67 Mass. App. Ct. 1120

December 19, 2006


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.


After a divorce trial, a Probate and Family Court judge awarded the mother physical and legal custody of the children and allowed her to move to Arizona with them. The father appeals, challenging the removal decision. We affirm.

Background. After a trial on June 3, 2004, the judge issued a judgment of divorce nisi, an order for correction, and a supporting memorandum with over one hundred findings of fact and conclusions of law.

We summarize the judge's findings of fact. The parties were married in Agawam, Massachusetts on November 2, 1986. They moved to Arizona, where their first child died. The parties eventually moved back to Massachusetts. Their two other children, a son and a daughter, were born on March 2, 1996, and January 2, 1998, respectively. The children reside with the mother and she has been responsible for home care and child rearing.

At the time of the trial, the mother worked part-time as an administrative assistant and bookkeeper for a condominium complex. The father, who was employed as a senior quality control engineer at Colt, lost his job in March of 2003. He remained unemployed until May of 2004, when he began working in quality assurance through a Connecticut temporary staffing agency, earning $640 per week. Neither party owned any real estate or had interests in pension plans. Because of the father's long period of unemployment and the small amount of child support that he was providing, the mother had to rely on the financial support of her mother during both the separation and the pendency of the divorce.

Father has a history of mental health problems. On May 29, 2002, he was admitted to a mental health facility in Hartford, Connecticut on a 15-day physician's emergency certificate because of concerns that he was a danger to himself and the mother. He was diagnosed with “major depressive disorder, recurrent, severe, without psychotic features” and a personality disorder. He was discharged with multiple medications, followed up with a psychiatrist, and engaged in therapy. However, he stopped taking all medications in January of 2004 and has not been in therapy since at least April of 2004, apparently without the advice or consent of any physician. The judge found that this decision was neither prudent nor practical and that it was a cause for concern.

Except for a hiatus of several months in the summer and fall of 2002, the mother has always been the children's primary caretaker. During the months that the children resided with the father, they had increased behavioral problems at school. Matthew is a special needs student. Because of the therapy and the medical treatment he received, his behavioral issues have subsided since his return to the mother. At the time of trial, the parties' daughter was also in therapy.

While the father rarely took his children to therapy, the mother has been supportive of their therapy and is an advocate for their access to appropriate services. She is most attentive to their needs and welfare. In her care, the children have been doing increasingly well in school and socially. She has been the parent making the major decisions regarding the children's welfare. She and the father cannot communicate effectively regarding the children.

Because of a Department of Social Services investigation that began after the son disclosed to his therapist that the father put soap in his mouth, the father's visitation was suspended during May of 2003, and was subsequently reinstated as supervised visitation.

Proposed move. The mother requested that she be allowed to move with the children to Scottsdale, Arizona. Her mother, brother, and twin sister live there in close proximity to each other. The mother has a close relationship with them. The mother's sister is a nurse with many local connections in the medical field, the mother's brother is a teacher, and the maternal grandmother is a former teacher at a school for emotionally disturbed children. These relatives have already assisted the mother in identifying and contacting service providers for the children, such as pediatricians and therapists. The elementary school the children would attend offers high quality education and appropriate services for students with special needs.

The mother and the children planned to initially reside with the grandmother in her condominium. The grandmother agreed to provide the mother with financial support during the resettlement period, as well as take care of the children while the mother was seeking employment. The mother believed that because of a greater pace of condominium development in Arizona, she would have better employment prospects in her specialty, i.e. bookkeeping, and a higher salary there. At the time of trial, she has already begun her employment search in Arizona.

The mother proposed that the father have the children in Massachusetts for three one-week visits during school vacations and for one six-week visit during the summer, that he could visit them for one weekend every two months in Arizona, and that the costs of transportation would be recognized as a setoff in the child support order.

Father's claims. On appeal, the father challenges a number of the judge's findings relative to the mother's request that she be allowed to remove the children with her to Arizona, arguing about the import of the evidence and the inferences to be drawn from the evidence. He challenges the judge's findings that the mother's desire to move was not motivated by a desire to deprive him of a relationship with the children, that the mother has a close relationship with her siblings and her mother, that the children would benefit from being with these relatives and from the resulting stability and family support, and that the mother's quality of life would improve.

The father also challenges the judge's departure from the guardian ad litem's recommendation regarding removal. The judge made clear in her decision that she considered and rejected this recommendation. [Note 1] The judge was not required to adopt it. Mason v. Coleman, 447 Mass. 177 , 186 (2006).

