Miller v. Miller

• Court: Massachusetts Supreme Judicial Court
• Decided: January 12, 2018
• Docket: SJC 12298
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-12298

BENJAMIN H. MILLER vs. JOANNA ISABELLA MILLER.

Middlesex. September 6, 2017. - January 12, 2018.

Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

Divorce and Separation, Child custody. Minor, Custody. Parent and Child, Custody.

Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 20, 2013.

The case was heard by Patricia A. Gorman, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Elaine M. Epstein (Richard M. Novitch also present) for the husband. Matthew P. Barach (Melinda J. Markvan also present) for the wife.

CYPHER, J. The husband, Benjamin H. Miller, appeals from a

Probate and Family Court judgment permitting the wife, Joanna

Isabella Miller, to remove and relocate the parties' daughter to

Germany, the wife's home country. We have previously held that 2

when deciding whether removal should be permitted, the

particular criteria depends on whether physical custody of the

child is sole or shared. Where the parent seeking removal has

sole physical custody, his or her removal petition is analyzed

using what has been called the "real advantage" standard

of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). Where,

however, the parents share physical custody, a parent's removal

request is evaluated using the standard articulated in Mason

v. Coleman, 447 Mass. 177 (2006), known as the "best interests"

standard. In this case, no prior custody order existed to guide

the trial judge as to whether the Yannas or Mason analysis

should apply. In such circumstances, we hold that the judge

must first perform a functional analysis, which may require a

factual inquiry, regarding the parties' respective parenting

responsibilities to determine whether it more closely

approximates sole or shared custody, and then apply the

corresponding standard. 1 We also take this opportunity to

1 In the concurrence's view, our adherence to the Yannas- Mason framework when deciding this case constitutes an endorsement of an overly formalistic analysis that constrains judges' discretion. See Mason v. Coleman, 447 Mass. 177 (2006); Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). By incorporating this functional (rather than formalistic) inquiry regarding custody into our existing framework, however, we seek to provide trial judges with more discretion when deciding these cases (beyond that inherent in a judge's application of either Yannas or Mason). And although we do not necessarily disagree with certain of the concurrence's concerns, to the extent we must reexamine the wisdom of the Yannas-Mason framework, we wait 3

emphasize that the best interests of the child is always the

paramount consideration in any question involving removal.

We are satisfied that the judge conducted the requisite

functional analysis here, and in determining whether removal was

in the child's best interests she afforded considerable weight

to the benefits the proposed move to Germany would offer the

wife, the child's primary caregiver. Because we discern no

abuse of discretion or error of law from the judge's

consideration of those benefits, or from her ultimate conclusion

that removal is in the child's best interests, we affirm the

judgment below.

Background. 2 The wife, a German citizen, and the husband, a

United States citizen, were married in Tanzania in September,

2007. Their only child, a daughter, was born in Uganda in

March, 2008. In July, 2011, the family moved to Massachusetts,

where the husband's family resides, so that the husband could

attend graduate school. The parties did not intend to remain in

Massachusetts and planned to leave once the husband received his

graduate degree. The wife had grown up in Germany and had never

to do so in a case where the issue has been raised and briefed by the parties. 2 We present the relevant facts as found by the judge, supplementing them by the record where necessary, and reserving certain details for our discussion of the issues. A.Z. v. B.Z., 431 Mass. 150, 151 (2000). 4

lived in the United States before, and the husband had not

resided here in eighteen years.

The husband ultimately did not attend graduate school,

however, and the parties first separated in April, 2012. During

this separation, which lasted from April to August, the wife

moved with the child to Germany, where they resided with the

wife's mother and the child attended a German public school.

The wife returned to Massachusetts with the child that August in

an attempted reconciliation, but the parties separated for the

final time in September, 2012. The husband filed for divorce in

May, 2013, citing an irretrievable breakdown of the marriage and

requesting shared custody of the child. The wife counterclaimed

shortly thereafter, seeking sole custody of the child and

requesting permission to permanently remove her to Germany.

Among the relevant facts found by the judge was the

determination that the "[w]ife has been [the child]'s primary

caregiver since birth," and has continued in that role following

the parties' separation. The wife cared for the child when she

was an infant, and is now the parent who "arranges and attends

her medical appointments," "cares for [the child] when she is

ill," "purchases the majority of her clothing, and attends all

parent-teacher conferences." The judge also found that although

the "[h]usband is not seeking sole physical custody of [the

child,] and does not propose that he should be her primary 5

caregiver," the husband does participate in certain parenting

tasks, and he and the child have a loving relationship.

Following their divorce filings, the parties filed a

stipulation in the trial court stating that they "shall share

custody" of the child. By its terms, the husband, who lives in

an apartment in Watertown, has the child overnight on Mondays

and Wednesdays; he also has her every Saturday, and alternates

each week between dropping the child off with the wife that

Saturday evening, or the following evening on Sunday. The wife

has the child at all other times at the couple's former marital

residence in Somerville, where the wife still resides. 3 In

practice, however, the husband often travels for work, and when

he does he communicates with the child infrequently, and he

misses parenting time that he has not sought to make up. The

judge also found that "the parties struggle to communicate

effectively regarding parenting issues," and that the husband

does not usually allow the wife to speak with the child when the

child is in his care.

Despite their impressive professional credentials, 4 the

husband and wife have both struggled financially since they

3 It is uncontested that the stipulation establishes an approximate split of sixty per cent-forty per cent in parenting time, with the wife receiving the greater amount. 4 The husband earned degrees from Harvard University and the University of Chicago, and has extensive experience working for 6

arrived in Massachusetts, and the judge concluded that their

current parenting arrangement is "financially untenable." The

husband's salary from his current position at a Cambridge-based

nonprofit is insufficient to provide for the wife and the child;

he cannot meet his current expenses, which include weekly child

support payments to the wife and paying for the wife and the

child's health insurance. The judge found that the wife is

likewise "unable to provide for [the child] in Massachusetts."

