitation, nor . . . contains a requirement that the plaintiff demonstrate how [the child] is harmed by the denial of visitation.” The grandfather appealed, and we granted the mother’s application for direct appellate review. (Blixt, at 651).

The SJC decided that the statute was constitutional in terms of due process and equal protection. It vacated the trial court judgment and remanded the case for further proceedings.

In clarifying the statute, however, the SJC referenced the US Supreme Court grandparent visitation rights case of Troxel v. Granville, 530 U.S. 57 (2000), which supported the rights   of fit parents to make decisions for their children. The Massachusetts statute requires a showing of harm to the child due to the lack of grandparent contact, particularly in non-intact families. The same distinction does not apply to intact families. The statute in Troxel (Washington State statute) was overly broad, but the Massachusetts statute was more narrowly drawn and passed constitutional muster. The SJC held:

To obtain visitation, the grandparents must rebut the presumption (that a fit parent is competent to make a decision for his or her children). The burden of proof will lie with them to establish, by a preponderance of the credible

55 The biological father.

evidence, that a decision by the judge to deny visitation is not in the best interests of the child. More specifically, to succeed, the grandparents must allege and prove that the failure to grant visitation will cause the child significant harm by adversely affecting the child’s health, safety, or welfare. The requirement of significant harm presupposes proof of a showing of a significant preexisting relationship between the grandparent and the child (emphasis added). In the absence of such a relationship, the grandparent must prove that visitation between grandparent and child is nevertheless necessary to protect the child from significant harm, such that the state would then intrude into a non-intact family. Imposition of the standards just stated, as explained in specific written findings by the judge, ensures a careful balance between the possibly conflicting rights of parents in securing their parental autonomy, and the best interests of children in avoiding actual harm to their well-being.” (Blixt, at 658). The SJC concluded that Massachusetts’s statute was drawn narrowly enough to meet that criterion and was, therefore, constitutional. It also said that this “standard does not require de facto parent status on the part of the grandparents, but the standards are consistent with our cases concerning de facto parents.” (Blixt, at 658).

The SJC decided that a grandparent would have to make an initial showing that he or she can meet the burden of proof to overcome the presumption that the competent parent, who denied visitation, was acting in the child’s best interest. It would require a “detailed and verified affidavit setting out the factual basis relied upon by the plaintiffs (i.e. grandparent(s)) to justify relief.” (Blixt, at 666). The grandparent would have to satisfy that burden of proof by a preponderance of the evidence.⁵⁶

The dissent complained that the majority was reinterpreting the statute so that grandparents would not be legally capable of filing a motion for visitation, when otherwise fit parents are opposed to it. The majority held that Troxel eliminated a pure “best interest” test as the standard upon which to decide grandparent visitation. It stated that the requirement to simply file an affidavit claiming significant harm in the absence of visitation would result in protracted and stressful litigation. The dissent noted:

Fit, competent parents will still be hauled into court, and required to pay legal fees,  to explain to a judge their reasons for deciding not to let their child visit with a particular grandparent on particular terms. In order to defeat the request for visitation, they may have to “expose what can only be described as the family’s ‘dirty linen’.” (Blixt, at 678-79).

The dissent suggested strongly that the intent of the statute was to further the interest of grandparents, who might not have influence in the lives of their grandchildren, rather than to serve the best interest of their grandchildren themselves. It suggested the statute was overly broad in that it included any child whose parents did not live together, married or otherwise, straight or gay, and overly narrow in that it does not include children of intact marriages who may have the need of close relationship with a grandparent.

56 Packenham, (2004) at 445

Comment: The case focused almost exclusively on the two constitutional issues rather than on the human aspects of the case itself. That side of the story might have been interesting, if the decision had offered some detail about what relationship the grandfather actually had with the child before his contact was severed. Moreover, apparently the grandfather’s relationship with both of the biological parents was negative (or perceived as negative with respect to the child), since even his own son – Father – who did not live with Mother, did not want him to visit the child.

The following are the important issues in this case for a GAL assessing a grandparent visitation case. It would appear, first, that the litigation would have passed the initial demonstration that the grandparent could meet his or her burden of proof, such that the court would appoint a GAL to investigate. That said, it seems:

• Unmarried, competent parents, who live apart from one another, are presumed to be acting in the child’s interest when they deny a grandparent visits, but,
• One has to consider the impact on the parent-child relationship of any recommendation/order for grandparent-child ⁵⁷
• Grandparents who wish to visit against the parent’s wishes should have had a significant relationship with the child(ren) before contact was denied, similar to a de facto Alternately, they must show that, in the absence of their contact with the children, the latter will suffer significant harm (emphasis added). If such a pre-existing relationship did not exist, the grandparent would have to show their contact with the children is essential to prevent significant harm to the children. It is interesting to consider what the legal difference between significant and substantial harm would be, if any, since the SJC did not use the latter term. To this writer, significant harm means the children are not just upset or distressed at not being able to see their grandparent(s), but their stress is sufficient to impede or compromise their development in some way.

In Youmans v. Ramos, 429 Mass. 774 (1999), the de facto parenting case, the SJC noted that it was in the child’s interest “to be protected from the trauma caused by (the severing of) that relationship.” (Youmans, at 785). One could reasonably assume the need for some demonstration of trauma or potential trauma to reach the threshold of “significant harm.”

• A GAL should explore the before/after scenario, reviewing the developmental status of the children when they were seeing their grandparent(s) and their developmental path since the cessation of contact with grandparent(s). That means enough time has to have elapsed since the cessation of contacts for any behavioral changes to
• If the grandparents’ contacts prior to denial of contact were sporadic, it would seem impossible to support a claim of significant harm to the children. Without a pre-existing attachment, how could they argue that their contact was essential to forestall future harm, if the biological parents were competent?

This case begs comparison with Adoption of Hugo, 428 Mass. 219 (1998) in the context of state intervention cases. In that case, the SJC transferred the care of Hugo from one pre- adoptive parent, with whom he had lived for two years, to another pre-adoptive parent it

57 Packenham, (2004) at 444

deemed better able to meet the special needs of Hugo. It reasoned that the “trauma of his removal from the current (foster) home is outweighed by the long-term benefit of moving to a family better able to help him address his developmental challenges.” (Hugo, at 224).

Certainly, the first pre-adoptive parent, having cared for Hugo from ages two to four, could be said to have had a significant relationship with Hugo, and was likely a de facto parent, since DSS had placed the child there and supported Hugo’s adoption by that parent. The Court was willing to sever that significant bond, admitting there would likely be some trauma, for the potential gain it foresaw to Hugo.

Returning to Blixt, without a demonstration of significant harm, would a two-year, de facto parental relationship by a grandparent akin to Hugo’s relationship with his first pre-adoptive parent be considered sufficient to override a competent parent’s right to deny grandparental visitation? How much trauma or harm would be sufficient for the Court to order grandparent visitation over the protest of a competent biological parent in order to mitigate the effects of the trauma the Court foresaw due to the termination of such contact? Since Blixt referenced the de facto parenting case of Youmans v. Ramos, 429 Mass. 774 (1999), perhaps it used the relationship that Ramos, the maternal aunt, had with the child, Tamika, (Ramos raised her for several years, beginning in early childhood) as the yardstick against which to measure other parent-like relationships and the potential harm that might ensue from severing them.

ALLEN DEARBORN V. AMY DEAUSAULT & another

Massachusetts Appeals Court

61 Mass. App. Ct. 234 (2004) at: http://masscases.com/cases/app/61/61massappct234.html

Keywords: Grandparent visitation, visitation rights.

Background: Cohabiting until late 1998, the unmarried parents had a son, born in October 1995, and a daughter, born in July 1998. After separation, Father visited the children until summer 2001, when his substance abuse problems motivated Mother to stop his visits.

Pursuant to a modification, the court suspended his visits in October 2001 and awarded Mother sole legal and physical custody. In July 2002, Father was arrested and jailed for possession of an illegal substance. The paternal grandfather had a good relationship with Mother and the children until April 2002, and he saw the children frequently during each month, took them to local fairs, and twice on camping trips. He also babysat occasionally for the children upon Mother’s request. He provided them emotional support. The maternal grandparents, who lived nearby, also provided company and support for the children.

When Mother limited Father’s access due to his substance abuse, she asked his father (i.e. the paternal grandfather) to likewise limit Father’s contact with the children. Despite that, some contact continued through the paternal grandfather. The paternal grandfather and grandmother (they, too, were never married) were then placed in the position of having to control their son’s contact with the grandchildren, when those children were with them. In April 2002, the paternal grandfather, who had the children for the night, told Mother that Father was going to be coming by the house, but he would return the children beforehand. Mother and her fiancé drove to the paternal grandfather’s house and picked up the children. She believed Father’s visit was a violation of her understanding with the paternal grandfather.

The trial judge found that the children were happy and well-adjusted. Mother’s fiancé intended to adopt the children after his marriage to her. Father, who had never paid child support, had surrendered his parental rights, negotiating a plan with Mother in which his parents would maintain some contact with the children. The trial judge determined that the paternal grandfather had a “substantial, meaningful relationship with the children,”  (Dearborn, at 236), similar to that with the maternal grandparents, and important because of their Father’s absence/exclusion from their lives. The judge decided that Mother’s decision in April 2002 was an overreaction to the situation and “may cause them (children) emotional harm by denying them reasonable access to one who had been a consistent caregiver.” (Dearborn, at 236). The judge anticipated that this separation from the paternal grandfather “may harm their ability to form stable relationships.” (Dearborn, at 237). The judge questioned the “genuineness of the mother’s motives” in her exclusion of the paternal grandfather. He ordered one overnight visit with paternal grandfather per month, contingent on the Father not being present.

The Appeals Court took pains to cite the judge’s findings in some detail. They reasoned that, while he had couched his decision in the language of Blixt v Blixt, 437 Mass. 649 (2002), they determined that his findings were not enough to show that the importance of the paternal grandfather in the children’s lives could overcome the presumption that the custodial mother had the right to deny visitation in the child’s interests. Blixt stated that the custodial parent has a “fundamental liberty interest” to raise her own child in the ways she saw fit, and to protect them from “actual or potential harm.” (Blixt, at 655-56). Blixt further required that the grandparent show “that the failure to grant visitation will cause the children significant harm by adversely affecting (their) health, safety, or welfare.” (Blixt, at 658). There also has to be evidence of a “significant pre-existing relationship.” (Dearborn, at 237) or one in which there is “close bonding.” (Dearborn, at 238). However, there was no requirement that the relationship rise to the level of a de facto parent, just that the disruption of that connection would potentially cause significant harm to the children.

The Appeals Court decided that the instant relationship was a common grandparental one in which there was frequent contact, which “while meaningful and nurturing, is not the kind of relationship from which significant harm to the children can be inferred from disruption alone,” (Dearborn, at 238) particularly since the findings showed the children to be doing  very well. They did not consider the judge’s designation of Mother’s negative motivation as a factor in his decision, which, by itself, would not be enough to override the parent’s decision to stop contact. It reversed the trial court, but it allowed the paternal grandfather to re-file a motion within 30 days of receiving their decision, if he could show significant harm. In the final footnote (8), they said, “We also think it possible that had the judge been aware of the standard we have articulated, he might have appointed a guardian ad litem to evaluate the relationship between the grandfather and the children.” (Dearborn, at 238).

Comment: This case was heard on March 19, 2002 and decided by the trial court on May 26, 2002.Thus, at the time the trial judge published his decision, Blixt, the controlling case, had not yet been decided (until September 9, 2002). Blixt was not law in May 2002, although the

U.S. Supreme Court case of Troxel v. Granville, 530 U.S. 57 (2000) had been published.  While the trial judge pointed to the meaningful relationship between the children and their grandfather and the fact of potential harm, apparently that reasoning was insufficient, because he failed to show actual harm, since the children had been doing so well. For most of the time that they had done well, the paternal grandfather had been involved in their lives, according to the record. It is hard to understand this decision, since the visitation ended in April 2002 and the court heard the case just three months later, hardly enough time to show actual harm. The Court characterized his relationship as typical for grandparents, which also seemed to be a factor, even though they also said that this form of relationship did not have to rise to the level of a de facto parent.

The other aspect of the decision that was relevant was the Appeals Court suggestion that this  is the kind of case that could use the information gathered from a GAL. It raises a question of how does a GAL determine what is the normative kind of grandparent-grandchild relationship? Is there some data on how much time the “average” grandparent spends with the children or how close the children are to their grandparents? The Court seemed to know this answer, but it is not clear on what basis they came to that conclusion or on what basis a GAL would make some finding to a court. In the end, it seems to this writer that each grandparent- grandchild relationship is judged on its own merits and that any finding of how close or

“significant” this relationship is or what potential harm might ensue from its termination is case-specific. Like many other aspects of family law, the absence of any group data leaves decisions open to the “common-sense” and personal values of the court (in the context of precedent, of course), which is not to say that GALs do not have to cope with those same limitations.

Another aspect of this case suggests a broader idea. The court seems to be saying more often that the critical relationships in a child’s life – the one to which they will give the greatest weight – is that of the biological parents (or one in which a non-biological parent has fulfilled the same function, a de facto parent). Those relationships will receive far more judicial “credit” than those of extended family, including grandparents. Moreover, a parent’s decision to include or exclude whomever he or she wishes is within the parent’s liberty interest, the constitutional due process right, if you will, of the role. The Court has often couched its decisions in terms of the value of extended family and close social networks, such as in removal cases, but when it comes down to it, those are dispensable if a parent (reasonably?) decides to remove them from a child’s life, because the Court gives wide latitude toward a fit parent’s decisions. As noted in other cases, the balance seems to swing toward court or state intervention when it comes to the high probability or actuality of significant harm to the child.

DEFINITIONS: BEST INTERESTS, MODIFICATIONS, AND LEGAL CUSTODY

KATHY NANCE DELMOLINO v. JAMES S. NANCE

Massachusetts Appeals Court

14 Mass. App. Ct. 209 (1982) at: http://masscases.com/cases/app/14/14massappct209.html

Keywords: Divorce and Separation, Custody of child, Modification of judgment.

Background:, The parents were divorced on March 15, 1977. Mother was awarded legal and physical custody of Nicole, who was seven years old at the time of divorce, and Father had rights of visitation. Both parents subsequently remarried, Father in 1978 and Mother in 1980. They had a high conflict divorce and Mother filed several contempts against Father for failure to pay support. On February 12, 1979, Father filed a complaint for modification requesting custody of the daughter, but the issue was not marked up for a hearing. In August 1980, mother got a promotion that required her and her family to move to Ohio. When Father heard of this plan, he filed an emergency order that gave him temporary custody of Nicole for two weeks, but mother had already taken Nicole to Ohio, where Father was unable to locate her for a time. When he did locate her, he went to her hometown and removed her from a school bus and returned her to Massachusetts, where he obtained temporary custody pending the hearing on his complaint for modification. He also enrolled her in the Needham schools, the town in which he resided. Prior to removing Nicole from the Commonwealth, Mother did not seek the consent of the judge.

