Wakefield v. Hegarty

857 N.E.2d 32, 67 Mass. App. Ct. 772, 2006 Mass. App. LEXIS 1217
CourtMassachusetts Appeals Court
DecidedNovember 27, 2006
DocketNo. 06-P-1123
StatusPublished
Cited by17 cases

This text of 857 N.E.2d 32 (Wakefield v. Hegarty) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wakefield v. Hegarty, 857 N.E.2d 32, 67 Mass. App. Ct. 772, 2006 Mass. App. LEXIS 1217 (Mass. Ct. App. 2006).

Opinion

Graham, J.

James Hegarty (father) appeals from a Probate and Family Court decision granting authority to Laurie Wake-field (mother) to relocate herself and the parties’ minor child to St. Croix in the United States Virgin Islands under G. L. c. 208, § 30, and granting her sole physical and legal custody of the child. The father contends that the findings of fact made by the judge are clearly erroneous and should be set aside; that the judge erred as a matter of law and abused her discretion in determining that there was a real advantage to the mother in [773]*773moving to St. Croix; that the judge abused her discretion in determining that the mother’s move to St. Croix was in the best interest of the child; and that the judge abused her discretion in awarding the mother sole legal custody of the child.

1. Background. We summarize the findings of fact made by the judge following a contested trial as follows. The mother and father met in 1989 and lived together until August, 2002, when they separated. The parties never married but had a 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 was helpful in caring for her during this period. However, since August, 2002, the child has lived solely with the mother, who has been 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 that was incorporated into a temporary order on that date. The temporary order granted the mother sole physical custody of the child, but granted shared legal custody to both parties. The order also granted the father visitation 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.”1

Around November of 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 reside. After investigation, a court-appointed guardian ad litem recommended that the mother be allowed to relocate to St. Croix with the child.

[774]*774In St. Croix, the mother will continue working for her current employer in a new position as a “contract worker.” In that position, she would work at home and be more available to the child. Moreover, she would be working at an increased salary. In addition, the mother would enjoy greater family support. The maternal grandfather is a Lutheran minister who is set to retire in November, 2006. The maternal grandmother, who is retired, has a bachelor of science degree in early childhood development and a master’s degree in library sciences. Both are very active in the St. Croix community. The maternal aunt, a marine biologist, is married and has a daughter who was five years old at the time of trial.

The mother has proposed a visitation schedule for the father that includes extended visits, both in St. Croix and in Massachusetts, during the Christmas and spring vacations and Columbus Day weekend. In addition, the father will be allowed to visit the child at other times in St. Croix so long as he gives the mother at least thirty days’ notice. The mother has agreed to bring the child on any business trips to Massachusetts that do not conflict with school, and the child would never travel alone. The father will have communication with the child via telephone, electronic mail, and Internet-accessible cameras.

2. Judge’s findings of fact. A trial judge’s findings of fact will not be set aside unless clearly erroneous. Barboza v. McLeod, 447 Mass. 468, 469 (2006). Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Barboza, supra, quoting from Marlow v. New Bedford, 369 Mass. 501, 508 (1976).

In addition, a reviewing court will give due regard to the judge’s assessment and determination of the credibility of the witnesses in making such findings. Custody of Eleanor, 414 Mass. 795, 800 (1993). A judge’s assessment of the quality of the testimony is entitled to considerable weight because he or she is in the best position to judge the weight and credibility of the evidence. Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203 (1986).

[775]*775We have reviewed the detailed findings of the judge and conclude that they are fully supported in the record. While the father has stated his disagreement with the judge’s assessment of the credibility of the witnesses and the weight she gave to the evidence, he has failed to demonstrate that the findings of fact are clearly erroneous and should be set aside.

3. Application of the “real advantage” test. Initially, we note that, although the parties were never married, the child is entitled to the same rights and protections of the law as other children. G. L. c. 209C, § 1.2 Here, the judge properly applied the correct legal standard in determining that the mother could remove the child to St. Croix. The Massachusetts removal statute, G. L. c. 208, § 30, provides 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.” The purpose of the statute is 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 in another State or country. Yannas v. Frondistou-Yannas, 395 Mass. 704, 712 (1985).

In Yannas, supra at 711, the Supreme Judicial Court established the calculus for solving this problem by setting forth a two-part inquiry when considering a custodial parent’s proposed removal of a minor child. “In this process, the first consideration is whether there is a good reason for the move, a ‘real advantage.’ ” Ibid. This requires that the custodial parent establish “a good, sincere reason for wanting to remove to another jurisdiction.” Ibid. Here, the judge must consider both “the soundness of the reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Ibid. Rosenthal v. Money, 51 Mass. App. Ct. 257, 267 (2001).

[776]*776The second inquiry that shall be made by the judge is whether removal from the jurisdiction is in the best interests of the child.

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Cite This Page — Counsel Stack

Bluebook (online)
857 N.E.2d 32, 67 Mass. App. Ct. 772, 2006 Mass. App. LEXIS 1217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wakefield-v-hegarty-massappct-2006.