Despite her good-faith efforts to find a job -- she has applied

for over 400 positions -- the wife has been unable to find one

commensurate with her experience. At the time of trial she was

working part-time as a kitchen assistant making fourteen dollars

per hour; beyond that, her income consisted of the husband's

child support payments, supplemental nutrition assistance

program benefits for the child, and periodic financial support

from both the husband's and her own mother. 5

Prior to trial, the wife was offered a well-paying job in

Germany, which the judge found would enable the wife "to support

herself and [the child] without child support from [the

h]usband." Beyond a livable salary, its benefits include health

nongovernmental organizations. The wife likewise holds two degrees, speaks three languages, and specializes in public relations in the Middle East region. 5 The judge found that the wife has borrowed over 100,000 euros from her mother, who "has liquidated most of her private retirement fund" to support her daughter. 7

insurance and "the ability to work from home most of the time."

The wife expressed her intention of accepting the position if

her requests for custody and removal were granted. In contrast

with Massachusetts, where the wife lacks any family or friends,

a return to Germany would place the wife among her extended

family. This includes the wife's mother, with whom the child is

especially close. The child has already spent considerable time

in Germany as well -- she has visited at least ten times since

birth, and has attended German schools for two extended periods.

The child is fluent in German, has a German passport, and has

kept in regular contact with her family and friends there.

Following a three-day trial, the judge concluded that

permanently relocating to Germany with the wife was in the

child's best interests and granted the wife's requests for

physical custody and removal. The judgment granted the husband

"parenting time with [the child] during three of the four annual

vacations from school in Germany, including six consecutive

weeks during each summer vacation," as well as "additional

parenting time with [the child] in Germany upon reasonable

notice to [the w]ife by agreement." The husband appealed from

the judgment, and we transferred his case from the Appeals Court

on our own motion. 8

Discussion. The husband challenges the judge's removal

order on two grounds. 6 First, he argues that the judge erred in

applying the "real advantage" analysis of Yannas, applicable

where a parent seeking removal has sole physical custody of his

or her child. The husband contends that because the parties

shared physical custody of the child, the judge should have

applied the "best interest" standard articulated in Mason.

Second, the husband argues that even if the judge properly

employed the Yannas standard, she nevertheless abused her

discretion in concluding that removal is in the child's best

interests. Before engaging the husband's arguments, we briefly

review the legal framework for evaluating removal petitions in

the Commonwealth.

1. Applicable law. a. G. L. c. 208, § 30. General Laws

c. 208, § 30, governs removal from the Commonwealth of children

of divorced parents where one parent seeks to relocate without

the consent of the other parent. It provides that "[a] minor

child of divorced parents who is a native of or has resided five

years within this commonwealth . . . shall not . . . be removed

6 While the husband's notice of appeal states that he appeals the lower court judge's determinations as to both custody and removal, his brief focuses solely on the removal issue. Given the husband's focus on that issue, and the fact that "[t]he custody issues in this case are bound up with [the wife's] request to remove the children from the Commonwealth," Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 138-139 (2009), we likewise fix our attention on the removal issue to resolve the husband's appeal. 9

out of this commonwealth . . . without the consent of both

parents, unless the court upon cause shown otherwise orders."

G. L. c. 208, § 30. 7 "Upon cause shown" means that removal is in

the best interests of the child. Yannas, 395 Mass. at 711. The

statute is intended to "preserve the rights of the noncustodial

parent and the child to maintain and develop their familial

relationships, while balancing those rights with the right of

the custodial parent to seek a better life for himself or

herself." Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775

(2006), citing Yannas, supra at 712.

We note at the outset that the removal statute does not, by

its terms, apply to the parties' daughter: she was born in

Uganda, so she is not "a native" of the Commonwealth; likewise,

she had "resided" here for less than five years when the wife

7 Despite the removal statute's longevity -- it was first enacted in 1842 -- the substantive case law and principles did not begin to develop until the 1970s and 1980s. Earlier cases simply acknowledged the statute's import in light of its plain meaning. See, e.g., Hersey v. Hersey, 271 Mass. 545, 555 (1930) ("It is plain also that the respondent, by taking the child out of the Commonwealth, has not abided by the terms of [§ 30]"). This court first interpreted the statutory language in Rubin v. Rubin, 370 Mass. 857, 857 (1976), where we held that the phrase "upon cause shown" means the best interests of the child. Even as of 1981, however, the Appeals Court observed that "Massachusetts authorities have not discussed in detail the factors to be weighed in deciding questions of removal." Hale v. Hale, 12 Mass. App. Ct. 812, 815 (1981). Hale was the first Massachusetts case to explore those factors in detail, as well as the first to adopt a "real advantage" analysis. Id. at 815- 820. In doing so, Hale set the stage for this court's first in- depth discussion of the factors to be considered in evaluating a removal petition in Yannas. 10