Mother then filed a complaint for modification asking permission to remove Nicole to Ohio and both issues were heard together. Subsequently, the judge ordered joint legal and physical custody of Nicole to both parents, but decided that Nicole would live with her Father during the school year and see her mother on various listed holidays, school breaks, and summer vacation. The judge made no decision on Mother’s modification motion, and Mother appealed.

Citing relevant precedent, the Court said that an original judgment (as when the court awarded custody to Mother) is presumed to be correct, and a judge must find a relevant change in circumstances, if he or she is to order a change of custody. The change must be “of such magnitude” that it will satisfy the controlling principle, that is, it is conducive to the welfare   of the child.” (Delmolino, at 211). The judge had made a dramatic change, in effect giving physical custody to Father. The trial court said that the obvious change in circumstances was the move to Ohio, but the trial judge’s findings in the record showed no evidence that he considered that issue. The trial judge’s memorandum was full of praise for each parent’s abilities, as well as those of the respective stepparents. There was no information in the record that Mother was unfit in any manner or that her second marriage was harmful to Nicole.

The Court then made reference to a GAL report, which the judge clearly relied upon to a large extent. The GAL noted that it was hard to foresee how another change in schools for Nicole (that is, back to Ohio after being in the Needham schools) would be in her best interest, particularly since she had been doing well in the Needham schools, while living with Father and stepmother. The GAL report, which the judge cited, had noted that the child had done well in whatever school she had been enrolled, and that included the Ohio school in which she started the academic year. She had also been doing well with each family and community before the temporary order for the change of custody to Father. The GAL made recommendations that, with one exception, the judge adopted. However, the GAL failed to consider the law that was relevant to a change of custody (emphasis added).⁶⁰ The GAL determined that “the paramount issue here, (is) namely with which parent as the principal custodian can the best interests and welfare of the child be best served.” (Delmolino, at 213). The Appeals Court said that the probate court had already decided that issue at the time of divorce and had awarded custody to Mother. The Court then stated, “In sum, there is nothing in the record that shows any relevant change in circumstances that would justify the transfer of custody ordered in this case. The fact that the mother did not seek permission to remove the child from the Commonwealth does not give the judge discretion to order a change in custody solely because of the failure to obtain consent. Hale v. Hale, 12 Mass. App. Ct. 812, 816 n.5 (1981).” (Delmolino, at 214). The Court reversed the decision to transfer custody and indicated to Mother, that if she still wished to remove Nicole from the state, she must file a complaint for modification to that effect.

Comment: Probably the most important aspect of this case is its clear directive, both to the   trial court and to the GAL, that it is critical to know under what standard the evaluation is being performed. Thus, the types of questions and fact-finding will be focused on those issues pertinent to the standard. This case was not a typical, first-instance custody dispute, but a modification of an already settled issue of custody. That meant, in more modern parlance, there needed to be a determination of a “material change of circumstances” such that, for the sake of the welfare of the child, a change in the original order, which otherwise was “presumed to be correct,” was warranted. It is important to know the law and the standards, whether the question is custody, parenting time, removal, etc. While “best interest” is an overriding concern of any assessment, including a modification, the standard is really the threshold question that the court has to answer. The problem for a GAL is to know by what measure can he/she determine whether that threshold has been reached. How does one define “substantial” or “material?” For that matter, GALs have no more ability to determine “best interest” than do judges, a fact of life that the court fully understands. All one can do is assess the impact of   any change on the child and inform the court about that. It seems that the best practice, as is useful in removal cases, is to lay out the options in the opinion/recommendation section contingent on whether the court finds there has been a substantial change in circumstances or not, assuming recommendations are permitted in the order.

60 Henry Bock, Jr. noted that it was “the ultimate responsibility of the Court to apply the law and identify the legal basis for its decision.”

CUSTODY OF KALI.

Supreme Judicial Court of Massachusetts

439 Mass. 834 (2003) at: http://masscases.com/cases/sjc/439/439mass834.html

Keywords: Minor, Parent and Child, Child Custody.

Background: This case involved a custody dispute between unmarried parents. They had lived together in a Franklin County town from 1995 and had Kali in January 1998. The relationship then deteriorated because of conflict over Kali’s care and the demanding work schedule of Father. The parents separated and Mother took Kali and went to live with her mother in Montague. After a brief reconciliation, they again separated and Mother moved out, this time  to Ledyard, CT, near where she had a job in Groton, CT. The company had a plant in Springfield, and she planned to return to the Springfield area. By agreement, Kali lived with Father during the week and with Mother on weekends. Kali was in daycare during the week from 5:45 AM to between 4:00 and 5:00 PM, in a center that Mother selected. Father  awakened Kali at 5:00 AM to get her to the center by 5:45. He was a mason and traveled in Massachusetts and, occasionally, to Vermont, for his job. On the weekends, Kali visited Mother in Connecticut or Mother returned to Massachusetts to spend time with Kali either in Montague or at Father’s home. As Father and Mother still maintained their relationship, the former often joined Kali and Mother on weekends. In June, 2000, the parents permanently ended their relationship. The Father petitioned the court to establish paternity and for custody of Kali.

In August 2000, the court ordered a temporary alternating week schedule and temporary shared physical and legal custody, with Kali to be in day care during the week, as each parent worked full-time. The court appointed a guardian ad litem to observe Kali in each home.

Thereafter, the GAL recommended shared physical custody, with Kali’s primary residence to be with Father. The trial occurred in January 2002. The following July, the judge ordered that Mother have legal custody and that the parents share the physical care of Kali, in that Kali would being with Father for three weekends/month during the school year and for most of the summer, while spending every other weekend during the summer with Mother.

The judge based his decision “on a number of findings, including, inter alia, that the mother and the father are not able to make shared decisions relative to their daughter’s welfare, and joint legal custody would not be in Kali’s interest;⁶¹ that the mother provides well for Kali’s physical needs, is concerned with Kali’s health and educational issues, and is the one who “preoccupies herself” with Kali’s care regarding clothing, hygiene, doctor’s appointments, and child care providers; that the father, while clearly fond of his daughter and engaged in a positive relationship with her, does not appear to be “overly concerned” about Kali’s physical

61  “The parties do not contest the judge’s conclusion that joint legal custody was not appropriate in light of the   past inability of the parents to communicate productively about and jointly work together in making major decisions concerning Kali’s well-being. Rolde v. Rolde, 12 Mass.App.Ct. 398, 404-405 (1981). See G.L. c. 209C,

• 10 (a ).” (Kali, at 838).

needs “beyond the basics,” and has “minimized” her medical needs and her need for medical care in general; that the Father works long hours often involving overtime, resulting in Kali’s spending most of her time during the week in day care; that the mother has more flexible hours and is able to spend more time with Kali during the weekdays; that the mother is more “attuned” to Kali’s medical, educational, and daily needs and is better able to provide for Kali’s welfare and physical needs during the week; that the father is more “attuned” to many of the activities that he and Kali can pursue together when time allows because of his work schedule and her school do not interfere; and that it is important that Kali be able to spend as much time as possible with her father on weekends, holidays, and during school vacations to continue to foster their close and positive relationship.” (Kali, at 837-38)

Father appealed based on three issues. The first was that the judge had a pro-motherhood gender bias, which the SJC rejected. Second, Father said the standard should have been a “material change in circumstances (G.L. 209C, §20) instead of G.L. 209C §10 (a). The latter posits “best interest of the child” as the standard and requires three tests of that standard, including the relationship between the child and the primary caregiver, where the child lived for the six months prior to filing, and whether either parent had established a” personal and parental relationship” and “exercised parental responsibility” over the child. The Court affirmed that mother had never relinquished care or custody of Kali and that the trial had been held under G.L. 209C. § 10 (a).

In its decision, the SJC spent some time reviewing the details of the “best interest” standard and its relationship to the three tests mentioned above. This is included in its entirety because of the historical detail. They wrote:

In custody matters, the touchstone inquiry of what is “best for the child” is firmly rooted in American history, dating back to the Nineteenth Century. See generally Mercer, A Content Analysis of Judicial Decision-Making–How Judges Use the Primary Caretaker Standard to Make a Custody Determination, 5 Wm. & Mary J. of Women & the L. 1, 13-32 (1998) (describing evolution of Anglo-American jurisprudence since Seventeenth Century). This legal principle replaced the notion that children were the property of their parents, and instructed courts to view   children as individuals with interests independent of their parents. See id. at 21-29. The “best interests” standard appeared in our case law at least as early as 1865, in Wardwell v. Wardwell, 91 Mass. 518, 9 Allen 518, 522 (1865), in which the court held that a judge should not follow a Father’s wish regarding the guardianship of his son if custody by the proposed guardian would not be in the child’s “best interests.”   It has been adhered to ever since. See, e.g., Blixt v. Blixt, 437 Mass. 649, 657 (2002) (best interests standard “has long been used in Massachusetts to decide issues of custody and visitation”); Yannas v. Frondistou-Yannas, 395 Mass. 704, 710 (1985) (“best interests of the children always remain the paramount concern”); Surrender of Minor Children, 344 Mass. 230, 234 (1962), quoting Erickson v. Raspberry, 320 Mass. 333, 335 (1946) (“most fundamental [principle] is that the paramount issue is the welfare of the child”); DeFerrari v. DeFerrari, 220 Mass. 38, 41 (1914) (custody award is subject to revision “as the best interests of the child may demand”)…

In spite of its widespread use as an appropriate standard for custody determinations, the “best interests of the child” formulation has been criticized by a number of commentators, who contend that the open-endedness of the standard leads either to   an inconsistency of results or to the systematic imposition by courts of unnamed prejudices regarding what outcomes represent a child’s best interests. See, e.g., Crippen, Stumbling Beyond Best Interests of the Child: Reexamining Child Custody Standard-Setting in the Wake of Minnesota’s Four Year Experiment with the Primary Caretaker Preference, 75 Minn. L. Rev. 427, 499-500 (1990) (best interests standard “risks unwise results, stimulates litigation, permits manipulation and abuse, and allows a level of judicial discretion that is difficult to reconcile with an historic commitment to the rule of law” [footnotes omitted]); Elster, Solomonic Judgments: Against the Best Interest of the Child, 54 U. Chi. L. Rev. 1, 16 (1987) (“best interest principle is usually indeterminate when both parents pass the threshold of absolute fitness”); Glendon, Fixed Rules and Discretion in Contemporary Family Law and Succession Law, 60 Tul. L. Rev. 1165, 1181 (1986) (“’best interests’ standard is a prime example of the futility of attempting to achieve perfect, individualized justice by reposing discretion in a judge… Its vagueness provides maximum incentive to those who are inclined to wrangle over custody”).

As a remedy for the perceived vagueness in the standard and for its apparent amenability to inconsistent application, legislatures, courts, and commentators have adopted or proposed a number of constraints on judicial discretion or, in the alternative, specific criteria that a judge must take into account when ruling on the issue of custody. Some of these constraints have come in the form of irrebuttable presumptions, see, e.g., Garska v. McCoy, 167 W. Va. 59, 69, 70 (1981) (primary caretaker proving to be fit parent of child of “tender years” must be awarded custody); others have come in the form of legislatively required considerations. See, e.g., Or. Rev. Stat. § 107.137 (2001).

These efforts also reflect the view that it is in the “best interests of the child” to preserve the current placement with a parent, if it is a satisfactory one, and that stability and continuity with the child’s primary caregiver is itself an important factor in a child’s successful upbringing. See, e.g., Catania, supra at 1260-1261 (describing primary caretaker presumption as  “fair,” “gender-neutral,” “creating a legal  norm that encourages nurturing behavior,” and “serving as a concrete model for the kind of fiduciary conduct that members of a reordering family should continue to expect   from one another”). Roen v. Roen, 438 N.W.2d 170, 174 (N.D.1989) (“Continuity in  a child’s relationship with the closest, nurturing parent is also a very important aspect of stability”); Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (“considerable weight should be given to which parent has been the child’s primary caregiver”). Echoing this view, the American Law Institute’s Principles of the Law of Family Dissolution (2002) (ALI Principles) state that a judge “should” allocate custody in proportion to the amount of time each parent previously spent providing care, subject to eight   listed exceptions. ALI Principles, supra at § 2.08(1).⁶²

62 Section 2.08(1) of the American Law Institute’s Principles of the Law of Family Dissolution (2002) (ALI Principles) states, in pertinent part, that custody should be awarded “so that the proportion of custodial time the General Laws c. 209C, § 10 (a), which was enacted in 1986, reflects this trend and is consistent with the more recently adopted ALI Principles.⁶³ The statute gives direction to the judge’s consideration of a child’s “best interests” by “evincing a general intent on the part of the Legislature to maintain the bonds between the child and her caregiver.” Custody of Zia, 50 Mass. App. Ct. 237, 244 (2000). It cautions against rearranging a child’s living arrangements in an attempt to achieve some optimum from all the available permutations and combinations of custody and visitation, when it is generally wiser and safer not to meddle in arrangements that are already serving the child’s needs. If the parenting arrangement in which a child has lived is satisfactory and is reasonably capable of preservation, it is ordinarily in the child’s best interests to maintain that arrangement, and contrary to the child’s best interest to disrupt it. Stability is itself of enormous benefit to a child, and any unnecessary tampering with the status quo simply increases the risk of harm to the child.

The required considerations of the second paragraph of G.L. c. 209C, § 10 (a), neither replace the “best interests of the child” standard nor limit the factors that a judge may consider in determining what custodial arrangements are in the

best interests of the child. See Custody of Zia, supra at 243-244 (“judge may   consider any factors found pertinent to [child’s best] interests in the circumstances [and] judge is to identify and weigh those factors”). Nor do they create a   presumption that the caretaker with whom the child is primarily residing will be awarded permanent custody. See id. at 242-243. There may be serious shortcomings in the primary caretaker’s parenting to date, or evidence that a previously exemplary caretaker will not be able to continue providing adequate care. Or, even assuming  that the primary caretaker has been providing good care, and all indications are that that parent would continue to do so, it is possible that the other parent may offer  some extraordinary advantage to the child that makes the disruption in the child’s life worth the risk.⁶⁴ In most cases, however, if the child has been living with one parent for some time, the child’s needs are being adequately met under that parent’s care,  and that parent is capable of continuing to care for the child, it is not in the child’s  best interests to disrupt that successful arrangement. Rather, it is in the child’s best interests to preserve it. Belief that the other parent might be a little better in some child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation or … before the filing of the action.” The exceptions to this guideline are (a) that the award of custody should align with any “uniform rule of statewide application”; (b) that the award should respect the “firm and reasonable preferences” of a child of a certain (undefined) age; (c) that siblings should remain together if “necessary to their welfare”; (d) that the award should reflect any “gross disparity” in the child’s attachment to the parents or in the parents’ abilities to “meet the child’s needs”; (e) that    the award should reflect any prior agreement between the parties; (f) that the award should not create an “extremely impractical” custodial situation; (g) that the award should address a parent’s decision to relocate to a distance away; and (h) that the award should “avoid substantial and almost certain harm to the child.”

63 General Laws c. 209C (concerning nonmarital children) was a new chapter of the General Laws inserted by

St.1986, c. 310, § 16.

