73 Mass. App. Ct. 1110

December 18, 2008

Present: Cypher, Grainger & Wolohojian, JJ.


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.


The wife filed for divorce from the parties' second marriage [Note 1] on the ground that there had been an irretrievable breakdown in the marriage. The wife sought physical and legal custody of the couple's two children [Note 2] and also sought leave to remove the children to Scotland, the wife's native land. After a two-day trial, a judgment of divorce nisi issued on July 17, 2007, which (pertinent to this appeal) denied the request to remove the children to Scotland, and awarded the parents joint legal custody. [Note 3] The wife appeals these two components of the judgment.

1. Removal to Scotland. Where, as here, one parent exercises the clear majority of the custodial responsibility, the "real advantage" test applies to determine whether a request to remove children from the Commonwealth should be allowed. [Note 4] Abbott v. Virusso, 68 Mass. App. Ct. 326 , 330 (2007), S. C., 450 Mass. 1031 (2008). That test requires the court to determine (1) whether there is a genuine recognizable advantage to the custodial parent by moving; and (2) if there is such an advantage, whether the move is in the best interest of the children. Yannas v. Frodistou-Yannas, 395 Mass. 704 , 711-712 (1985). Abbott, 68 Mass. App. Ct. at 331-332. The latter is a collective consideration of the interests of the children, the custodial parent, and the noncustodial parent. Yannas, supra. Rosenthal v. Maney, 51 Mass. App. Ct. 257 , 267-268 (2001). The trial judge's determination as to whether to allow or deny a request to remove children from the Commonwealth is reviewed for abuse of discretion. Pizzino v. Miller, 67 Mass. App. Ct. 865 , 872 (2006) ("The trial judge is in a position far superior to our own with respect to these judgments, and absent an abuse of discretion, we do not presume to interfere").

The probate judge applied the correct legal standard (i.e., the real advantage test) and we discern no abuse of discretion in the judge's conclusion that removal to Scotland is not in these children's best interest. Although the judge found that several factors demonstrated a "real advantage" to the wife and derivatively to the children should they be allowed to move to Scotland, [Note 5] he did not err in concluding that removal at this time was not in the children's best interest. Among other things, the record supported the judge's findings that the children have resided primarily in the United States, that the older child has strong friendships with classmates here, that the children have close and important relationships with the husband, that the children enjoy their visits with the husband, [Note 6] that the children enjoy their relationship with the husband's extended family, that the children have a limited relationship with the wife's extended family in Scotland, that the children will be adversely affected emotionally by being removed to Scotland, and that the son's developmental progress will be negatively affected if he were to be removed to Scotland. [Note 7] The record also supported the judge's finding that removal would not be in the best interest of the children's mental health and that the children need regular involvement with their father. In short, the judge did not abuse his discretion in denying the wife's request to remove the children to Scotland. [Note 8], [Note 9]

2. Legal custody. We also discern no abuse of discretion in the award of joint legal custody. See Kendall v. Kendall, 426 Mass. 238 , 251 (1997). Custody is to be determined based on the best interests of the children. Freedman v. Freedman, 49 Mass. App. Ct. 519 , 522 (2000). Although there is evidence, as the mother contends, of animosity and acrimony between the parties, the probate judge did not abuse his discretion in concluding that the parties have an ability and a willingness to share major decision-making regarding the children's welfare. There was, for example, no evidence that the tension between the parties precluded them from discussing, planning, or agreeing upon important medical or educational issues in the lives of their children. Indeed, to the contrary, the wife herself conceded that both parents should remain involved in the children's school and medical issues. See Doe v. Doe, 16 Mass. App. Ct. 499 , 502 (1983) (while conflict between the parties existed, court nevertheless upheld award of joint legal custody).

For the reasons set out above, the July 17, 2007, judgment of divorce nisi is affirmed.

So ordered.


[Note 1] The parties were first married in 1996 (ending in divorce in 1998) and again in 2001.

[Note 2] The two children are a daughter, born January 17, 1999, and an adopted son, born October 4, 2001, who is a third cousin of the wife.

[Note 3] Physical custody was awarded to the wife.

[Note 4] Neither party contests the probate judge's finding that the mother "exercises a clear majority of the custodial responsibility for the children currently."

[Note 5] The judge found that the wife would be happier in Scotland and that, derivatively, the children would also benefit. He found a genuine advantage to the wife in returning to her native land and her extended family, including increased employment opportunities. In light of these findings, we see no merit in the wife's argument that the judge did not consider her interests in determining the best interests of the children.

[Note 6] We disagree with the wife's contention that the judge erred when he concluded that the children's exposure to Scotland was limited. The evidence showed that the children have lived their entire lives in the United States, that the son has only visited Scotland twice, and that, while the daughter has visited Scotland eight times, the longest of those trips was three weeks.

[Note 7] Contrary to the wife's contention, the record also supported the judge's finding that the children's special needs required the involvement of both parents. The record demonstrates that the daughter perceives her father as the victim of the divorce, that she believes that the conflict between her parents is her fault, and that she "remains hyper vigilant about the loss of the family . . . ." There is also evidence that the son has medical and psychological needs, has not been very open about his parents' divorce, and acts out during transitions between parents.

[Note 8] We are unpersuaded by the wife's argument that the judge did not exercise independent judgment, solely adopting the recommendation of the guardian ad litem. While the judge did accept the guardian ad litem's recommendation, it was within his discretion to do so and there is no indication that he did not make an independent determination. See Pizzino v. Miller, 67 Mass. App. Ct. at 876 ("It was for the judge to decide whether to credit the guardian's report and testimony"). Furthermore, the supplemental report did not provide any additional recommendations and there is no indication that the judge did not consider the evidence contained therein.

[Note 9] The probate judge did not, as the wife argues, impermissibly place on her the burden to show an improvement in the children's lives. While the judge noted that the wife had "not demonstrated any decided advantage" to the children, he properly considered all the competing interests in reaching his ultimate conclusion as to whether removal was in the children's best interests. Rosenthal v. Maney, 51 Mass. App. Ct. at 268 ("We first note that it was not the mother's burden to provide evidence of improvement, but that the factors must be considered collectively").