filed her removal request. This does not mean, however, that

the removal principles developed in cases under § 30 are not

relevant or applicable here. This court previously has applied

(or endorsed the application of) those principles in other

circumstances where not every component of the removal statute

was satisfied. See, e.g., Smith v. McDonald, 458 Mass. 540, 546

(2010), citing Wakefield, 67 Mass. App. Ct. at 775 (applying

§ 30 principles to child of unmarried parents, despite

recognition that "a statute governing divorced children is not

applicable directly to nonmarital children," in light of "the

legal equality of nonmarital children"); Smith, supra at 546

n.13, quoting Altomare v. Altomare, 77 Mass. App. Ct. 601, 602-

603 (2010) (although § 30 "applies only to relocation outside

the Commonwealth, '[w]e apply out-of-State removal principles to

in-State moves,' pursuant to common law, in cases where the move

would disrupt significantly existing parenting arrangements,

such as when the move is long-distance"). 8 In light of the

considerable time the child has spent in Massachusetts, the

meaningful ties she has developed while here, and the fact that

the wife's proposed move would likewise "disrupt significantly

existing parenting arrangements," Smith, supra at 546 n.13, we

8 This approach is consistent with "the Commonwealth's broad policies of protecting the family unit and promoting the best interests of children." Upton v. JWP Businessland, 425 Mass. 756, 759 (1997). 11

analyze the wife's removal request using the same principles

developed in cases under the removal statute. 9

b. Removal analysis. The "touchstone inquiry" is always

whether removal is in a child's best interests. Smith, 458

Mass. at 544. This question "can be resolved only on a case by

case basis," Yannas, 395 Mass. at 711, as the best interest

standard "is one grounded in the particular needs and

circumstances of the individual child in question" (citation

omitted). Mason, 447 Mass. at 183-184. Still, this court has

established certain guideposts to aid the judge's determination

of this often difficult question. Removal petitions in the

Commonwealth are evaluated under one of two analyses, depending

on the physical custody of the child. 10 Where one parent has

sole physical custody, a judge must evaluate that parent's

request to remove the child under the "real advantage" analysis

set forth in Yannas, supra at 711-712. Where, on the other

hand, the parents share joint physical custody, a judge must

apply the "best interests" analysis articulated in Mason, supra

9 It is also worth noting the children in Mason were, like the child in this case, "not born in the Commonwealth" and "had not resided in the Commonwealth for five years when the mother requested permission for removal." Mason, 447 Mass. at 183 n.9. 10 "Physical custody" refers to a child's residence with and supervision by one or both parents; it may be either sole or shared physical custody. G. L. c. 208, § 31. This is distinct from "legal custody," which refers to the "right[s] and responsibilit[ies] [of parents] to make major decisions regarding the child's welfare." Id. 12

at 178. 11 "The main distinction" between these analyses "comes

down to the weight that should be assigned to the benefits that

relocation would provide the parent seeking to move." Prenaveau

v. Prenaveau, 75 Mass. App. Ct. 131, 139 (2009). 12

c. Evaluating custody. In deciding the applicable removal

standard where there is no custody order the judge must first

evaluate the parties' custodial arrangement and determine

whether it more closely resembles sole or shared custody. Sole

physical custody "generally reflects that the children reside

with only one parent 'subject to reasonable visitation by the

other parent.'" Mason, 447 Mass. at 182, quoting G. L. c. 208,

§ 31. Shared physical custody, on the other hand, "contemplates

that 'a child shall have periods of residing with and being

under the supervision of each parent . . . assur[ing] . . .

frequent and continued contact with both parents.'" Mason,

supra, citing G. L. c. 208, § 31. Compare Abbott v. Virusso, 68

Mass. App. Ct. 326, 327 (2007), S.C., 450 Mass. 1031 (2008)

11 We reiterated the distinction between these two analyses most recently in Smith v. McDonald, 458 Mass. 540 (2010). There we noted that "[w]hen a parent has sole custody of a child . . . the analysis articulated in Yannas . . . applies" to that parent's removal request (citation omitted). Id. at 547. We observed that "[a] different analysis, more protective of the interests of the parent who is not relocating, is appropriate when the parents share joint physical custody." Id. at 547 n.14, citing Mason, 447 Mass. at 184-185. 12 Yannas recognizes that the best interests of a child can be greatly affected by the happiness of the primary caregiver where care or custody is not equal. Yannas, 395 Mass. at 710. 13

(mother had sole physical custody of son where son resided

primarily with her, and mother was his "primary care parent"),

with Mason, supra at 178-179 (parents shared physical custody

where "each parent took the part of a 'primary caretaker'"

during marriage, and they "divided physical custody of the

children approximately equally" after divorce).

In determining which manner of custody is present in a

given case, the judge typically will look to an existing custody

order between the parties. Even where there is such an order,

though, the judge is still required to look beyond its

characterization of custody (e.g., "the parties shall share

physical custody"), in order to examine "the functional

responsibilities and involvement of each parent" with their

child in practice. Altomare, 77 Mass. App. Ct. at 605. 13

13 This functional assessment is necessary for two reasons. First, "custody judgments issued by the Commonwealth's courts do not consistently utilize" the categorical phrases "sole physical custody" or "shared physical custody" "as defined in G. L. c. 208, § 31." Abbott v. Virusso, 68 Mass. App. Ct. 326, 329 n.8 (2007), S.C., 450 Mass. 1031 (2008), and cases cited. As a result, "such categorizations . . . are utilized inconsistently, [and] can obscure more than they illuminate." Altomare v. Altomare, 77 Mass. App. Ct. 601, 605 (2010). Second, even where a custody order renders such a "categorical custodial determination," Woodside v. Woodside, 79 Mass. App. Ct. 713, 717 (2011), the actual practice of the parties may differ from what the order specifies. See, e.g., Altomare, supra at 606 (although divorce judgment provided for "shared legal and physical custody" of couple's children, "as a functional matter" caring for children was "the primary responsibility of the wife"); Abbott, supra at 327 (despite fact that divorce judgment provided that parties would "share physical custody of their 14

See id. at 605-606, and cases cited ("Our cases make clear that,

in the context of spousal relocation, the label we attach to

custodial status results from a factual inquiry").