64 Ed. Note: This last issue is basically the reasoning at the foundation of the decision in Adoption of Hugo, 428 Mass. 219 (1998) in a probate/family court context.

areas ought not suffice to disrupt a child’s satisfactory home life with the caretaker parent.

For these reasons, the three requirements set forth in § 10 (a), second par., must be carefully considered by the judge in reaching a decision regarding custody.

Moreover, merely considering these requirements at the end stages of the custody proceedings is not enough. In order to provide a child with the benefits of stability and continuity, these principles also need to be applied during the pendency of the proceedings. See ALI Principles, supra at § 2.08(1) (custody decisions should reflect each parent’s performance of caretaking functions before the filing of the action”).

When the child has been living with one parent, the judge’s initial inquiry on any motion for a temporary order of custody must be whether there would be any harm to the child in maintaining that status quo pending the outcome of the case. By definition, the significant benefits of maintaining the status quo, and the option of preserving those benefits, may be irreparably lost if the status quo is disrupted at the outset of the proceedings.” (Kali, at 840-843).

The SJC affirmed that the trial judge found that both parents had a close relationship with Kali, that each had exercised parental responsibility for her, and that she had spent   regular time with each of them. As to the question of whether the judge should have preserved to the extent possible the relationship between Kali and her primary caregiver, the SJC said that the judge’s temporary order that shuttled Kali between her parents every other week effectively altered what had appeared to be a stable situation in which Kali   had spent most of her life in the care of Father. Because the judge made that temporary order so that he could compare the two homes, he was then left with the task of making specific comparisons of the parties’ respective parenting and relationship with Kali.

In a footnote (12), the SJC stated that one consideration of the judge’s decision in ordering Kali to be with Father on weekends and summers was that her care would not be limited by his need to work long hours. They said, “We would be troubled if the judge’s award of primary custody between two working parents was based solely on the minor differences in the amount of time the child would spend in day care. Day care is a fact of life in such circumstances and ought not be used as the measure of a parent’s ability or commitment to provide a protective, healthy, and positive environment for the child. We are satisfied here that the judge considered Kali’s respective day care arrangements and the work schedules of her parents in the context of balancing many factors to reach a conclusion as to what is in Kali’s best interests.” (Kali, at 846).

In the last footnote (13), the SJC expressed its concern, as recognized by American Law Institute standards, about the risk of a judge’s value judgments affecting outcomes. They commented, “Indeed, this case illustrates how subjective value judgments affect a judge’s assessment of the child’s best interests. See ALI Principles, supra at § 2.08 comment b (approach to determining child’s best interests “draws the court into comparisons between parenting styles and values that are matters of parental autonomy not appropriate for judicial resolution”) and § 2.02 comment c (“When the only guidance for the court is what best serves the child’s interests, the court must rely on its own value judgments, or upon experts who have their own theories of what is good for children and what is effective parenting”). Beyond the comparison of the day care providers and schedules, the judge was critical of the father  because he “does not appear to be overly concerned about [Kali’s] physical needs beyond the basics,” whereas the mother “preoccupies herself with [Kali’s] care regarding clothing, hygiene, doctor’s appointments and childcare providers.” To some, it would be preferable that  a parent stay focused on “the basics” and not become “overly concerned” about things beyond those “basics,” and some might think it a disadvantage to have a parent “preoccupied” with   the child’s clothes and cleanliness. Even on the issue of medical care, where the judge viewed Mother as “more attuned,” the differences between the two parents reflected justifiably different attitudes. Keeping the focus on whether the child’s primary caretaker has provided  and can continue to provide satisfactory care, rather than engaging in an inherently subjective assessment of which parent will provide what the judge views as optimal care, is part of the purpose behind § 2.08(1) of the ALI Principles and the second paragraph of G.L. c. 209C, §  10 (a).” (Kali, at 847).

Leaving aside the legal wisdom of the judge’s temporary order giving the parties shared physical custody (from which Father did not appeal), the SJC affirmed the trial court’s decision, stating the judge had weighed all the factors to provide a permanent custody arrangement that met her best interests, and that he did not abuse his discretion in so doing.

Comment: This is an important case to read in its entirety, since it has the long discussion of the history of the “best interest” standard. The Court specifically stated it was in a child’s best interest to reside with a parent who was the “primary caretaker,” unless there were factors contradicting that solution. In Adoption of Hugo, 429 Mass. 219 (1998), a state intervention case in which none of the parties was a biological parent, the Court decided Hugo’s interest was served by transferring him from a foster family to whom he was attached to an out-of- state extended family member, who could better meet his needs. It is interesting to note, as referenced in footnote 50 herein, that the Court applied a different standard in Adoption of Hugo, where it held that a child’s best interest was served by removal from a foster family with whom the child had a strong bond to be placed with out-of-state family members. Hugo is distinguished from Kali because Hugo is a state intervention case, in which neither the foster parents nor the out-of-state family members had the status or standing of a biological parent.

Kali clearly indicates that the legal treatment of unmarried parents in custody determinations is different to that of married parents in divorce contests over custody. G.L. c. 208 § 31 designates “the rights of the parents shall, in the absence of misconduct, be held to be equal…,” while in G.L. c. 209C § 10 (a), (children born out of wedlock), it states that the  court shall “to the extent possible, preserve the relationship between the child and the primary caretaker parent…” and “consider where and with who the child has resided for the past six months immediately preceding proceedings…” In §10 (b) it then states, “Prior to, or in the absence of an adjudication or voluntary acknowledgement of paternity, the mother shall have custody of the child born out of wedlock.” Kali cautions about the intrusion of value judgments into the relative weights one gives to the various factors. However, it also suggests that a primary caregiver who has given “satisfactory care” over time should be of greater value under our law (and ALI principles) than a non-custodial parent who might be able to provide better or even “optimal” care. Without so designating, this might rise to the level of a rebuttable presumption. However, Custody of Zia, 50 Mass. App. Ct. 237 (2000), informs GALs that the quality of that parenting by the primary caretaker is a critical consideration.

One footnote in Kali suggested that the guardian ad litem had made a comparison of the parties, as ordered by the court, and had recommended custody to Father, which the court ignored. The SJC opinion suggested that facts existed for the court to have determined that Father had been the primary caretaker before it ordered shared temporary custody. That determination itself would have shortened the whole legal process and not have subjected Kali to the back and forth of shared physical custody for two years. Packenham (2004) noted, “Of particular note is the nod of approval by the SJC to the controversial ALI Principles of Law of Family Dissolution, which advocates that the trial court should make custody determinations that allocate proportionally and consider the time a parent spends with a child prior to dissolution.” (Packenham, at 476).

Of further interest was the SJC’s caution to the court not to overvalue minor differences that a child would spend in day care under one parent’s care or the other, because day care is such a commonplace service that parents use. This is often an argument asserted by non-custodial parents, who seek either custody or increased parenting time. They typically claim that their own care of the child is preferable to that of day care personnel. Kali would suggest that, all other factors being equal, the fact that the non-custodial parent has more time available to care for a child, who would otherwise be in day care due to the primary parent’s work schedule, would not be supportable grounds for a change in custody. This would appear to be one issue of which a GAL should be mindful, if and when he/she is making recommendations regarding custody. On the other hand, might that scenario be grounds for a modification of the parenting plan without a change in legal custody? For example, a common stipulation one encounters in domestic relations cases occurs where the non-residential parent has the “right of first refusal” in the event the residential parent needs substitute child-care. If that “right” means a few hours after school in extended day care or a babysitter, it can create instability in a parenting plan. Conversely, overnight care by a third party may be more appropriate for the exercise of this “right,”   as it provides care for the child by a biological parent and   a  better sense of security.

GAL ISSUES

SANDRA A. GILMORE V. JEROLD P.  GILMORE

Supreme Judicial Court of Massachusetts

369 Mass. 598 (1976) at: http://masscases.com/cases/sjc/369/369mass598.html

Keywords: Divorce, Custody of child, Guardian ad litem, Investigator, Cross-examination.

Background: This decision does not provide much background information in its report. It noted that Mother filed for divorce in April 1973 and Father cross-filed in December 1973. In March 1974, a divorce was granted to each of them for cruel and abusive treatment.

Custody of the three minor children was awarded to Father. Mother appealed on several grounds, but most relevant was her claim that the custody award should be set aside, because the trial judge prevented her from cross-examining the guardian ad litem who investigated the family and filed a report, upon which the judge relied in his findings. The SJC held that the trial judge was in error in denying examination of the GAL/investigator, especially since the judge relied on the report. The SJC said, “We believe that, consistent with the principle of fundamental fairness, cross-examination should have been permitted.” (Gilmore, at 601).

The decision cited G.L. c. 215 §56A, which allows a judge to appoint a guardian ad litem to investigate and report, noting, “…such report shall be open to inspection to all the parties in such proceedings or their attorneys.” (Gilmore, at 601). The SJC noted that previous cases provided a foundation for a judge to use the services of a GAL, but no case or Ch. 215 §56A addressed whether the GAL must be available for cross-examination. During the trial, many of the collaterals whose information was in the GAL report did testify. However, the judge relied on the findings in the report in his determination of custody, he but denied Mother the right to cross-examine the GAL/investigator. The SJC stated:

In a custody proceeding, a judge makes a determination as to what is in the best interests of the child on the basis of facts presented at trial as well as facts gathered by the court-appointed investigators. The need for accurate, objective information is of foremost importance in this process. In order to determine adequately the reliability and accuracy of a report, we believe that, as a matter of sound judicial policy, the parties should have the opportunity to rebut the report, including the right to cross-examine the investigator. To promote a fair fact-finding process, cross- examination of the investigator should be permitted, subject to the rules of evidence, so that the credibility, bias, or prejudice of the investigator may be tested and the weight to be given to his report may be determined. This rule should prevail whether or not the parties consent to the investigation. (Gilmore, at 604-05).

The SJC then remanded the case to the trial court for a new hearing on custody, although it did not vacate the prior custody order, leaving that to the discretion of the judge.

Comment: Gilmore is the case most often cited as the foundation for having the GAL as a witness at trial. This writer has heard many times over the years that one “cannot cross- examine a report.” It reminds any GAL that he or she needs to write the report with the expectation of cross-examination, even though the chances of trial are small. It also indirectly suggests that the GAL should write the report with the expectation that all parties will read it, including, and especially, the litigant/parents themselves. Aside from the need to be accurate in the report, it is also essential for the GAL to consider the audience in the way he or she makes statements and to avoid doing (psychological) harm, unless no better way exists to report relevant and essential facts

DE FACTO PARENTING

C.C. v. A.B. & another

Supreme Judicial Court of Massachusetts

406 Mass. 679 (1990) at: http://masscases.com/cases/sjc/406/406mass679.html

Keywords: Paternity, Parent and Child, Right to visit illegitimate child.

Background: This case is very similar to the U.S. Supreme Court case of Michael H. v.   Gerald D., 109 S. Ct. 2333 (1989). Here, C.C. (putative Father) and A.B. (biological Mother) lived together, conceived, and had a child, a girl, during that period of cohabitation. At that time A.B. was married to but separated from her husband, although they never divorced. After the child was born in May 1986, C.C. spent much time as a caretaker. The child was also baptized in C.C.’s religion. The probate court case began in March 1987. A.B. had, by then, reconciled with her husband. As the case report stated:

The plaintiff’s name is listed as “Father” on the child’s birth certificate and on the child’s baptismal record. The child bears the plaintiff’s name. The mother has admitted that the plaintiff may be the Father of the child. After the child’s birth, the plaintiff, the mother, and the child lived together. The plaintiff has indicated, both by his actions and his words that he has an interest in continuing his relationship with the child. On this record, there is sufficient evidence of a substantial parent-child relationship between the plaintiff and the child to allow the plaintiff to proceed with his paternity action.” (C.C., at 689)…. Accordingly, in cases such as this, the Probate Court must hold a preliminary hearing to determine the extent of the relationship between the putative Father and the child. This is, in its nature, a fact-based question. The court must look at the relationship as a whole and consider emotional bonds, economic support, custody of the child, the extent of personal association, the commitment of the putative Father to attending to the child’s needs, the consistency   of the putative Father’s expressed interest, the child’s name, the names listed on the birth certificate, and any other factors which bear on the nature of the alleged parent-child relationship. (C.C., at 690, emphasis added).

The decision reviewed the history of how, first, England and then Massachusetts viewed illegitimacy. It noted that there was a presumption that a child born of a married couple was “legitimate,” in that he or she was assumed to be the legal product of the marriage, absent several very clear impediments to the husband’s biological fatherhood (such as being away around the time of conception). When those obstacles to fatherhood did not exist, the highest level of proof (i.e. beyond a reasonable doubt) was necessary for a putative Father to rebut   that presumption, because of the state’s compelling interest in protecting the sanctity of the marriage and family. However, over time, women were legally able to seek determination of paternity and child support from men who fathered their children out of wedlock, and the state also was able independently to seek paternity determinations and child support from such

men. The court determined that fairness required that putative fathers have a similar right to have paternity established in situations where Mother was married at the time, if that putative Father could show a prior substantial relationship to the child. Given the issues in this case,  the circumstances of the child’s birth was no surprise to A.B.’s husband, and if C.C. could show, by clear and convincing evidence (lowering the reasonable doubt standard of the past), proof of a substantial relationship with the child, he would be able to move forward legally with his petition to be adjudicated the child’s Father and have a continuing relationship with the child. As the SJC stated, “The existence of a substantial parent-child relationship is, in our view, the controlling factor in determining whether this plaintiff may pursue his claim.” (C.C, at 689).

The dissent based its disagreement on the above-mentioned U.S. Supreme Court case of Michael H. and quoted liberally from Justice’s Scalia’s majority opinion. It claimed that the majority in this case based its reasoning on social policy grounds, not legal precedent or the intent of the legislature in its enactment of General Laws c. 209C (1988 ed.), which provided for the rights of children born to parents who are not married to each other.

Comment: This case indirectly represents one of the early building blocks of the concept of de facto parenting. It does so by providing initial “building blocks” for the idea that a parent (biological-putative or unrelated) can have a “substantial relationship” with a child that warrants some protection by the court. The unique fact pattern in this case was that the birth was not the product of a casual relationship between the biological parents, but one in which they lived together during and after the child was born, and in which the putative Father had been a significant caregiver to the child.⁵⁸ It was on the basis of the prior “substantial” relationship, not just the possibility of biological parenthood, that the SJC allowed C.C. to proceed with his case to be a legal part of the child’s life. The SJC did not analyze the facts from the perspective of the child, and whatever attachment she might have had to the putative Father was not mentioned. In fact, the focus is so parent-oriented that the decision referred to the gender of the child just once.

The important issue for GALs is the initial definitions of “substantial” in determining   whether a parent was involved enough to warrant the possible court permission of an   ongoing relationship against the wishes of the biological or primary parent. From the writer’s perspective the de facto parent case of Youmans v. Ramos 429 Mass. 774 (1999) has its beginnings in C.C. v. A.B. Important also are the factors the SJC delineated as critical in analyzing the nature of the role a parent might play. Together, they provide a cognitive map that the GAL can use to investigate the facts in order to assess the quality as well as quantity of parenting.