Discussion. It is up to the judge to evaluate the credibility of witnesses and to decide what weight to give to their testimony. Bak v. Bak, 24 Mass. App. Ct. 608 , 616 (1987). The judge's findings must stand unless they are clearly erroneous. Mass.R.Dom.Rel.P. 52(a)(2006). Having reviewed the record, we conclude that the judge's findings have evidentiary support.

Any removal of the child from the Commonwealth “must be in the best interests of the child.” Yannas v. Frondistou-Yannas (Yannas), 395 Mass. 704 , 711 (1985). In considering a removal request, the judge first needs to decide whether there is a ‘real advantage’ to the move. Ibid. To find a real advantage, the judge should determine whether the custodial parent demonstrated a “good, sincere reason” for the move, which turns on “the soundness of the reason for moving and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation....” Rosenthal v. Maney, 51 Mass. App. Ct. 257 , 267 (2001), quoting from Yannas, supra at 711. See Dickinson v. Cogswell, 66 Mass. App. Ct. 442 , 447 (2006).

“If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively.” Yannas, supra at 711-712. At this stage, “[e]very person, parent and child, has an interest to be considered.” Id. at 712.

Here, the judge specifically found that the mother “presented several practical, sound and realistic reasons” for removal, including support for the children's special needs, financial and emotional support from her Arizona relatives for her and the children, and better employment prospects for herself. She also found that the mother's “desire to remove the children is not in any way fueled by a desire to deprive the father of a relationship with them.” The judge's conclusion that the mother demonstrated a real advantage flowing from the proposed move has evidentiary support. Williams v. Pitney, 409 Mass. 449 , 455-456 (1991).

The judge, however, did not stop her analysis at this point. She went on to the second part of the analysis, a “collective balancing of the interests.” Dickinson v. Cogswell, 66 Mass.App.Ct. at 449. The judge made a number of findings regarding the children's interests:

“With the stability and family support present in Arizona, ... the children will benefit and their quality of life will improve by being with relatives they know and love. As both children have suffered emotionally and require supportive services, being surrounded by family members trained to work with children and who are sensitive to children's well-being will positively impact on their developmental needs.”

The judge also found that the school that the children would attend offers high quality education and appropriate services for children with special needs. Vertrees v. Vertrees, 24 Mass. App. Ct. 918 , 920 (1987).

As to the mother's interests, the judge found that she, like the children, would benefit from the stability and family support that her relatives in Arizona would be able to provide. Id. at 919. Not only would the maternal grandmother provide financial support during the resettlement period, but she would also allow the mother and the children to initially stay with her and take care of the children while the mother is looking for work. The judge found that the mother's employment prospects and prospective salary appeared to be greater in Arizona. Williams v. Pitney, 409 Mass. at 456. These benefits to the mother would also inure to the benefit of the children. Yannas, 395 Mass. at 710. Pizzino v. Miller, Appeals Court No. 05-P-1254 (vol. 68 Mass. App. Ct. 2006 ).

With respect to the father, the judge found that “[d]uring the time when he had a right to supervised visitation with the children, between May, 2003, and December, 2003, he only visited with the children once. He has also failed to exercise his right to visitation on Monday evenings pursuant to the temporary order entered December 17, 2003.” Although the father points to his own testimony explaining the failure to visit, the judge did not have to credit this testimony. See Custody of Eleanor, 414 Mass. 795 , 800 (1993). See also Bak v. Bak, 24 Mass.App.Ct. at 616. “If [the] parent ... has not exercised his or her rights of visitation, the judge's problem is less difficult than in the case of a diligent noncustodial parent.” Yannas, supra at 711.

In considering the interests of a noncustodial parent, the judge must also “assess the reasonableness of alternative visitation arrangements.” Dickinson v. Cogswell, 66 Mass. at 451. Here, the judge approved the mother's proposed schedule, which included three one-week school vacation visits and one six-week summer visit to be spent in Massachusetts, and one weekend every two months to be spent in Arizona. She reasoned that the schedule “is reasonable under the circumstances as it allows the father the opportunity to visit the children throughout the year and for a substantial period of time during the summer. The parenting plan proposed by mother is in the best interest of the children as it will not disrupt their school schedule and allows for a relationship with their father by frequent contact.” The judge also considered that the father would incur travel costs related to visitation with the children. In light of this, she accepted the wife's offer to maintain the current level of child support of $108 a week for the two children, instead of increasing it to reflect the father's current income.

We are satisfied that the judge appropriately balanced the relevant factors in determining the children's best interests and neither abused her discretion nor committed an error of law in allowing the mother to remove the children to Arizona.

Judgment affirmed.


[Note 1] Apparently the guardian ad litem's report was not entered in evidence and is not, in any case, included in the record appendix.