In other cases, such as the instant one, there is no prior

custody order to refer to, as a parent's removal request is

concurrent with their divorce complaint. Still, the same

principles apply; in deciding the appropriate removal standard,

the judge must focus on "functional," as opposed to technical,

"divisions in caregiving and parenting

responsibilities." Woodside v. Woodside, 79 Mass. App. Ct. 713,

717 (2011). At this stage, "the judge must make a 'factual

inquiry' to determine the approximate custodial arrangement and

then apply the corresponding test" (citation omitted). Id.

i. Sole custody and Yannas. As we explained in Yannas,

where one parent has sole physical custody, the interests of

that child are "so interwoven with the well-being of the

custodial parent" that "the determination of the child's best

interest requires that the interests of the custodial parent be

taken into account" (citation omitted). Yannas, 395 Mass. at

710. Yannas involves a two-part inquiry. First, a judge must

examine "whether there is a good reason for the move, a 'real

advantage'" to the parent. Id. at 711. This requires the

children," in practice son "continued to reside primarily with the mother," who was "the son's 'primary care parent'"). 15

custodial parent to establish "a good, sincere reason for

wanting to remove to another jurisdiction." Id. At this stage

the judge must consider "the soundness of the reason for moving,

and the presence or absence of a motive to deprive the

noncustodial parent of reasonable visitation." Id.

Second, if the custodial parent satisfies that threshold

inquiry, the judge must then "consider[] collectively" the

interests of the custodial parent, the noncustodial parent, and

their child, and balance those interests to determine whether

removal is in the best interests of the child. Id. at 712.

Pertinent considerations at this step include "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." Id. at 711. "It is

important to emphasize that consideration of the advantages to

the custodial parent does not disappear" at this second step,

"but instead remains a significant factor in the

equation." Pizzino v. Miller, 67 Mass. App. Ct. 865, 870

(2006). Here the judge should also consider "[t]he

reasonableness of alternative visitation arrangements." Yannas, 16

395 Mass. at 711. See Dickenson v. Cogswell, 66 Mass. App. Ct.

442, 447-453 (2006) (explaining appropriate consideration and

weighing of interests under Yannas); Rosenthal v. Maney, 51

Mass. App. Ct. 257, 268-272 (2001) (same).

ii. Joint custody and Mason. In Mason, we explained that

"[w]here physical custody is shared, the 'best interest'

calculus pertaining to removal is appreciably different from

those situations that involve sole physical custody." Mason,

447 Mass. at 184. Under Mason, "[t]he advantage to the moving

parent becomes merely a relevant factor in the over-all inquiry

of what is in the child's best interests." Wakefield, 67 Mass.

App. Ct. at 776. This is so because with shared custody, "[n]o

longer is the fortune of simply one custodial parent so tightly

interwoven with that of the child; [here] both parents have

equal rights and responsibilities with respect to the child[].

The importance to the child[] of one parent's advantage in

relocating outside the Commonwealth is greatly

reduced." Mason, supra at 184-185. See Smith, 458 Mass. at

547, n.14 (Mason is "more protective of the interests of the

parent who is not relocating"); Prenaveau, 75 Mass. App. Ct. at

140 (Mason makes it "more difficult for the parent to justify

the uprooting of the child").

2. The standard applied by the judge. Turning to the

facts of this case, we must first determine which of the two 17

removal standards the trial judge applied below. In certain

respects, it appears the judge thought she could apply neither.

More than once during the trial proceedings the judge declared

that she would apply a general "best interest" standard to the

removal issue, on the ground that "there is no custody order." 14

And in her opinion authorizing removal, she explained that the

two-step analysis of Yannas applies "if there is a current court

order granting one party sole physical custody." As we have

stated, although an existing custody order is of course a common

feature of removal cases, the fact that one does not exist does

not preclude the application of the appropriate removal

standard. 15,16

14 The judge first said this in her order on the parties' joint motion seeking clarification as to the standard the guardian ad litem should apply to the removal issue. She wrote that "[a]lthough the [guardian ad litem] shall gather facts and report as to [the wife's] advantage by the move, the standard to be used as there is no custody order should be 'best interest.'" The judge then reiterated this point at trial. There is no indication that the judge, when mentioning the "best interest" standard, was referring to the Mason analysis. 15 The husband maintains that the stipulation itself is an existing custody order. The stipulation specifically states that its status as a "[t]emporary [o]rder or [j]udgment" is "subject to the approval of the [c]ourt." There is no indication, however, that the probate judge approved the stipulation because it lacks the judge's signature or some other indicia of court approval. Unlike the judge's various orders, which are reflected on the docket as such, the parties' agreement was docketed only as a "Stipulation of the Parties." And not once during the trial proceedings did the judge refer to the stipulation as an order; indeed, as we just noted, the judge 18

It is clear from the judge's written decision that she

thoroughly examined the parties' allocation of custody and

parenting responsibilities. See Woodside, 79 Mass. App. Ct. at

717. The judge made sixty-one factual findings concerning only

custody, with many addressing how the parties have divided the

child's care. The judge concluded that "[a]lthough [the

h]usband was involved in caring for [the child] during the

marriage, [the w]ife has always been primarily responsible for

her physical and emotional care, as well as day-to-day tasks

such as feeding, clothing, and bathing." More significantly, in

the opinion's section discussing removal, the judge analyzed the

issue solely in terms of the two steps of the Yannas analysis,

concluding that "although G. L. c. 208, § 30, does not apply,

because there is a real advantage to the [w]ife in the proposed

removal, and because the removal is consistent with [the

child]'s best interests, it would bring about the same result if

it did." See Prenaveau, 75 Mass. App. Ct. at 140 (court's

conclusion that Mason was "the proper lens through which to

repeated -- despite the stipulation's existence -- that "there is no court order" regarding custody. 16 Yannas itself involved an instance where there was no prior custody order; there, as here, the wife's removal petition was part of her divorce action. Yannas, 395 Mass. at 705-706. Likewise, there was no earlier custody order in Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 772-773 (2006), in which the mother sought removal while her custody case was still pending. In both cases the courts still proceeded to apply the "real advantage" standard. 19

evaluate the judge's ruling . . . reinforced by the fact that

the judge made no attempt to justify the removal decision using

a Yannas analysis" [citation omitted]). We have already stated

that although the removal statute does not apply directly here,

the same removal principles do, including the "real advantage"

analysis of Yannas. On this score, we agree with the wife

that Yannas, not Mason, is "the proper lens through which to

evaluate the judge's ruling" in this case.