58 Of interest was the C.C.’s period of parenting was less than a year, whereas in Jones (p. 95 above), the grandparents had taken care of their grandchild for two years. Contrast these cases with Youmans (next page), where the aunt cared for her niece for eleven years. All of these apparently fit within the broad definition of a significant parent (or parent-like) – child relationship. Each case has different fact patterns, since in Jones, there was evidence of Mother’s incompetence as a parent and the outcome might have changed if she had been a capable and interested parent, as Father was in Youmans.

DONALD R. YOUMANS vs. CYNTHIA M. RAMOS.

Supreme Judicial Court of Massachusetts

429 Mass. 774 (1999) at: http://masscases.com/cases/sjc/429/429mass774.html

Keywords: Guardian. Adoption, Visitation rights, Minor, Visitation rights, Parent and child,

De facto parent.

Background: This was the first of two cases on the issue of de facto parenting decided within a week of each other. The SJC held that an aunt, Cynthia Ramos, who had a long and nurturing relationship with her eleven-year old niece, could have visitation with that child when the biological Father, Donald Youmans, was opposed to it. Tamika Youmans was a twin, who was born in 1986 and whose sister was sickly from birth. After Tamika and her sister’s birth, biological Mother moved to Massachusetts and lived next to her sister, Ramos, who cared for Tamika while Mother took care of the ill twin sister. Tamika had lived most of her life with her aunt, who had previously been appointed as her permanent guardian. The twin sister died before age two. Mother then died in 1991 when Tamika was five years old, with the aunt becoming Tamika’s primary caretaker. Father had had never lived in Massachusetts with Tamika.

According to the aunt’s undisputed testimony, Tamika learned to walk, to talk, and to read in her care; the aunt arranged for Tamika’s medical care; accompanied her to all of her appointments; oversaw her progress at school; took her to church every Sunday; and arranged for and participated in all of her extracurricular activities.

Tamika refers to the aunt as her “mom,” and to the aunt’s biological children as her “brothers” and “sisters.” The aunt testified that she has cared for Tamika “like a child of my own.” She was in every sense Tamika’s de facto parent.⁵⁹ (Youmans, at 776).

The case then details a very complex history involving Father’s initial financial support of the children, his filing a motion for custody when he learned of Mother’s death, and his then not coming forward to push for custody. He was in the armed services and was stationed abroad, including serving in the first Gulf war. He was discharged from the service in 1995, married a German national, and moved to Georgia. During all this time, he paid child support to the aunt, but made no further attempts to seek custody. Tamika visited him in Georgia several times between late 1994 and mid-1997. In March 1997, Father filed his second petition to obtain custody of Tamika and to terminate the guardianship of the aunt. The aunt opposed Father’s motion, but she did not file for visitation if the court awarded custody to Father. In

59 “We use the terms “legal parent” and “de facto parent” proposed by the Reporters on the ALI Principles of the Law of Family Dissolution. See ALI Principles of the Law of Family Dissolution § 2.03(1) (Tent. Draft No. 3    Part 1 1998) (approved at annual meeting May, 1998). The definition of “de facto parent ” states in relevant part:

“A de facto parent is an adult, not the child’s legal parent, who for a period that is significant in light of the child’s age, developmental level, and other circumstances,

“(i) has resided with the child, and

“(ii) for reasons primarily other than financial compensation, and with the consent of a legal parent to the formation of a de facto parent relationship . . . regularly has performed

“(I) a majority of the caretaking functions for the child.” (Footnote 3, at 776).

the interim period before trial, the court allowed Tamika’s visitation (in conjunction with a stipulation filed by the parties) with Father in Georgia for April and for summer vacation, and regular telephone contact with him when Tamika was with her aunt in Massachusetts. The trial occurred in July 1997.

On August 29, 1997, the judge issued his findings of fact, conclusions of law, and judgment. He found that Father had maintained a “continuing presence” in Tamika’s life, had provided financial support for her, and over the years had telephoned, written to, and periodically visited Tamika. He made further findings concerning Father’s financial well-being, his living arrangements in Georgia, his planned second marriage, and his planned child care and other arrangements for Tamika. The judge found that there was no evidence that the Father “is unfit to assume full custodial responsibilities of Tamika.” The judge vacated the aunt’s appointment as permanent guardian of Tamika. However, he found that it was in Tamika’s best interests to maintain contact with the aunt and the aunt’s family, and, “in light of the role of caretaker and guardian that [the aunt] has played in the first eleven years of Tamika’s life,” ordered “liberal visitation and contact” between Tamika and her aunt. He ordered Father to assume the costs of visitation because Father’s financial resources “greatly exceed” those of the aunt. (Youmans, at 779)

Father appealed, claiming that the aunt was a “nonparent” and, as such, the judge had no authority to order the visitation, and the order violated his liberty interest to function as a parent in ways that he saw fit without state interference.

The SJC found that Father had agreed to allow Ramos to care for his daughter for eleven   years and had paid child support to Ramos to do so. It held that Ramos had become a de facto parent in that she met the ALI criteria for such a role and that Tamika had developed a daughter-mother relationship with her aunt, because of all the parenting responsibilities   Ramos had undertaken all those years. It noted that awarding custody to Father would have,   by itself, ended the only parental bond Tamika had ever experienced, so it affirmed the   judge’s decision to order visitation with Ramos since “‘the welfare of the child is the controlling consideration in custody proceedings,” citing Stevens v. Stevens, 337 Mass. 625, 677 (1958). The court said that the potential termination of the mother-daughter relationship was no fault of Ramos, and the child deserved “to be protected from the trauma caused by that relationship.” (Youmans, at 785). The Court cited earlier cases in which they noted the vulnerability of a child whose bonds with his or her de facto parent are severed, and comment that competent mental health professionals cannot always predict what harm might ensue from such separations.

The dissent objected to the majority opinion by suggesting that the bond between Tamika and her aunt was akin to that of a child and any other third-party caregiver, such as a nanny.

However, the majority found that there was “a world of difference” between the relationship of Tamika to her aunt and that of a nanny. As to Father’s objection to the visitation order, the SJC supported the judge’s decision, noting that the judge had looked at the history of visitation when Ramos was the active parent, reviewed what agreements the parties made  over visitation, considered Father’s lack of objection to Tamika seeing her aunt, and had interviewed Tamika herself. The judge then fashioned a parenting plan that was similar to the one Father had, only this time the aunt would have visitation while Father had custody.

The SJC then stated, “The best interests standard presents the trial judge “with a classic example of a discretionary decision.” Adoption of a Minor (No. 2), 367 Mass. 684, 688 (1975). “Standards of mathematical precision are neither possible nor desirable in this field; much must be left to the trial judge’s experience and judgment. Underlying each case are predictions as to the possible future development of a child, and these are beyond truly accurate forecast.” Petition of the New England Home for Little Wanderers to Dispense with Consent to Adoption, 367 Mass. 631, 646 (1975). The dissent essentially argued that there was no statutory authority to award visitation to third parties and that the court had not been willing previously to recognize a third party’s right to a continuing relationship with a child, although other states had statutes broad enough to encompass that issue. The dissent said that this issue begged for legislative action before the court should make law on its own.

Comment: This case is important for GALs since the question of whether a third-party-adult had been acting as a parent for a child could be part of future assessments. It is useful to have the ALI definition of a de facto parent, since that is what the Court used in this case to determine whether Ramos fit that role. The important qualities included performing a majority of caretaking functions for a significant period of the child’s life (particularly early   childhood), without expectation of remuneration, and with the consent of the legal parent. The case becomes entwined later with grandparent visitation issues, since after Blixt v. Blixt, 437 Mass. 649 (2002), the Court will use Youmans to look at whether a grandparental relationship would be similar a de facto parent relationship, which, if severed, would cause significant  harm to the child. In Youmans, the Court determined that ending the aunt’s relationship with Tamika would cause significant harm to the child, simply because Tamika and Ramos had experienced a daughter-mother relationship from Tamika’s earliest life, and it wanted to  protect Tamika from the vulnerability inherent in the ending of such a close bond. This writer has the impression that the Court has used a measure of several years in a de facto parental   role in order to be consistent with its findings in some of the cases involving dispensing with consent to adoption. In one instance the year before (Adoption of Hugo, 429 Mass. 219  [1998]), it moved a child from an adequate, pre-adoptive foster home (where he had been for fourteen months) to another pre-adoptive parent who, it decided, could better manage the special needs of the child in question. In that case, it severed a clear bond with the prior foster parent with the explanation that the care the child received by the preferred foster, pre- adoptive parent would outweigh the harm from the separation. However, a critical legal difference in the fact pattern in Hugo was that neither prospective adoptive parent, by definition, was biological.

E.N.O. vs. L.M.M.

Supreme Judicial Court of Massachusetts

429 Mass. 824 (1999) at: http://masscases.com/cases/sjc/429/429mass824.html

Background: This case has an extensive report. Two women shared a committed, monogamous relationship for thirteen years, clearly intended to become life partners, and had always planned to become parents. In 1991, they elected to do so biologically, deciding that

L.M.M. should try to become pregnant through artificial insemination. Before the insemination process began, the defendant and the plaintiff both attended workshops to learn about artificial insemination and parenting issues. E.N.O. attended all the insemination sessions and participated in all medical decisions. L.M.M. became pregnant in Maryland and

E.N.O. helped to take care of her through a complicated pregnancy, accompanying her to  every visit with her doctors. When the baby was born in February 1995, E.N.O. acted as L.M.M.’s birthing coach, cut the child’s umbilical cord and stayed overnight at the hospital, where staff treated her as a mother. The parties sent out birth announcements naming themselves as parents. The child’s last name consisted of the parties’ last names. Pre-and post- delivery, they had created a co-parenting agreement in which they expressly stated their intent to co-parent a child, including their intent that E.N.O. would keep her role as parent, even if they were to separate. L.M.M. signed documents authorizing E.N.O. to care for the child as a parent.

After delivery, E.N.O. became the primary breadwinner and, later, was the primary caretaker for about 7 months, due to some medical problems of L.M.M. The child called E.N.O. “Mommy” and L.M.M. “Mama,” and told people that he had two mothers. In September 1997, the parties moved to Massachusetts. In April 1998, the E.N.O. called an attorney about proceeding with joint adoption of the child. Thereafter the parties’ relationship began to deteriorate. The couple separated in May 1998. Before they had resolved the adoption issue,

L.M.M. denied E.N.O. any access to the child. In June 1998 E.N.O. filed a complaint seeking specific performance of the parties’ agreement to allow the plaintiff to adopt the child and assume joint custody. She also sought visitation with the child as well as a winding down of her financial affairs with the defendant. L.M.M.’s motion to dismiss the action was denied.

After a hearing, a Probate Court judge ordered temporary visitation, pending trial, between the plaintiff and the child. The judge applied the “best interests of the child” standard, noting that “children born to parents who are not married to each other are to be treated in the same manner as all other children.” See G. L. c. 209C, § 1. The judge viewed several facts as significant. He found that the decision to have the child was made jointly by the plaintiff and the defendant. After the child’s birth, the plaintiff had daily contact with the child and “acted in the capacity [of] his other parent in all aspects of his life.” The judge further observed that the plaintiff and the defendant “at all times referred to each other as [the child’s] parents.” In addition, the judge stated, without further description, that the plaintiff was “listed on all contracts and applications as [the child’s] parent.” (E.N.O, at 826).

The judge also relied on the report of the guardian ad litem (GAL). The judge specifically

cited the GAL’s finding that the plaintiff was an active parent and appreciative of the child’s needs. The GAL stated that “both mothers were clearly involved in [the child’s] upbringing.” (E.N.O, at 826). From all these facts, the judge concluded that temporary visitation was in the child’s best interests.

The SJC, under its equity powers, decided it had authority to act in this case. The court’s duty as parens patriae necessitates that its equitable powers extend to protecting the best interests of children in actions before the court, even if the Legislature has not determined what the   best interests require in a particular situation. “In every case in which a court order has the effect of disrupting a relationship between a child and a parent, the question surely will arise whether it is in the child’s best interest to maintain contact with that adult.” Youmans v.

Ramos, 429 Mass. at 774, 783 (1999, ( E.N.O, at 827-28). In Youmans, decided just seven days earlier, the Court decided that the aunt was a de facto parent, not because she was granted guardianship, “but because she attended to the child’s developmental, medical, and educational needs for the five years from the child’s infancy to her appointment as temporary guardian.” (Youmans, at 776). It is worthwhile to quote the Court in this case,

We acknowledge that the “best interests” standard is somewhat amorphous. We must ask what facts the judge may take into account in determining where a child’s best interests lie. Here (in E.N.O.), the judge emphasized the plaintiff’s role as a parent of the child. It is our opinion that he was correct to consider the child’s nontraditional family…A child may be a member of a nontraditional family in which he is parented by a legal parent and a de facto parent. A de facto parent is one who has no biological relation to the child, but he/she has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent. See Youmans, supra 429 Mass. at 776 & n.3 (1999); ALI Principles of the Law of Family Dissolution § 2.03(1)(b) (Tent. Draft No. 3 Part I 1998) (adopted at annual meeting May 1998). The de facto parent shapes the child’s daily routine, addresses his developmental needs, disciplines the child, provides for his education and medical care, and serves as a moral guide. See ALI Principles of the Law of Family Dissolution, supra at § 2.03(6). (E.N.O, at 828-829).

A de facto parent does not perform the above tasks for reasons of financial gain, such as a nanny or babysitter. The SJC credited how non-traditional families rear children, suggesting that the children would form significant relationships with those adults, whether biological or de facto. The SJC then distinguished cases in which they designated a non-biological parent   as a de facto one (C.C. v. A.B., 406 Mass. 679 [1990]) and one in which they did not (C.M. v. P.R., 420 Mass. 220, [1995]). The SJC went on to affirm the trial judge’s decision that E.N.O. was a de facto parent, and reiterated all the parenting tasks she did, and the manner in which both parents publicly announced her role as a parent. They noted that the dissent stated that

E.N.O. did not adopt the child, which might have disqualified her as a de facto parent. However, the majority of the SJC said that, while that is a factor to take into account, it was not sufficient in itself, especially since L.M.M.’s signed agreements indicated her assent to E.N.O.’s significant role as a parent. The dissent essentially claimed that the majority was making law through its overly broad interpretation of its “equity jurisdiction” regarding children’s welfare and basing its decision on the “hitherto unrecognized principle of de facto parenthood as a sole basis for ordering visitation.” (E.N.O, at 834-35). The dissent believed that the SJC had no basis in case or common law, including Youmans, for interfering with the right of a parent who was otherwise acting in concert with current law.

Comment: The dissent (making a clear statement that the Legislature had enacted no such statute pertinent to this case) notwithstanding, the majority in E.N.O. created in common law  a parental role it intended to use in determining the significance of adults who have acted as parents to children in what it called “non-traditional families.” That typically meant same-sex couples, where the non-biological parent did not adopt. However, it could also refer to heterosexual cohabiting couples, where the child was born of a different relationship, but the non-biological “Father” had a long term, significant bond with the child. Despite that, Father in this case neither adopted the child nor married Mother (that is, he did not become a stepparent, although the de facto parent concept would potentially apply to stepparents, too). Other extended family members who functioned in the role of parents, such as in Youmans (decided the week before) would also fit the definition of de facto parent.