See Prenaveau, supra.

3. The merits. The husband does not challenge the judge's

pertinent factual findings, so we review both her determination

of the applicable removal standard, and her ultimate conclusion

as to whether removal is in the child's best interests, for an

abuse of discretion. Mason, 447 Mass. at 184. "[A] judge's

discretionary decision constitutes an abuse of discretion where

[the appellate court] conclude[s] the judge made 'a clear error

of judgment in weighing' the factors relevant to the decision

. . . such that the decision falls outside the range of

reasonable alternatives" (citation omitted). L.L.

v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The husband first argues that the judge abused her

discretion in applying the "real advantage" analysis

under Yannas. He maintains that because the parties shared

physical custody of the child, the judge should have evaluated 20

the wife's removal petition using the "best interest" standard

of Mason, which affords less weight to the advantages a move

offers the parent seeking removal. In support of his contention

of shared physical custody, the husband relies primarily on the

stipulated parenting plan the parties filed in the trial court

following their respective divorce filings, which states that

the husband and the wife "shall share custody" of the child.

According to the husband, the stipulation, which was "in effect

for over three years as of the trial judge's Judgment,"

allocates parenting responsibilities "almost equally." 17

The judge clearly considered the stipulation, having

detailed its contents both in her recitation of the case's

procedural history and in an individual factual finding. Yet

the judge also found that the husband travels frequently for

work, and when he does he "communicates with [the child]

infrequently" and misses allotted parenting time that he has not

sought to make up. With respect to the parties' parenting

responsibilities, the judge found that the wife has always been

the child's primary caregiver. The husband, in contrast, is

"not seeking sole physical custody of [the child] and does not

propose that he should be her primary caregiver." See,

17 The husband also points to the fact that the guardian ad litem, in her report on the removal issue, characterized the parties' arrangement as "coparenting." The judge was not required to adopt the guardian ad litem's characterization. Mason, 447 Mass. at 186. 21

e.g., Woodside, 79 Mass. App. Ct. at 718 (no abuse of discretion

in applying Yannas where "mother was the primary

caregiver"); Wakefield, 67 Mass. App. Ct. at 776-777 (same).

Likewise, although a hallmark of shared custody is the parents'

"ability and desire to cooperate amicably and communicate with

one another to raise the[ir] child[]," Mason, 447 Mass. at 182,

the judge found that "the parties struggle to communicate

effectively regarding parenting issues, and that [the h]usband

often fails to communicate with [the w]ife." See Katzman

v. Healy, 77 Mass. App. Ct. 589, 596 & n.7 (2010) (questioning

propriety of judge's "Mason-like approach to removal" where

cooperation necessary for shared physical custody was "obviously

not present"); Prenaveau, 75 Mass. App. Ct. at 143 (same). As

we noted, the husband does not contest these findings.

The Mason analysis generally applies where "neither parent

has a clear majority of custodial responsibility" (citation

omitted). Mason, 447 Mass. at 185. Although the terms of the

parties' stipulation may have approximated shared custody, the

judge concluded (in light of the above facts) that in practice,

their custodial arrangement more closely resembled the sole

custody of Yannas. Past cases support the judge's conclusion on

this point. See, e.g., Altomare, 77 Mass. App. Ct. at 602, 606

(wife had sole custody where, despite prior custody order

stating that "[t]he parties shall have shared . . . physical 22

custody," children were "as a functional matter" "under the

primary responsibility of the wife"); Abbott, 68 Mass. App. Ct.

at 327, 330 (applying Yannas to mother's request to remove son

where, despite prior custody order stating that parties were to

"share physical custody of the children," son "continued to

reside primarily with the mother who . . . [was] the son's

'primary care parent'"). Because the judge's decision plainly

does not "fall[] outside the range of reasonable alternatives"

here, L.L., 470 Mass. at 185 n.27, we conclude she did not abuse

her discretion in analyzing the wife's removal petition using

the "real advantage" standard of Yannas.

Turning to the judge's application of the Yannas analysis,

the husband does not argue that the first step of Yannas is not

satisfied -- namely, that there is a real advantage to the wife

in moving to Germany. As the judge found, the wife has secured

a well-paying job, something she has been unable to accomplish

in Massachusetts, despite having "applied for over 400 jobs,"

and her entire support system is there. There is also nothing

to suggest that the wife's move is motivated by a desire to

deprive the husband of parenting time with the child. Yannas,

395 Mass. at 711.

Instead, the husband only challenges the judge's subsequent

conclusion, formally the second step of the Yannas analysis,

that removal is in the child's best interests. The husband 23

contends that the judge abused her discretion in reaching that

conclusion because she failed to consider adequately how removal

would impact or benefit the child, and failed to consider

reasonable alternative visitation arrangements. To recount, at

this stage the judge must collectively consider the interests of

all those involved -- child, custodial parent, and noncustodial

parent -- and balance those interests in order to determine

whether removal is in the best interests of the

child. Yannas, supra at 712. The "judicial safeguard" of each

person's interest "lies in careful and clear fact-finding." Id.

a. Interests of the child. In assessing the interests of

the child, a judge is bound to consider "whether the quality of

a 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 effect of the move on "the

child's association with the noncustodial parent," as well as

its effect on "the emotional, physical, or developmental needs

of the child." Yannas, 395 Mass. at 711. See Dickenson, 66

Mass. App. Ct. at 449-450.

With respect to the effect of the move on the child's

quality of life and her "emotional, physical, or developmental

needs," the judge found that in Germany the child would be

attending better schools, and would again be treated by her

long-time pediatrician. She found further that in Germany the 24

child would "have support from the loving extended family with

whom she has had frequent and extensive contact since birth,"

including her maternal grandmother, with whom the child "is very

close." 18 Although the judge observed that the child struggles

during transitions between the parties' households, nothing in

the record suggests that she would likewise struggle with a move

to Germany. To the contrary, the child has been visiting the

country throughout her life, including for extended periods.

She is fluent in German, has already attended German schools,

and keeps in touch with her friends there (who would also be her

classmates if she were to return to Germany).

More significantly, the judge observed that the child's

quality of life will be "particularly" improved "through the

impact of the improvement in [the w]ife's quality of life." In

Massachusetts, the wife could not meet her expenses, and lived

in poverty. By contrast, the judge found that the wife's well-

paying job in Germany would permit her to support herself and

18 The husband protests that the judge failed to find that the child's connections in Germany are in any way more substantial than her connections in Massachusetts. Indeed, the judge found that the child and the husband spend meaningful time with each other and the husband's family. But "[t]here is nothing in the record to indicate that, here, those relationships are so important to [the child's] emotional well- being that they deserve primacy over [her] relationship with [her] mother, who ha[s] been the primary custodial parent throughout [the child's] life." See Rosenthal v. Maney, 51 Mass. App. Ct. 257, 272 (2001) (reversing judgment denying removal). 25

the child, while continuing to fulfil her role as the child's

primary caregiver, as the position would enable the wife "to

work from home most of the time." Compare Wakefield, 67 Mass.

App. Ct. at 777 (mother's "income will increase, and she will be

able to work from home and spend more time with her daughter"),

and Rosenthal, 51 Mass. App. Ct. at 268 (family's financial

situation "greatly improved" by move), with Dickenson, 66 Mass.

App. Ct. at 449 ("The child's financial security would . . . be

diminished by the move," as it placed mother in "a less-stable

employment relationship"). In addition, the wife has virtually

no support network in Massachusetts because she "has few

acquaintances" here and "feels lonely and isolated," but in

Germany she would reunite with her supportive extended family.

The trial judge concluded that this improvement in the wife's

emotional situation would also "benefit [the child]

significantly." See Pizzino, 67 Mass. App. Ct. at 870 ("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").

Notwithstanding the direct and indirect benefits a move to

Germany would offer the child, the judge also found that the

child has a "loving relationship" with her father, and

recognized that moving to Germany would have a "detrimental

effect" on that relationship. 26

b. Interests of the custodial parent. "Because the best

interests of a child are so interwoven with the well-being of

the custodial parent, the determination of the child's best

interest requires that the interests of the custodial parent be

taken into account." Yannas, 395 Mass. at 710. The judge

thoroughly considered the wife's interests in moving to Germany.

The judge found that despite the wife's professional background

and diligent efforts, she has been unable to find a job in

Massachusetts commensurate with her education and experience,

rendering her continued presence here unsustainable. 19 The wife

has been offered a position in Germany with a salary that would

allow her to "support herself and [the child] without child

support from [the h]usband," and benefits that include use of a

company vehicle, ample vacation time, health insurance and

retirement benefits, and the ability to work from home most of

the time. As mentioned, the judge concluded that a move to

Germany offers the wife significant improvements to her

financial and emotional health. See, e.g., Williams v. Pitney,

19 It is noteworthy that although the wife works in the highly-specialized field of public relations in the Middle East (the trial judge observed this made it "unsurprising that her job search has been difficult"), the wife also applied for positions for which "she was overqualified, such as office assistant positions," and even looked for work "in Germany or the Middle East that would allow her to work from Massachusetts." The trial judge thus concluded that the wife made "a good faith effort" to find gainful employment in Massachusetts. 27

409 Mass. 449, 456 (1991) (mother would benefit from move,

"would be close to friends and relatives who would provide

emotional support after the move, and . . . would be better able

to secure employment").

c. Interests of the noncustodial parent. Last, the judge

must consider the interests of the noncustodial parent. Yannas,

395 Mass. at 711. This includes assessing "whether reasonable

'alternative visitation arrangements' might achieve ongoing and

meaningful contact appropriate to the

circumstances." Rosenthal, 51 Mass. App. Ct. at 271,

quoting Yannas, supra.

The judge found that the husband cares for the child

deeply, and recognized the "detrimental effect" separation would

have on their relationship. She also acknowledged the husband's

concerns "regarding his ability to communicate with [the child]

on a regular basis given the six-hour time difference between

Massachusetts and Germany," as well as the various travel costs

the husband would incur during his visitation periods. The

judge concluded that, in addition to frequent telephone and

Internet contact, aligning the husband's visitation with the

child's extended vacation periods will lessen the detrimental

effects of their separation, by providing them with lengthier,

and hence more meaningful, visits together. Contrast Dickenson,

66 Mass. App. Ct. at 449, 451 (under mother's proposed 28

visitation schedule, which would entail "frequent 'red-eye'

flights" between Massachusetts and California, "someone would

inevitably be tired and stressed . . . thereby diminishing the

quality of the visits"). In light of the travel costs the

husband would incur in facilitating visitation with the child,

the judge did not order child support.

d. Balancing the interests. After consideration of the

parties' and child's respective interests, the judge must

balance those factors to determine whether removal is in the

best interests of the child. Yannas, 395 Mass. at 711-712. A

judge's determination of the best interests of the child

represents a "classic example of a discretionary decision" in

which "much must be left to the trial judge's experience and

judgment" (citation omitted). Adoption of a Minor (No. 2), 367

Mass. 684, 688 (1975).