From a GAL’s perspective, what is helpful is the SJC’s discussion regarding what parenting behaviors, both hands-on and administrative, are pertinent to determining the significance of that parent, both to the biological parent and to the child or children they would both raise.  The SJC, at least on its face, set a high standard in that, for someone to qualify as a de facto parent, he or she would have to “perform a share of the caretaking functions at least as great  as the legal parent.” The goal for a GAL in such as case is to tease out all the “caretaking functions” so that the SJC can decide how comparable were the respective parenting roles of the legal and the putative de facto parent. It would also be important to investigate what legal decisions (e.g. co-parenting agreement) or public acts (e.g. birth announcement) were undertaken to solidify the relationship between the child and the putative de facto parent before the adult relationship deteriorated. In this writer’s opinion, it is not the function of the GAL to determine whether someone has met the standard of de facto parenthood, but to provide the data about parenting for the court and to let the court decide how much time and investment of self is enough.

One of the challenges of making such a determination is that the SJC suggests a quantitative solution with criteria such as “at least as great” as in Youmans above or a “majority” of the caretaking functions, both meaning 50% or more. Does that suggest the putative de facto parent needs to calculate how many hours over the course of the child’s life he or she has spent in hands-on or administrative parenting functions to meet the standard? To further cloud the issue, the SJC did not provide a key to determine what priority or weight to give to these caretaking behaviors. It is likely that any trial judge will consider the totality of the evidence without having to credit one kind of parenting function over another, since those preferences can be value judgments. Since weighting or rank-ordering parenting behaviors is a near- impossible task, the challenge to the GAL is to be comprehensive and detailed enough in the report to the court. In that way, the trial judge can make his or her own determination of how much is enough in order decide whether a prospective de facto parent has reached that indeterminate threshold of “at least as great.”

CARE AND PROTECTION OF SHARLENE

Supreme Judicial Court

445 Mass. 756 (2006) at: http://masscases.com/cases/sjc/445/445mass756.html

Keywords: De facto parent

Background: This was a high profile case that involved a child who was allegedly physically abused by her mother and stepfather (petitioner), such that her injuries resulted in neurological damage and coma. DSS (now DCF – Department of Children and Families) and the Commonwealth wanted to remove her from life support. After DSS took custody of Sharlene, her adoptive mother (who was also her maternal aunt) and only guardian, died. The stepfather, who was charged with assault and battery on Sharlene, asked the court to be adjudicated a de facto parent of the child, ostensibly for the purpose of having the state keep Sharlene on life support, since the state – as DSS – was considering removing her from it.

Sharlene was born on February 24, 1994. Sharlene’s biological mother sent her to live with her aunt when the child was four. Sharlene’s biological father was absent and not a party to this case. DSS also had determined that Sharlene had been sexually abused by the boyfriend of her biological mother. DSS obtained custody of Sharlene and permitted her to live with her aunt in February 2000. The petitioner-stepfather in this case had lived with Sharlene’s aunt and married her in September 2001. In October 2001, Sharlene’s aunt adopted her. The GAL in the case noted that there were multiple reports of child abuse filed with DSS, which were all listed in the decision. Some reports were screened out, some were screened in and not supported, one or two were screened in and supported and services were instituted. The listing in the decision indicated that the injuries increased in severity, including evidence of burns in 2004 and bruises and broken bones in 2005, until the final assault in September 2005, which acts resulted in multiple trauma, life-threatening injuries, and coma. Note 6 in the decision stated, “In spite of receiving a total of fifteen G. L. c. 119, § 51A, reports over a period of three years, all alleging that Sharlene was an abused or neglected child, it was not until the last report was filed that allegations of abuse were determined to be supported. That determination came too late to protect Sharlene.” (at 761). The Court continued with a description of Sharlene’s injuries and emergency treatment, noting that she had been in a vegetative state since her emergency hospitalization. The court appointed counsel for Sharlene and a GAL, one of whose duties was to assess whether there should be a DNR for Sharlene through a substituted judgment process. Sharlene’s adoptive mother and the petitioner were arraigned, released on bail, and the adoptive mother and her own mother then either killed themselves or died through a murder-suicide pact on September 22, 10 days after Sharlene was hospitalized. On September 26, the petitioner moved to be declared Sharlene’s de facto parent.

In a hearing on the motion, the case report stated:

Through counsel, the petitioner described his relationship with Sharlene during the four years in which he had lived in the home. The petitioner proffered that he had supported her financially, had attended her dance recitals, had taught her how to perform minor repair jobs around the house, and generally took an interest in her welfare. He stated that Sharlene had no other father figure during the four years he lived in the house, and pointed out that, to her friends, Sharlene referred to him as “her father, her dad.” The petitioner conceded that he did not perform a majority of Sharlene’s parenting functions, but insisted, essentially, that he did the best that he could…The petitioner also requested in the motion to be declared the “de facto” parent of Sharlene’s nine year-old sister. The judge denied the motion as to both children. The petitioner has appealed from the denial of his motion only insofar as it pertains to Sharlene. (at 763)

Both DSS and Sharlene’s counsel opposed the motion. They argued that the petitioner was rarely available for interviews as part of DSS’ home visits, because he was not present. They also claimed that he had been aware that Sharlene was injured and vomiting on the day in question, but he did nothing to check on her until a day later. They also argued that he had to be aware of the abuse and neglect ongoing in the family and was, at worst, a contributor to the abuse, or at best, simply ignored it, particularly if he was the de facto parent that he said he was. The judge concluded that petitioner had not performed the majority of caretaking functions for Sharlene; the judge also made negative inferences as a result of petitioner’s refusal to testify as to Sharlene’s injuries (protecting his right against self-incrimination in the criminal case against him). The judge concluded that… “the petitioner is not the legal, adoptive, putative, or de facto father of Sharlene…” (at 763) and could not participate in the hearings on the motions for DNR. At the emergency hearings on the DNR motion, the court heard the medical evidence and approved the motion, from which the petitioner appealed. For the purposes of this casebook, the decision regarding the issue of de facto parenthood is the relevant aspect of the case, although those who perform “substituted judgment” evaluations would be well served to read the remainder of the case.

The court cited E.N.O. v. L.M.M., 429 Mass. 824 (1999) and Youmans v. Ramos, 429 Mass. 774 (1999), noting the definitions included in those cases from the ALI Principles of the Law of Family Dissolution. They repeated, “…we noted (without adopting) further refinements to the concept — that a de facto parent must live with the child for not less than two years and that the caretaking relationship have been established “for reasons primarily other than financial compensation, and with the agreement of a legal parent to form a parent-child relationship, or as a result of a complete failure or inability of any legal parent to perform caretaking functions.” (at 767). They noted the necessity of showing that there had been a “significant preexisting relationship,” the disruption of which would create “measurable harm,” and the presumption that such a relationship would have been “loving and nurturing.” The Court affirmed the trial judge’s finding that the petitioner had not demonstrated a de facto relationship nor had even shown any evidence that he had a loving or nurturing relationship with Sharlene. Since the petitioner had no legal standing as any kind of parent figure for Sharlene, he had no basis for participating in any of the medical decisions affecting her.

Comment: This case is included since it had a discussion of de facto parenting in a tragic

fact-pattern unlike those typically seen in family law. The reiteration of a formulaic notion of “not less than two years” of significant parenting responsibilities in the context of a nurturing relationship is the threshold over which those parents offering it as support for continued involvement in a child’s life must go. Cases that are more typical would include such scenarios as same-gender parenting relationships that dissolve (see A.H. v. M.P, later in 2006 below), instances where one parent was neither biological nor adoptive, and families where grandparents or a stepparent had done significant parenting.

A.H. vs. M.P.

Supreme Judicial Court

447 Mass 828 (2006) at: http://masscases.com/cases/sjc/447/447mass828.html

Keywords: Parent and Child, Custody, Visitation rights, “De facto parent,” “Caretaking.”

Background: The parties lived together and together they bought a home in 1998. They decided each to try in vitro fertilization with the same sperm donor, but M.P. was the first to conceive (in 2001) and had a child, a boy, in October of that year. Together they attended prenatal appointments and parenting classes; they chose the pediatrician together, were present at the birth, and authorized A.H. to make medical decisions for the child. They sent out a joint announcement of the birth and “in all aspects were a family.” (at 831). They gave the child A.H.’s surname as a middle name and decided the call A.H. “Mama” and M.P. “Mommy.”⁶

The parties discussed adoption with an attorney, who informed them of the need to adopt to protect parental rights of same-gender parents and, at their request, the attorney prepared documents necessary for adoption.⁷ A.H. understood those concerns. M.P. reviewed the adoption papers. She completed the steps to expedite the process and gave them to A.H. to consider and sign. On at least three occasions between November 2001 and April 2002 (the Court then noted), M.P. asked A.H. to act on those documents, and A.H. acknowledged at trial that M.P. had asked her, but she did not believe M.P. had set a deadline for completion. A.H. also perceived her signature on the papers as a “formality necessary in the unlikely event of a ‘worst case scenario’.” (at 832). She testified that she felt that M.P. was “nagging” her to finish the adoption process. At the time of the separation, A.H. had not done anything about those documents, and the trial court found that she had had at least six months to act on them.

When the baby was born, M.P. left her job and became a full-time, at-home parent, which the parties expected would last for a year. A.H. took a two-month leave from her job in a non- profit organization, and then returned to full-time work. A.H. performed most of her caretaking tasks when she was on her two-month leave, calming a colicky baby, walking him, bathing him, etc., as did M.P., who also breast-fed the baby. The trial court found that both parents were involved at that time, although it said that M.P. was “the final arbiter” as to the care of the child. Within the first six months, however, A.H.’s work involvement increased, as did her travel related to that (that had been an issue for the couple prior to conception) and M.P. felt as if she were parenting

6 The judge noted that M.P. disputed this decision, but no findings were issued.

7 From footnote 5 of the case, “The attorney simultaneously advised the parties to execute other documents, including wills, healthcare proxies, and powers of attorney. Both parties executed healthcare proxies and powers of attorney, naming each other as primary decision makers. The defendant executed a will naming the plaintiff “as the guardian … of any child of mine” in the event of the defendant’s death, but the plaintiff did not execute her will until five months after the litigation was commenced, a delay she attributed to the adoption attorney’s advice to seek independent legal advice concerning her estate. The plaintiff did, however, designate the defendant as the beneficiary of life insurance policies worth $600,000. The judge found that the plaintiff “acknowledged that the parties’ situation as a same-sex couple had significant legal implications, noting that they changed the title to the house because ‘the law is so unclear with respect to gay families that I wanted to make sure that should I die, no one would remove [the defendant] and [the child] from the house.’ ”

alone (and she reported that to a close friend). Practically speaking, M.P. was doing the bulk of the responsibilities of parenting. A.H.’s organization suffered a financial crisis in March 2002, which then occupied almost all of her time for the better part of a year, until the organization was on a more secure financial footing. A.H. was also a tri-athlete, and she competed in two triathlons and one half-marathon during this period, although she claimed she ran only once a week and sometimes with the child. By mid-spring, 2002, A.H. asked M.P. to return to work (A.H. had suffered a decrease in salary because of the problems in her agency), which M.P. did, despite their prior agreement for a year hiatus from work. They hired a nanny and she went back to work, part- time. By this time, their relationship was deteriorating, particularly since M.P. felt responsible for most of care of their child. In addition, A.H. worked long hours, and she failed to complete the adoption process. By the time that A.H.’s agency was back on sound financial ground (April 2003), M.P. wanted to separate from A.H. and asked her to leave, which A.H. did. They consulted a mediator/child development expert and devised a parenting plan, which lasted until July 2003, when A.H. told M.P. she was moving back into the home. M.P. then moved into her parents’ home on Cape Cod for a short time, which affected the parenting arrangement for about a week. At some undefined time after the separation, M.P. tore up the adoption papers which A.H. had failed to sign, thus ending that process.

Procedural issues: In July 2003, A.H. filed for joint legal and physical custody and visitation. She also wanted to be considered a de facto parent and sought an order that she pay child support. Three years of litigation ensued.⁸ The Court took pains to note the intensity of the legal conflict by listing the frequency and types of motions, hearings, sanctions, etc., that this case has endured. In August 2003, a judge issued a temporary order for parenting time and child support. In May 2004, the trial judge appointed co-guardians ad litem to investigate “whether the child’s best interests required continued contact” with A.H., and if so, what kind of contact. The order specifically prohibited an investigation on issues of custody,⁹ referencing Standing Order 1-05, standards 1.1 and 1.3 for Category F Guardians ad litem investigators “limiting guardian ad litem investigators to gathering and reporting facts that will assist the court in making decisions on custody, visitation, and other matters, in accordance only with the areas for investigation specified in the judge’s order.” (at 835). The guardians ad litem submitted their report in May, 2005 and the case proceeded to trial, although there were several motions/hearings in the interim. The case culminated in the trial court in an eleven-day trial.

After that trial, the judge entered a Judgment in July 2006. She awarded sole legal and physical custody to M.P., dismissed all of A.H.’s claims, and left visitation to the discretion of M.P.. A.H. had not provided sufficient facts to justify de facto parent status.

Findings: Specifically, the judge found that A.H.’s efforts during the relationship toward the child’s care were not equal either in quantity or quality to those of M.P., that A.H. had failed to prove that continued contact between her and the child was in his best interests, that parenting time would not be in the child’s best interests because A.H., “in direct contravention of both the parties’ previous

8 No pun intended.

9 The order stated that current law does not recognize rights of custody in de facto parents, and so ordered no investigation on that issue.

practices and common sense … selectively ignored [the defendant’s] directives regarding the child’s care and custody,” and that the child would not suffer irreparable harm from the severing of his contact with A.H. (at 836). She also concluded that A.H. had no standing to bring claims for either visitation or a support order under any other theory.¹⁰

De facto parent: The SJC described the factors underlying any determination that a non- biological parent had a significant pre-existing relationship with the child. In such a relationship, he/she would have had to perform a variety of child caretaking tasks at least as great as the legal parent and be involved to such an extent that the Court could infer that any severance of that relationship “would allow an inference, when evaluating a child’s best interests, that measurable harm would befall the child on the disruption of that relationship.” Care & Protection of Sharlene, 445 Mass. 756, 767 (2006), and cases cited.¹¹ They stated:

The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent        The de facto parent shapes the child’s daily routine, addresses his

developmental needs, disciplines the child, provides for his education and medical care, and serves as a moral guide.” E.N.O. v. L.M.M., 429 Mass. 824, 829 (1999). See ALI Principles, supra at § 2.03(1)(c) (defining de facto parent).¹² (at 837).