We discern no abuse of discretion with respect to the

judge's consideration and balancing of the interests at stake

here. The judge recognized that she was faced "with two

difficult alternatives." Granting the wife's removal request

would have the negative impact of permanently altering the

child's relationship with her father, who cares for her deeply.

Yet the judge also determined, on the basis of uncontested

factual findings, that "allowing the current shared parenting

schedule is financially untenable for the parties." Financial 29

struggle -- "poverty," as the wife described her current

lifestyle -- is in the interest of no child. As in Yannas, a

move to Germany "would be to the advantage of the wife,

financially, emotionally, and socially," and would inure to the

child's benefit as well. Yannas, 395 Mass. at 712. Removal has

been deemed appropriate in similar circumstances in past cases.

See, e.g., Williams, 409 Mass. at 456 (affirming grant of

removal where mother "would be close to friends and relatives

who would provide emotional support after the move, and . . .

the mother would be better able to secure

employment"); Wakefield, 67 Mass. App. Ct. at 774, 777-778

(removal allowed where mother, child's primary caretaker, sought

to return to home country where she "would enjoy greater family

support," and "would be working at an increased salary" in

position that would enable her "to work from home and spend more

time with her daughter"). 20 Accordingly, we affirm the judgment

of the trial judge in its entirety.

So ordered.

20 In contrast, these are not the circumstances in which removal has been deemed not to be in a child's best interest. See, e.g., Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 449, 451, 453 (2006) (affirming denial of removal by mother, who was custodial parent, where move would diminish child and mother's financial security, "would take [mother] away from her support network of friends and family," and would require child to take "frequent 'red-eye' flights across the country, including trips by himself with layovers"). GANTS, C.J. (concurring, with whom Gaziano, J., joins). I

agree with the court that the judge here did not abuse her

discretion in concluding that removal from the Commonwealth is

in the child's best interests. I write separately only because

I disagree with the artificially binary decision-making

framework that has emerged from Yannas v. Frondistou-Yannas, 395

Mass. 704 (1985), and Mason v. Coleman, 447 Mass. 177 (2006),

and that the court applies today. Under that framework, the

removal analysis depends on whether the parent seeking to remove

the child has "sole physical custody" of the child, in which

case the judge must follow the "real advantage" analysis

in Yannas, or whether the parents share "joint physical custody"

of the child, in which case the judge must follow the "best

interests" analysis in Mason. I believe that the ultimate

"touchstone" in all removal cases, whether one parent has sole

physical custody or both parents share physical custody, is

always the best interests of the child. Smith v. McDonald, 458

Mass. 540, 544 (2010), quoting Custody of Kali, 439 Mass. 834,

840 (2003). I would therefore discard the Yannas-Mason

framework in favor of a single, uniform standard -- the best

interests of the child -- to be applied to all removal cases,

recognizing that the "real advantage" to the parent seeking

removal is a factor that must be considered under that standard. 2

The current binary decision-making framework has two

substantial flaws. First, it places too much weight on the

threshold determination as to whether one parent has "sole

physical custody," meaning that "[the] child . . . reside[s]

with and [is] under the supervision of one parent, subject to

reasonable visitation by the other parent," G. L. c. 208, § 31;

or both parents have "shared physical custody," meaning that

"[the] child . . . ha[s] periods of residing with and being

under the supervision of each parent." Id. This is a false

dichotomy, which fails to reflect the many variations on the

theme of sole and joint physical custody that often play out in

our increasingly complicated lives. In many cases, as here,

custody is shared, but not equally, and the percentage of time a

child spends with a parent may vary over time, depending on a

parent's work and travel obligations, or perhaps on a parent's

(or grandparent's) health.

We have seen judges struggle to fit cases into one of these

two categories. See, e.g., Prenaveau v. Prenaveau, 75 Mass.

App. Ct. 131, 140 (2009) ("While the co-parenting arrangement

. . . does not fit neatly into the traditional taxonomy, it can

perhaps best be understood as an attempt at approximating joint

custody . . . "). Recognizing the inherent inflexibility of

these two categories, our appellate courts have held that

whether a physical custody arrangement is "sole" or "joint" 3

should be determined with respect to "the functional

responsibilities and involvement of each parent." Altomare

v. Altomare, 77 Mass. App. Ct. 601, 605 (2010). This is a wise

approach. But any such nuanced, functional assessment is

severely limited by the strict binary framework the court

applies today. Ultimately, a judge will have to categorize a

physical custody arrangement as either "sole" or "joint," which

will in turn mandate the analysis the judge must follow.

The inflexibility of the Yannas-Mason framework is on full

display in this case where, as in many cases, the parenting

arrangement resists easy classification. Unlike Yannas, this is

not a case where one parent has sole physical custody. Yannas,

395 Mass. at 705, 706 (mother awarded sole physical custody).

Nor is it a case like Mason, where the parents share physical

custody equally. Mason, 447 Mass. at 179 (parents divided

physical custody "approximately equally" pursuant to

stipulation). Here, pursuant to the parties' stipulated

parenting plan, the child spends approximately sixty per cent of

her time with her mother and forty per cent with her father. In

practice, the percentage of time spent with the mother was

higher because, although the father has a loving relationship

with the child, he travels frequently. Based on these and other

facts, the judge decided that the mother is the child's primary

caregiver and analyzed it -- as she is required to do under the 4

court's binary framework -- as if it were a straightforward,

uncomplicated case where one parent does in fact have sole

physical custody.

The second flaw with the Yannas-Mason framework is that it

invites the misperception that the best interests of the child

is "the touchstone inquiry" only where there is joint physical

custody, Smith, 458 Mass. at 544, quoting Custody of Kali, 439

Mass. at 840, and that the "real advantage" to the parent

seeking removal is the more important consideration where one

parent has sole physical custody. In endorsing this framework,

the court has lost sight of the guiding principles behind our

two decisions in Yannas and Mason.

In Yannas, 395 Mass. at 711, we emphasized that "the

central question" in removal cases is "how [the] 'best

interests' [of the child] are to be determined." We applied the

"real advantage" standard only because we believed that it was

the most accurate reflection of the child's best interests under

those circumstances; we recognized that, where one parent has

sole physical custody, "the best interests of [the] child are so

interwoven with the well-being of the custodial parent, [that]

the determination of the child's best interest requires that the

interests of the custodial parent be taken into account." Id.

at 710, quoting Cooper v. Cooper, 99 N.J. 42, 54 (1984). 5

In Mason, 447 Mass. at 184, we took a different approach to

our determination of the child's best interests, emphasizing

that "[w]here physical custody is shared, the 'best interest'

calculus pertaining to removal is appreciably different,"

because the child's best interests are "[n]o longer . . . so

tightly interwoven" with the interests of one parent over

another.

Together, these two decisions reiterate what judges have

always known: that when determining the best interests of the

child, facts matter. "The 'best interest' calculus" is a

dynamic one that must be adapted to each case, assigning

different weight to different factors depending on the facts.

In removal cases, whether the parent seeking removal can show a

"real advantage" from the move is only one among many factors

contributing to the child's best interest; it is often

important, but may not be in every case. Yannas and Mason do

not announce separate standards but are merely applications of

the same standard, which should in every case guide our

analysis: whether removal is in the best interests of the

child. See Prenaveau, 75 Mass. App. Ct. at 139 ("[Yannas

and Mason] do not articulate distinctly different tests. In

each case, one question was preeminent: is removal in the best

interests of the children?"). 6

In Yannas, 395 Mass. at 711, we recognized that removal

cases "present difficult choices." Faced with these choices, we

declined to "apply a fixed but arbitrary rule," preferring

instead to resolve the issues "on a case by case basis." Id.

It is ironic that, today, the court invokes our decision

in Yannas to preserve a fixed and inflexible framework for

resolving these difficult cases.

I emphasize that my disagreement with the court's approach

does not mean I disagree with the outcome of this case. Because

the second step of the Yannas analysis requires a determination

of the child's best interests, a judge is usually able --

whether under Yannas or Mason -- to reach the decision that best

serves the interests of the child. See, e.g., Dickenson

v. Cogswell, 66 Mass. App. Ct. 442, 449, 453 (2006) (analysis

under second step of Yannas "independently establishe[d] that

removal was not justified," because not in best interests of

child). See also Yannas, 395 Mass. at 711 ("That the move is in

the best interests of the custodial parent does not mean that it

is automatically in the best interests of the child"). Indeed,

that is exactly what happened here. Having applied the "real

advantage" standard, the judge ultimately resolved the case

under what I believe is the proper analysis, finding that

removal was in the child's best interests. But judges should 7

not be required to engage in analytical gymnastics in order to

arrive at the best outcome.

Nor can we ignore the risk that this formalistic approach

will, in some cases, derail the proper analysis. How a case is

categorized under the Yannas-Mason framework can have serious

consequences for the parties involved, in that it alters the

balance that must be struck between the interests of each

parent. Under Yannas, it is the parent who seeks removal whose

interests are accorded greater weight. Prenaveau, 75 Mass. App.

Ct. at 139. But under Mason, it is the opposite: the parent

who opposes removal enjoys the "more protective"

standard. Smith, 458 Mass. at 547 n.14. Thus, whether the

child can be removed may very well hinge on which side of an

unrealistic binary -- "sole physical custody" or "joint physical

custody" -- the case happens to fall.

To abandon the Yannas-Mason framework would not mean that

we are abdicating our responsibility to provide appellate

guidance to judges who must make difficult removal decisions.

In Yannas, apart from the "real advantage" to the parent seeking

removal, we identified several other relevant factors that must

be considered, including "whether the quality of the child's

life may be improved by the change . . . , the possible adverse

association with the noncustodial parent, and the extent to 8

which moving or not moving will affect the emotional, physical,

or developmental needs of the child." Yannas, 395 Mass. at 711.

How these factors are to be balanced will depend on the facts of

each case.

Where the form of the common law no longer serves its

function, it is this court's responsibility to change it. This

case well illustrates the limits of the Yannas-Mason framework;

we should not allow it to linger any longer. It is time that we

abandon it and resolve all removal cases under the same

standard: whether removal is in the best interests of the

child. As part of that "best interests" determination, a judge

should be permitted to consider the "real advantage" of the move

to the parent seeking removal of the child, regardless of

whether that parent has sole or joint physical custody, and

accord that factor as much weight as is warranted by the

specific facts of the case. As the court acknowledges, the

determination whether removal is in the child's best interests

is a "classic example of a discretionary decision," in which

"much must be left to the trial judge's experience and judgment"

(citation omitted). Adoption of a Minor (No. 2), 367 Mass. 684,

688 (1975). But in its strict adherence to the Yannas-Mason

framework, the court chooses to constrain that equitable

discretion, and in a way that interferes with, rather than

assists, sound decision-making.