A.H. claimed that the trial judge mistakenly failed to consider her financial contributions to the family – that she was the primary ‘breadwinner’. The SJC disagreed and stated the trial judge had taken that factor into account. However, they referred back to the ALI definitions, which indicate that there is a difference between “parenting functions,” which are “tasks that serve the needs of the child or the child’s residential family,” ALI Principles, supra at § 2.03(6), and “caretaking functions,” which are ” the subset of parenting functions that focuses on “tasks that involve interaction with the child or that direct, arrange, and supervise the interaction and care provided by others.” Id. at § 2.03(5). “Parenting functions” that are not “caretaking functions” include, for example, providing financial support and maintaining the home. See id. at § 2.03(6) & comment g, at 125. Caretaking functions “involve the direct delivery of day-to-day care and supervision of the child,” including grooming, feeding, medical care, and physical supervision. Id. at § 2.03(5) & comment g. (at 839). The SJC asserted that they did not intend to “disparage or discount the role of breadwinners in providing for a child’s welfare.” Instead, the justices opined that a parent-child bond develops through the variety of hands-on acts involved in tending to a child’s basic physical and emotional needs. The consideration of direct caretaking as the “particular subset of parenting tasks having most directly to do with interacting with and on behalf of the child serves as a valuable tool for assessing the adult’s bond with the child. See ALI Principles, supra at Introduction.” (at 839). They distinguish those caretaking acts from other parenting activities,

10 After the judgment, A.H. successfully moved in the Appeals Court to stay the judgment until the full Appeals Court could hear her appeal. In so doing, the extant visitation plan remained in effect.

11 In Footnote 12 of the case, the Court noted that a “best interests” assessment is relevant only after the Court has determined that the non-legal parent has met the criteria for de facto parenthood.

12 In Footnote 13, the SJC defines de facto parenthood using the ALI standard, but notes that they did not need to use the criterion of a two-year period of significant caretaking, because A.H. did “not meet her burden on other grounds of proving she is the de facto parent…”

such as working on a parent-teacher committee at school or working outside of the home, that benefit a child indirectly. They state that the direct, hands-on activities of caregiving “are likely to have a special bearing on the strength and quality of the adult’s relationship with the child.” ALI Principles, supra at § 2.03 comment g.

The focus on caretaking in the ALI Principles is one means by which to anchor the best interests of the child analysis in an objectively reasonable assessment of whether disruption of the adult-child relationship is potentially harmful to the child’s best interests. See generally ALI Principles, supra at § 2.02 comment b, at 96. And potential harm to the child is, of course, the criterion that tips the balance in favor of continuing contact with a de facto parent against the wishes of the fit legal parent, who has “fundamental liberty interests” in the child’s care, custody, and control.

Troxel v. Granville, 530 U.S. 57, 65 (2000)… (at 840).

More than parental functions not aligned with “caretaking,” it more directly and accurately furthers the principal goal of the de facto parent principle: to prevent trauma to the child, Youmans v. Ramos, supra at 784, that may result from forced rupture of a parent-child bond forged in the “direct delivery of day-to-day care and supervision of the child.” ALI Principles, supra at § 2.03 comment g. It does not denigrate the importance of an adult’s financial contributions to a family, or the role of such contributions in securing the child’s welfare, to require that one who is not a legal parent and who invokes the equity powers of the court to establish herself as a de facto parent demonstrate a history of substantial direct, loving, appropriate involvement in the child’s supervision and care.¹³ (at 841).

The justices noted that the trial judge had the discretion to credit the financial contributions of A.H. as a benefit to the child, which she did, but the trial judge found that the child’s primary bond was with M.P. and that “the relationship between the plaintiff and the child, however salutary to the child, did not “rise to that of a parental relationship.” The SJC also stated that the trial judge was free to include or ignore aspects of the GAL testimony, that of M.P.’s expert witness, and information from other fact witnesses. The justices also credited the trial judge in considering both the “quantity and quality” of the parties caretaking of the child, contrary to A.H.’s claim that the judge considered the caretaking factor in a “mechanistic” way.

Parent by estoppel. The SJC considered this appeal as the A.H. claimed that the trial judge erred in not viewing the evidence within a framework of “parent by estoppel” theory.

“The ALI Principles also recognize “parent by estoppel.” Into this category of parents falls an individual who, in relevant part, although not a legal parent, “(i) is obligated to pay child support … or … (iii) lived with the child since the child’s birth, holding out and accepting full and permanent responsibilities as parent, as part of a prior co-parenting agreement with the child’s legal parent … to raise a child together each with full parental rights and responsibilities, when the court finds that recognition of the individual as a

13 In Footnote 15, the SJC noted that this distinction between parenting functions and caretaking functions is not appropriate in a custody dispute between two legal parents.

parent is in the child’s best interests.” ALI Principles, supra at § 2.03(1)(b). (at 842).

According to the decision, this legal theory applies where, according to ALI Principles, parents agree between themselves to raise a child together when “adoption is not legally available or possible Id. at § 2.03 comment b (iii ), at 114.” In this case, they noted, A.H. could have adopted “virtually from the moment of the child’s birth.” They noted that private agreement is not sufficient in itself to create parental rights in a non-legal parent. In T.F. v. B.L., 442 Mass. 522 (2004), they held that, ” ‘[p]arenthood by contract’ is not the law in Massachusetts,” and contracts entered into to the contrary were void as against public policy. Id. at 530. They noted:

An express or implied agreement to have or raise a child may be relevant to the parties’ intentions, help explain a course of conduct, or otherwise shed light on matters of material import to a custody or visitation determination. Here, the judge found that the parties entered into an agreement to have and raise a child together and found that the parties’ subsequent actions in respect to the agreement to parent jointly illuminate an important source of the couple’s conflicts. But evidence of an agreement is not and cannot be dispositive on the issue whether the plaintiff is the child’s legal parent. (at 844).

The SJC then briefly discussed the notion of judicial estoppel, where A.H. said that statements and actions taken during the litigation (such as asking for child support) should limit M.P.’s constitutional right, as a competent parent, to make decisions for her child unfettered by state interference. This would give the court to right to “estop” M.P.’s claim to deny parent status to A.H. The SJC affirmed the trial court judge in finding that the evidence did not support the notion of judicial estoppel and it also found that this legal mechanism was not an appropriate tool in the “intimate, private realm of family life.” (at 845).

Comment: This was the second case in 2006 to deal with de facto parenthood. The first case, Sharlene, involved a step-parent. A.H. v. M.P. adhered to the ALI Principles, as had earlier decisions in this area of law. Most importantly for an investigative or evaluative work GAL was the distinction – important where one parent is not a legal parent – between direct, hands-on caretaking functions and indirect parenting functions. The Court also seemed to give some weight to parenting functions that might affect the direct care of the child, but are one-step removed, such as giving instructions to babysitters or nannies, setting up medical or dental or other health care appointments, finding tutors, day care/pre-school centers, enrolling children in extra-curricular activities, coaching extra-curricular activities, and (in modern society), driving children to and from activities. These would appear to reflect parenting activities that “direct, arrange, and supervise the interaction and care provided by others.” In relying on the ALI Principles, the Court applied a threshold time test of two years of parental involvement, rather (as Alex Jones observed) than relying on the more qualitative concept of attachment. Query what would happen if the non-biological parent had been the one who did the majority of the hands-on parenting, but he/she functioned in that role for less than two years before the relationship ended. One aspect of such a fact pattern would be the amount of time in parenting, but another, more psychological one, would be the nature of the attachment between the child and the non-legal parent who invested all that time in caregiving. This case appears to suggest that the “bright line” criterion of two years trumps the issue of attachment.

A second implication of this opinion relates to the factors one considers in custody determinations. While the Court explicitly differentiated their thinking in a de facto parenting case from a custody determination, among the issues under consideration in the latter instance is the assessment of direct and indirect hands-on “caretaking functions” as well as other “parenting functions,” such as employment and income production (i.e. being the “primary breadwinner”) which “serve the needs of the child or the child’s residential family.” (at 839). It has been this writer’s experience that the court and attorneys strongly credit direct and indirect “caretaking functions” over the more general “parenting functions” in considering who has been the primary caretaking parent. In one case, an attorney used a creative argument in which she totaled all the hours of parenting over several years of the child’s life to bolster her claim that her client was the primary parent. That kind of calculus, all other things being equal (which is rare), is often front and center in a balancing of factors in custody assessments.

Subsumed under this balancing of factors is a political/cultural debate about what aspects of parenting should be considered when making custody determinations, and the weight the trial court should give to what the SJC (using the ALI description) called “parenting functions.”¹⁴

A third aspect of this case reflects the fact that a “best interests” determination is subsumed under the question of whether the non-legal parent can prove that he or she was sufficiently and directly involved to meet the threshold test of being a de facto parent. One of the conditions of de facto parenthood –after meeting the time criterion – is that the nature of the pre-existing relationship with the child would be such that severing it would result in demonstrable harm to the child. The SJC said that, where one parent has been so involved as to be a de facto parent, one could infer that a rupture of that relationship would cause demonstrable harm. The challenge then for an evaluator or investigator would be to provide the court with some scenarios of parenting time that would prevent harm to the child, a difficult task in itself, since prediction of specific harm is probably impossible and there is no base rate data with which to make a comparison to any particular case (perhaps divorce

14 Fathers and Families, Inc. submitted an amicus brief in which it advocated that the Court “neither overvalue nor undervalue breadwinning, but to include it as a factor of equal importance among other caretaking functions of parenthood. A breadwinner with whom the child has formed a parent-like attachment, and who satisfies certain other reasonable criteria as may be established, should have an equal claim to the status of de facto parent (or custodial parent), not just in deference to the virtue of the breadwinning parent, but in light of the needs of the children.” A.H. v. M.P., On Appeal from a Judgment of the Middlesex Probate and Family Court. Brief of Amici Curiae on Behalf of Fathers and Families, Inc. (October 4, 2006), at 33. The apparent agenda in the Brief was to draw a parallel between the importance of the breadwinner role in a de facto parenting situation and the same role in the far more common separation/divorce scenario, where the father is the breadwinner in the vast majority of those cases. In several places in the Brief, when they mentioned the relationship with breadwinning and being a de facto parent, they followed that immediately with a parenthetical “custodial parent.” in which one parent does not see the child might be close). Should the GAL, using the ALI principle of proportionality,¹⁵ recommend a schedule that reflected the amount of time the de facto parent gave when the couple lived together? That would be problematic, since one measure of de facto parenthood is a situation in which the former non-legal parent did as much hands-on parenting as the legal one, suggesting a shared physical custody arrangement. Obviously, somewhere between that schedule and one that maintains reasonable contact between the child and the de facto parent is likely to be more practical, but where to draw that line would appear in the end to depend upon common sense, clinical acumen, and simple practicality.

PARENT COORDINATION ISSUES

WILLIAM BOWER v. MICHELLE BOURNAY-BOWER

Supreme Judicial Court

469 Mass. 690 (2014) at: http://masscases.com/cases/sjc/469/469mass690.html

Keywords: Parenting Coordination, Judicial Review, Due Process, Right to Hearing.

GAL/PC Highlights:

This case involved an appeal from a court order appointing a parenting coordinator (PC) over the objection of one of the parties, in this case, Mother. The judge gave the PC the authority to make binding recommendations that required the parties to follow them, even before either one of them sought judicial review. It also allowed the PC to make structural changes to the parenting agreement/plan that conflicted with statutory requirements governing modification of agreements or orders. The opinion also referred the matter to the Probate and Family Court so that it might consider rules and regulations governing the appointment and practice of PCs in the Commonwealth, which eventually led to the Standing Order 1-17.

Background:

The parties had four minor children at the time of the filing for divorce in 2009. Two years later, the trial court entered a Judgment, incorporating the parents’ detailed parenting plan, which included shared decision-making authority (i.e., shared legal custody). The Judgment further listed detailed holiday and vacation parenting times, as the parties were unable to reach agreement on those issues during the two-year litigation. By the end of 2011, the parties had filed cross-complaints for contempt, alleging their respective violations of the terms of the Judgment. These complaints included failure to comply with the parenting plan and to share decision-making for the children. Part of Father’s complaint involved asking the court to order Mother to participate in a parenting coordination process (PC), where the PC’s recommendations would be binding upon both of them.

At the hearing on the Contempts, the judge did not deal with the allegations, but instead focused on the parenting coordination issue. Mother preferred that these parental conflicts be handled by the Court, which was familiar with the parties and the particulars of the case. She wanted the Court to enforce the terms of the Judgment. Over Mother’s objections, the judge ordered the parties to use the services of a PC, who was named in the order, and ordered the father to pay for those services. The PC was empowered to “hear all the parties’ current and future disputes regarding custody and visitation in the first instance, before the parties could file any action regarding these disputes in court.” (at 692-93). Also, the PC had the authority to make binding decisions on issues of custody and parenting time, which decisions the parties had to obey “as if they were court orders, unless one of the parties were to go to the court before (emphasis added) the decision was to take effect and obtain a contrary order.” (at 693). The judge in the case retired, but the decision was affirmed by a second judge. Mother appealed.

Opinion:

The SJC (hereafter, the Court), recognizing the value of PC’s in resolving disputes and implementing parenting plans, concluded that the judge had exceeded her authority in a way that did not pass constitutional muster. The justices described the role of PCs in different jurisdictions, noting the different professionals who may fill that role and the various functions included therein (e.g., mediation, special master, or “multiple functions”, such as a hybrid role of mediator-arbitrator). (at 694). While other cases have affirmed the value of a PC (see Katzman v. Healy, 77 Mass. App. Ct., 589 at 594, 2010, and others), the Court noted that there was no rule or statute delineating the specific functions or any listing of the necessary qualifications or scope of authority of such a PC. They contrast this with SJC Rule 1:18, which offers a set of rules governing court-connected alternative dispute resolutions services (ADR), including clear guidelines on the limits of such services (e.g. for instance, that no party need pay for services to which they have been ordered to use (in contrast to services to which they agree to use) or that any outcome of mandatory ADR services cannot be binding on the parties). The opinion also references the GAL appointment statute (M.G.L.  215 § 56A), including Standing Order 1-08, that offers standards of practice for GALs. Because the judge did not appear to base her decision to appoint a PC on any statute or court rule and the PC’s authority was not limited in scope as in other ADR services, the Court reasoned that she based that decision on her inherent judicial authority.

The Court determined that a judge could appoint a PC where appropriate. They noted that PCs have greater flexibility and timeliness than courts to handle everyday parenting disputes that otherwise might give rise to a complaint for contempt or other court proceeding. They pointed out that a PC can give relief to an otherwise overburdened court services and can promote the goals of the Court in serving children’s best interests. They affirmed the broad authority of a Probate and Family Court judge and called that “broad and flexible inherent powers essential to act in the best interest of persons under its jurisdiction.” (at 698), but they emphasized that this broad authority “is not without limit.” (at 700). The opinion goes on to describe instances where the Court has limits on its authority. The power of the Court flows from that authority given in the Massachusetts Constitution and Declaration of Rights, but that authority cannot be used in a manner that negates the “constitutional rights from which those powers arise.” (at 701). The decision of the trial judge raised significant due process concerns, which limits extend to the authority of a PC appointed by the judge.

The Court opined that a judge cannot subject a party to the binding decision-making authority of a PC “without that party’s consent.” (at 701). The order required Mother to submit complaints to the PC and not the Court. They likened that aspect of the PC role to that of an arbitrator, but they noted that a judge cannot order arbitration absent mutual consent of the parties. In addition, as the judge referred the complaints before her to the PC she appointed over Mother’s objections, the judge effectively deferred any decision on complaints about disputes that occurred before the hearing (and were the subject of the cross-complaints for contempt). This prevented Mother from seeking redress from the Court under the terms of the Judgment. In addition, the order required the parties to first address disputes to the PC, before seeking court review. Again, this “prior restraint” (at 703) was instituted without agreement of the parties. Moreover, the Court did not believe that post-PC judicial review was sufficient to protect a complainant’s rights where that party was compelled to submit to the initial PC process with a binding recommendation. This may occur when the PC recommendations over day-to-day disputes are to be implemented immediately, when it would be impractical to seek a court hearing that could take weeks. Thus, one of the benefits of a PC recommendation – its timeliness – may undermine a party’s due process rights when that party has not agreed to the binding authority of the PC.

The Court then addressed Mother’s argument that the order appointing the PC was so broad “that it constitutes an unlawful delegation of judicial authority,” (at 706), because it granted the PC the power to make structural changes in the parenting plan. For a judge to alter a parenting plan requires a showing of a “material and substantial change in the circumstances of the parties” and the proposed change is “necessary in the best interests of the children.” (at 706). At that time, a PC was not required by any rule to consider that standard, if he or she were to make such a structural change (see M.G.L. 208 §28). Even if the order required the PC to adhere to the legal standard, the statute mandates that only a judge has the authority to modify an existing custody arrangement (that would be enforceable in court).

Understanding the absence of any statutory authority to appoint PCs, the Court, in recognizing the value of PC services, referred the matter to the Probate and Family Court to “review and consider the promulgation of a rule governing the appointment of parenting coordinators.” (at 707). The opinion then proceeds to delineate the powers and limits that might be included in such as rule, including payment options. The justices noted that no party could be forced to pay for such a service without their consent. The Court acknowledges the increasing frequency of PC use in the Commonwealth and their value to families and the court system. As noted earlier, the Probate and Family Court created a committee to fashion a rule for PCs – Standing Order 1-17. (Available at https://www.mass.gov/probate-and-family-court-rules/probate-and-family-court-standing-order-1-17-parenting-coordination

Comment: Until this case and the subsequent Standing Order, PCs had no foundational statutory authority to practice. In almost all cases, they were appointed by mutual agreement of the parties, but the education and training required of a PC and means of payment, among other issues, were without any official state guidelines.[36] The legislature could not previously pass a statute, so this case created a path for the Probate and Family Court to make its own set of rules for the appointment and practice of PCs, including credentialing for a list and continuing education. As stated in the original opinion (not above) and reinforced in the Standing Order, no party could be ordered into any PC service if there were issues of domestic abuse in the case, and, in particular, if a restraining order had been issued. (Standing Order 1-17, §13 (a-b)).

NORBERTO A. Y LEON VS. JESSICA S. CORMIER

Massachusetts Appeals Court

91 Mass App. Court 216 (2017) at: http://masscases.com/cases/app/91/91massappct216.htm

Keywords: Divorce, Parenting Coordinator.

GAL/PC Highlights: Mother (Ms. Cormier) appealed a contempt finding against her, which was based on her refusing to comply with the decision of their parenting coordinator (PC). In this instance, the parties had agreed to use the services of a PC and to be bound by the his/her decisions. Moreover, since that agreement was incorporated into the Judgment of Divorce (giving the PC decision the force of a court order), the judge’s decision to uphold that PC decision did not constitute an improper delegation of judicial authority. It was not improper, because the agreement contained the parties’ right to judicial review of the PC decision, which in itself did not revise the custodial arrangement in any material way and supported Father’s right to parenting time with the children. Since there was the possibility of judicial review in their agreement, the judge was not ceding his/her authority to the PC (or a third party).

Background: The parties divorced in 2011 and in late November 2012 fashioned an agreement to use a jointly-chosen PC to help them in the event there was a need to modify their parenting plan. They could modify their plan by agreement, but if that failed and the PC were used, they agreed to be bound by the decision of PC “unless altered, modified, or terminated by (c)ourt order” (at  217). The terms of their agreement, as it was incorporated into a corrected Judgment were “given the full force and effect of an order of (the) (c)ourt.” at 217.

Disputes then arose over the children (e.g., location of pick-ups and drop-offs) and the parties engaged a PC. In December 2013, after considering a dispute, the PC e-mailed the parties with a recommendation regarding aspects of their parenting time and e-mail communication. Mother did not contest this decision nor seek court intervention to change it. Over the next 18 months or so, she violated the terms of the decision with respect to both issues noted above. In December 2015, Father filed three motions for contempt over these violations. The judge found Mother in contempt as she had freely entered into the contract with the PC and failed to seek any court involvement before the PC’s decision was to take effect. Essentially, she ignored the PC recommendations with respect to exchange locations and to e-mail timing. The judge informed Mother that she was in danger of having her parenting time diminished or suspended, if she did not comply with the e-mail communication recommendations. In addition, Father was awarded twelve additional days of time with the children as compensation for lost time due to Mother’s ignoring of the PC recommendations.[37]

Legal Issues: Mother claimed the PC recommendation was not valid, as the Court did not approve it nor entered it into a Judgment. Also, she asserted that it was Father who had the responsibility to use the judicial process to turn the recommendation into a court order. However, the Court opinion was clear that, as noted above, the parties had agreed to a PC, selected one together, and committed to follow the recommendations of such PC, unless a court indicated otherwise. Since their agreement, incorporated into their Judgment of Divorce, had the power of a court order, either party’s violation of that agreement could have been grounds for contempt.

As Bower v. Bournay Bower 469 Mass. 690 (2014) had already been decided, the Court noted the power of a judge to appoint a PC, but not to coerce a party to use or pay for that professional, if that party objected. This agreement by the parties pre-dated the PC standards, but was at the time valid and reasonable, because both parties agreed and included the right of either to seek judicial review before a recommendation took effect. Their agreement left the judge as the final arbiter of any dispute, the last resort each could initiate in the event either one objected to a PC recommendation. This is in contrast to the situation in Ventrice (2014), in which the Court vacated the judge’s decision, as it had strictly limited the parties’ ability to seek court involvement and compromised their “free access to the courts,” because Ventrice had required mediation before filing any motion to address the dispute.

As for the recommendations by the PC in the instant case, the Court found them to be limited in scope and, if complied with, would have reflected “effective and permissible use of the parent coordinator’s services” which “did not impinge on the judge’s inherent authority.” (at 221). The contempt findings, based on clear and convincing evidence of Mother’s violations, was affirmed by the Court.

Comment: Much about these cases has changed with the Standing Order (SO) 1-17 regarding standards of practice for PCs.[38] In order to obtain a PC, the parties have to first meet with prospective PCs, review contracts, and then submit to the court in person the contract of the PC they choose. The judge can then have a discussion with them about their understanding, consent to participate, costs, time limits, etc., and then approve of the choice. That legitimizes the process, the details of which are in the standing order. Of some relevance to this case, in order for a recommendation to be enforceable in court, the new SO requires parties to submit modifications to their Agreement or Judgment (i.e., PC recommendations) to the court, most readily by using the form “Joint Petition to Change a Judgement/Temporary Order (CJD 124). The form suggests the parties do not have to appear, unless the court has some question about the change. Prior to the inception of the SO, as in Leon, the party who objected to the recommendation had to seek judicial review of a PC recommendation; post-SO, the party wanting to enshrine the recommendation and have it enforceable has to file that form. If the other party objects, it is likely that a hearing on the recommendation would be required. Otherwise, under the SO, the recommendation would not be enforceable.

KEVIN HORNIBROOK, personal representative, vs. CHERILYN RICHARD & another.

Supreme Judicial Court

488 Mass. 74 (2021) at: http://masscases.com/cases/sjc/488/488mass74.html

Keywords: Conservator. Judicial Immunity. Fiduciary. Conversion. Practice, Civil, Discovery, Motion to dismiss.

Decision Summary: A court-appointed conservator is a nonjudicial person fulfilling quasi- judicial functions. As such, a (court-appointed)[39] conservator has absolute immunity for acts authorized or approved by the Probate and Family Court. However, when a conservator’s acts have not been authorized or approved by a court (i.e. acting as a private, contractual professional or outside the scope of authority granted by the court), the conservator may be held personally liable.

Background: As is often the case, this is a complicated fact-pattern, Kathleen Hornibrook, the plaintiff’s mother had become infirm and disabled, and her son, Francis, became her caretaker. Pursuant to a complaint, Ethos Elder Services determined that she was being neglected as well as financially exploited by Francis. They filed an emergency protection petition under G. L. c. 19A in Suffolk P&FC. Consequently, Kathleen was moved into a nursing home. Kevin, her other son (and eventual plaintiff in this case) was appointed as her permanent guardian, and the defendant, Ms. Richard (a licensed attorney), was appointed as her permanent conservator.[40]

Sometime later, Kevin learned that his mother was eligible for in-home care. He obtained 24-hour care and moved her back into the first floor of her home, a three-family house, Kevin intended to rent out the upper two floors of the house, but Francis was already living there. Following Kevin’s request, Ms. Richard filed an eviction notice against Francis, as it was believed he posed a threat to Kathleen. There was some disagreement between Kevin and Ms. Richard on this, as he claimed he asked her several times to evict Francis, but there was only evidence of one eviction filing. Francis continued to live in one of the apartments and did considerable property damage to it.

While this conflict was occurring, Kathleen remained in the nursing home. She had a reverse mortgage on her home, but the lender brought foreclosure proceedings because she violated the terms of that mortgage as well as federal reverse mortgage rules (by not living in the home). Kevin notified Ms. Richard, who hired counsel to successfully stop the foreclosure, at least temporarily. Simultaneously, Ms. Richard successfully sought court permission to clean up the property, prepare it for sale, and show it on specified dates, until it was sold. She also successfully evicted Francis from the home. She completed all those approved tasks then successfully motioned the court for license to sell the house for a specific price. Kevin did not object to that sale. She sold the home for more than the asking price and she paid various fees pursuant to that sale. She also had to reimburse Medicare for the costs they expended for Kathleen’s nursing home expenses, after Kathleen had died.

While Kathleen was still alive and living in the nursing home. Kevin, as guardian ad litem and next friend, sued Ms. Richard in probate court for breach of fiduciary duty, malpractice, conversion, and fraud. The probate court, lacking jurisdiction to decide these issues, transferred the suit to superior court. Ms. Richard moved to dismiss, basing it , first, on Kevin’s failure to state a claim and secondly, on her having quasi-judicial immunity; that motion was allowed. Kevin then moved for “relief from (that) judgment,” which was denied without prejudice (i.e., he could refile as if there had been no decision). Kevin then was appointed the personal representative of Kathleen’s estate and filed a renewed motion for relief from judgment (opposing the motion to dismiss), which was then allowed. In a subsequent hearing, the court dismissed the malpractice and fraud claims. It allowed the claims on breach of fiduciary duty and conversion (i.e., interference with another person’s right to property) to go forward, but on the record stated that the claims were “paper thin.” More importantly, the court ruled that “a conservator enjoys quasi-judicial immunity when acting within the scope of his or her duties.” (@78).

The parties were then ordered to conduct and complete discovery to show whether Ms. Richard was acting outside the scope of her duties in relation to the plaintiff’s claims for breach of fiduciary duty and conversion. Ms. Richard appealed from the Superior Court judge’s denial of the motion to dismiss on the breach of fiduciary duty and conversion counts. The SJC transferred the case to this court on its own motion. What follows is a discussion about quasi-judicial immunity. From 1935 in MA, this applied to judges regarding decisions made pursuant to their legal exercise of jurisdiction. (citing LaLonde v. Eissner, 405 Mass. 207, (1989)). The Court has extended judicial immunity to persons who perform judicial functions; among such are the court-appointed psychiatrist in LaLonde and the guardian ad litem in Sarkisian v. Benjamin, 62 Mass. App. Ct. 741. A court-appointed personal representative of an estate would also quality (Farber vs. Sherman, Mass. App. Div., No. 17-ADCV-44SO (Dist. Ct. Mar. 15, 2018).

Discussion: In determining whether a person performs a quasi-judicial function and is thus entitled to absolute immunity, the Court uses a “functional analysis.” (@79).  Are the person’s duties “closely associated with the judicial process” (Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir. 1989), quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)). LaLonde’s duties included providing an expert opinion to the court, which qualified as an “essential judicial function.” The Court realizes and acknowledges that so-called officers of the court, who are necessary to the adjudication process “must be able to act freely without the threat of a law suit.” (LaLonde, @211.), and, as such are entitled to quasi-judicial immunity when performing those services. However, the Court noted that such immunity does not apply when the person acts outside the scope of their authority.

Kevin Hornibrook claimed that Ms. Richard was not performing “essential judicial functions.” While the SJC had not previously considered whether immunity applied to court-appointed conservators, in Cok above), the U.S. Court of Appeals determined that a conservator of assets was a person fulfilling quasi-judicial functions, because a conservator performs functions that aid and inform the family court. (@80). That First Circuit court held that the conservator in Cok had “absolute judicial immunity” for those acts performed in accordance with the appointment.

Functionally, when conservators act as directed and as authorized by a court, they do so as an “arm of the court” (Sarkisian @ 746) and, thus have absolute immunity for damage claims arising from their performance of delegated functions. The Court added that the conservator is not acting on behalf of the conservatee (in this case, Kathleen Hornibrook), but as an agent of the court (See Gross v. Rell, 304 Conn. 234, 251). Of some relevance to parenting coordinators who are not court-appointed, a non-appointed conservator would be considered a “fiduciary of the conservatee and may be held personally liable.” See Gross, @ 254.

The Court then turned to a consideration of whether Kevin’s other claims were subsumed under Ms. Richard’s authorized functions. Kevin claimed that Ms. Richard’s actions toward cleaning, preparing, and ultimately selling the house were outside the bounds of her duties, but the Court found she expressly sought court permission for same and that such actions were well within her authority as conservator. The Court indicated error on the part of the judge who denied Ms. Richard’s motion for dismissal of the above claims.

1. Breach of fiduciary duty. Kevin alleged that the Ms. Richard failed to preserve Kathleen’s property and estate in breach of her fiduciary duty. Kevin claimed Ms. Richard wasted estate funds through her multiple attempts to evict Francis in order to sell the house. He also claimed she first offered the house for sale for less than it was worth. The Court found that Ms. Richard increased the sale price pursuant to Kevin’s objection. Also, since the eviction and preparation of the home was essential to its sale and Ms. Richard included those facts in her motion to evict Francis and sell the property, by extension those acts were protected under the judicial immunity.

Kevin further alleged that Ms. Richard “committed a breach of her fiduciary duty” by failing to follow his care plan for his mother and thus necessitating expensive nursing care. The Court found that he did not object to Ms. Richard’s plan to sell the home, which would have obviated his proposed plan, since there would be no residence for his mother. There was no evidence that Kevin asked the court to approve his care plan. The Court reasoned that the approved sale of the home allowed immunity for Ms. Richard, despite the inability of Kevin to implement his (unapproved) care plan.

1. Discovery. The decision suggests that the Court might have supported the Superior Court judge’s ruling ordering “narrowly tailored discovery.” If Kevin had specified which acts he believed fell outside Ms. Richard’s immunity, the SJC might have supported that decision. As Kevin did not do that, the Court reversed the judge’s order approving such discovery.
2. Personal liability of conservators. The Court noted again that the rule of quasi-judicial immunity is not absolute, in that it does not apply to acts that “are not authorized or approved by the probate court,” such that “the conservator is no longer acting as an agent of the court, and as such may be held personally liable.” (@84). The Court did not address the issue of liability when the conservators act within their statutory authority, but without specific authorization by a court, as that was not something Kevin alleged.

Conclusion. The Court reversed the Superior Court decision denying Ms. Richard’s motion to dismiss and sent it back to the lower court to enter an order of dismissal.

Commentary:[41] While there is no case yet involving possible quasi-judicial immunity for parenting coordinators, it should be clear that the discussion about a court-appointed conservator can apply to PCs. The PC practice is related to the judicial process and is an “essential judicial function” (i.e., dispute resolution with high conflict parents in family court).  In Bower v. Bournay-Bower (469 Mass 690 (2014)), the SJC pointed out that a PC can give relief to an otherwise overburdened court services and can promote the goals of the Court in serving children’s best interests.

In addition, the PC, as a neutral, must be able to perform this difficult service without the threat of personal litigation.  Other lessons also follow from this case.  First, prospective PCs should make sure they are appointed by the Court and that the appointments also incorporate in some manner their service or retainer agreements. It may well be helpful to specify the terms of the PC engagement (particularly as to scope), which per Standing Order 1:17 must be confirmed in writing and signed by both parents and the PC. Also, the PC service agreement should be attached to the specific pleading that seeks or confirms the appointment.  This provides PCs the semi-protective umbrella of immunity as agents of the court so long as they function within the scope of authority granted by the Court and/or Standing Order 1:17. The idea that there may be acts vulnerable to complaint even while acting within one’s authority, gives one pause.  It may be that there are issues not contemplated by 1:17 and, therefore, not expressly permitted or forbidden by the Order.  As such, this suggests that PCs should get written permission from the parties (and attorneys, if still active) and seek court approval before addressing an issue where the Court, SO 1:17, or the service agreement itself does not provide clear direction. This may be particularly important when the unanticipated issue in dispute is subject to a binding recommendation.

ABOUT THE AUTHOR

Robert A. Zibbell, Ph.D., is a licensed psychologist and parenting coordinator in Bourne, MA, who performed GAL work from 1980-2012. He was one of the founders in 1993 of the Massachusetts Association of Guardians ad Litem, Inc. He has been on the board of that organization in many capacities and is a past Chair of the Education Committee. He has been on the board of the Massachusetts Chapter of the Association of Family and Conciliation Courts and is a past chair of their Conference Committee. Dr. Zibbell participated in the writing of the original parenting plan guidelines in 1991 and again in the 2004 revision. He had also been directly involved in the creation of standards for Category F and indirectly for Category E GALs. He has presented on child and family forensic issues in various venues to judges, family law attorneys, mental health professionals (GALs) and family service officers. From 2019-22, he has also co-taught the Parenting Coordination certificate course at William James College. For many years, he has been part of a panel of GALs who participated in the annual court-sponsored training for prospective GALs. Dr. Zibbell has published articles for MCLE and for peer-reviewed journals, such as Family Court Review and the Journal of Divorce and Remarriage. Along with Geri Fuhrman, Psy.D., he is the co-author of Evaluation for Child Custody, Oxford University Press (2012) and, with her, of chapters on that subject in two edited books on forensic psychology.

[1] The judge found that, for, the three younger children, Mother “had been the primary custodian for all of their lives and this arrangement is currently serving their needs.” (Note 9.)

[2] The judge did consider Father’s failings, as noted in the GAL report, including badmouthing Mother in the presence of the children. She also noted that neither parent put the children’s interests first, neither was able to effectively co-parent, and, as per the GAL, “both parents have done these children a terrible disservice.” (note 16).

[3] In Footnote 13, the opinion noted that the judge was troubled that Father initiated an involuntary inpatient psychiatric admission for the eldest child, alleging that the daughter was “out of control” and “out of touch with reality,” because she wanted to live with Mother.

[4] That situation reminds me of the apocryphal legal story of the young man who murdered his parents and then threw himself on the mercy of the court because he was an orphan.

[5] Mother filed a motion for the court to reconsider based on, among other things, the child’s distress at these changes. The motion was filed only a short interval after the Judgment and the possible distress was anticipated and acknowledged by the trial judge in her decision.

[6] It is interesting to note that social science research has found that a distance of 75 miles or more, or travel time of more than an hour one way, proved to be an impediment to sustaining the relationship of the child with the parent remaining behind, typically the father.

[7] The parties had thereafter agreed to their own visitation schedule. The father currently had time with the child every other weekend and every Wednesday afternoon through Thursday night. The father also at times had taken care of the child during some of the mother’s business trips

[8] For a discussion of more recent literature on the relevance (or not) of the moving parent’s “happiness” and impact on the child, see Footnote 10 (later in this volume) in discussion of Rosenwasser (2016) removal case.

[9] I left in this question, as it turned out to be prescient in light of Bower v. Bournay-Bower (2016), discussed in the last supplement to this volume.

[10] Footnote 6 in the decision revealed that Father was able to have parenting time with their daughter every other weekend and on certain holidays and vacations.

[11] The alternative scenario occurs when parents have by agreement or in fact a parenting plan, whereby they share equal or quite substantial caretaking time with the child(ren). In that instance, the relevant standard, as affirmed by the Court in Mason v. Coleman, 477 Mass 177 (2006), is a single-prong, “best interest of the child,” where any economic, social, or emotional benefit to the party wishing to move is but one factor among several to be considered.

[12] It was interesting to read that Mother had been married to her husband-to-be once before, from 1988-90. That is, this was her re-marriage to the same man.

[13] Footnote 11 states that Mother testified that she would not move to CA if her motion was denied, but she would wait until the twins had graduated from high school. She would continue a bi-coastal relationship with her new husband.

[14] Footnote 9 states that the judge relied, in part, of the testimony of the GAL, who did a thorough investigation. The note further states that in relying partially on the GAL testimony, it was “exclusive of her recommendations.”

[15] The Webster’s definition of paramount is “superior to all others.” It begs the question of why “real advantage” has a primary consideration in the two-pronged test, when repeatedly the Court states that “best interest” is the “paramount concern.” Two things cannot be primary, so it seems that the concurring opinion in Miller (2018) may be prescient in terms of the logical contradiction now inherent in removal cases.

[16] The most recent and thorough paper on this debate argues against ultimate issue recommendations, while supporting opinion on issues that are consistent with the knowledge base of mental health professionals. See Tippins, T. & Wittman, J (2005). Empirical and ethical problems with custody recommendations: A call for clinical humility and judicial vigilance. Family Court Review, 43, 193-222.

[17] Note 2 in the opinion reports that the G.A.L. was a “Next Friend” or Category D professional, appointed to “represent the mother’s interests.” (@593), not the more common Category E (evaluator) or F (investigator) G.A.L. One would have to reason that this related to a concern over Mother’s ability to articulate or represent her own interests.

[18] It is interesting that the idea that, if relocation of a parent for sound reasons would likely increase his/her happiness, then it should follow that these benefits would also be in the best interest of the child – a kind of “trickle down” theory of social capital. This idea was first suggested legally in Hale v. Hale (1981) and then expanded in Yannas. In my first edition of the Casebook (pp. 31-38), I reported on how the Court cited two early studies of children of divorce, Tessman (1978) and Wallerstein & Kelly (1980) in support of the idea that child and custodial parent formed a “new family unit.” In that new system, the Court would consider what is beneficial to that group as a whole. At the same time, I noted that Ahrons (1979) (Casebook @ 33) posited the idea that the resulting family was, in fact, “binuclear,” meaning two family subsystems in which children are connected to a parent in each unit. In addition, even then, survey data was emerging from Furstenburg et. al. (1983) and longitudinal family study data (Mnookin & Maccoby (1992) that relocating more than an hour away from the non-custodial parent resulted in decreased contact and a weakening of the paternal bond. (Casebook, footnotes @38). The Court used the Tessman and Wallerstein-Kelly studies to bolster its argument for “real advantage.” More recently, however, research with college students and adolescents has begun to show that the “real advantage” ripple effect was a legal fiction, in that moving away may not only not be beneficial to the child, but likely detrimental, especially during adolescence (e.g., see Stevenson, M., Fabricius, W., Braver, S., & Cookston, J. (2018). Associations between parental relocation following separation in childhood and maladjustment in adolescence and young adulthood. Psychology, Public Policy, and the Law, 24 (3), 365-78). In addition, that study furthered the research into relocation from two preceding ones. The earlier ones included, Braver, S. L., Ellman, I. M., & Fabricius, W. V. (2003). Relocation of children after divorce and children’s best interests: New evidence and legal considerations. Journal of Family Psychology, 17(2), 206-219; and Fabricius, W. & Braver, S. (2006). Relocation, parent conflict, and domestic violence: Independent risk factors for children of divorce. Journal of Child Custody, 3 (3-4), 7-27. Thus, it may be possible to demonstrate that, as a general rule, relocation more than an hour or 75 miles away is not in a child’s best interests using group data provided by Braver, Fabricius, and Stevenson, as well as earlier studies mentioned above. That said, as with most social science research, it is based on group data and not individual cases and has some self-acknowledged methodological limitations. This begs the question about whether the post-Miller Court will use current and more sophisticated research to reverse course on “real advantage,” just as the Hale-Yannas Court used the then current data to fashion that standard in removal cases.

[19] In note 8, the Court quotes from the trial record in which the judge stated to counsel that the evidence was beginning to show that removal was indicated (at 593).

[20] This writer wonders whether that statement was included to counter the concurring opinion, which urged the Court to modify the two-pronged removal standard such that “best interest” was the only standard, with other factors requiring consideration in the judicial calculus necessary to decide in the individual case.

[21] Of perhaps some relevance was the fact that this couple had not been in this country or Massachusetts for very long and did not intend to stay here when Father completed his education. They appeared to have been here about two years or less before the final separation and filing for divorce. The duration of this case has been about five years, 2013 (divorce filing) to 2018 (appellate decision).

[22] Of note is the language in the discussion where the opinion states, “…the judge concluded that permanently relocating to Germany with the wife was in the child’s best interests…” (@646). It does not specifically state that the judge found the move to meet the “real advantage” standard, nor does it state that the benefits to Mother would improve the quality of life for the child, although that was certainly implied by the discussion of her superior work opportunities and emotional/physical support from family there. I found it odd that Father argued against the use of “real advantage,” but the SJC majority opinion does not specifically reference that.

[23] The Oxford English Dictionary (on-line) defines “touchstone” as “A standard or criterion by which something is judged or recognized.”

[24] I find the logic in this decision confusing. If the “touchstone” is “best interests” (and the “paramount” factor as noted in other removal cases), then “real advantage” should be just one factor to be assessed among others, as the concurring opinion in this case would suggest. It strikes me that only when the two standards are in concert should removal be allowed. In contrast, even where a “real advantage” exists, if it is not in the child’s best interests to move, then relocation should be denied. That was the case in Murray v. Super 87 Mass. App. Ct 146 (2015). I think this is relevant to GALs, as the Court appointments often ask for recommendations in these cases.

[25] It is not necessary to delve into that here, as one can read the summaries of each case in earlier versions of the Casebook.

[26] In other removal cases, a limiting factor has been the extensive travel a child, who moved with Mother, would have to undergo to spend time with Father. Often that travel was cross-country, but in this case it was from Massachusetts to Germany. No mention of the stress of travel for the child was made in this case, although it was not clear that Father would remain in Massachusetts once his graduate degree was finished.

[27] Again, as a non-lawyer, I am struck by the language needed to justify the application of the removal standards. Despite there being a binary choice of standards, the “best interest” one has been called the “touchstone inquiry” as well as the “paramount concern,” but in the instant case to further push the logic, the concurring opinion offers a redundancy, the “ultimate touchstone” inquiry. That is like saying something is “more perfect” or the “ultimate ultimate.”

[28] See case summary under the Expert Testimony section.

[29] “The judge found that the physical force used by the father against the mother included, but was not limited to, pushing, restraining, slapping and grabbing her, and forcing his way past her.  In addition, the father often either threw or broke an item during the course of arguments.  The judge found specifically that the father never punched the mother with a closed fist.” While differentiating types of interpersonal violence has been controversial, the literature has clearly shown that the aggression reported in this case is more often categorized as a form of common-couple violence. It is often a reflection of poor communication and conflict resolution skills, frequently bi-directional, and less likely to be a form of power and control. The instant case only noted husband-to-wife aggression and the judge seemed to suggest this aggression by Father did not rise to the level of severity characterized by “hitting with a closed fist.” A good summary of this literature can be found in Archer, J. (2000). Sex differences in aggression between heterosexual partners: A meta-analytic review. Psychological Bulletin, 126(5), 651-680. This meta-analysis indicates clearly that men and women initiate and engage in lower level aggression (e.g., hit, push. shove, kick) at about the same rate. However, when injuries occur, women are far more likely to sustain them than men.

[30] That expert recommended sole custody of the children to Mother and supervised parenting time to Father.

[31] In the case, there was no report of Mother’s expert testifying to the possibility that Mother’s psychological problems and disciplinary challenges with the children were part of the impact of her being a domestic abuse victim. Depending on the severity and pervasiveness of the abuse, it is not uncommon for the victim to present with such challenges.

[32] The case report did not specify any actual parenting plan, so it is unclear what “substantial” means.

[33] This was the same case.

[35] In their footnote 22, they noted that, notwithstanding their concern for stability, they offered no opinion about any future opinion on custody, parenting time or removal.

[36] Both the Association of Family and Conciliation Courts (now under revision) and the American Psychological Association have promulgated guidelines for parenting coordinators. AFCC standards are available at:

https://www.afccnet.org/Portals/0/AFCCGuidelinesforParentingcoordinationnew.pdf and APA’s can be downloaded at: https://www.apa.org/practice/guidelines/parenting-coordination

[37] Of less importance to the decision was Mother’s refusal to take time during the hearing (or in a break therefrom) to review the e-mails in question that she sent to Father in violation of the PC recommendation. In addition, her demeanor in court was such that the judge did not find her credible with respect to her assertion that she thought the parenting exchange was in one place, when the PC clearly had recommended otherwise.

[38] One can find this at https://www.mass.gov/probate-and-family-court-rules/probate-and-family-court-standing-order-1-17-parenting-coordination

[39] Emphasis mine.

[40] A conservator of the estate is given legal rights to handle and manage financial affairs and make financial decisions on behalf of the person they are representing. The court generally oversees the conservator’s management of an estate, and the conservator needs to obtain authorization for certain transactions, such as selling property or signing a contract. Definition available at: https://search.yahoo.com/yhs/search?hspart=iba&vm=r&hsimp=yhs-3&grd=1&type=gyff_9318_FFW_US&p=what+is+a+conservator+of+an+estate

[41] I appreciate the thoughts of attorneys, Tony Pelusi Jr. and Karen Cohen, on this commentary.