74 Mass. App. Ct. 1106

April 24, 2009

Present: Duffly, Kafker & Grainger, 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 appeals from a judgment of divorce nisi which, in pertinent part, awarded joint legal custody of the minor child to these divorced parents, and denied the wife's request to remove the child out of State. We vacate the judgment with respect to these issues and remand for further proceedings.

Joint custody. The judge found, with support in the record, that the father raped the mother during their marriage. However the judge failed to: assess the impact on the child of the father's behavior, or make the requisite findings in connection with the award of joint legal custody. G. L. c. 208, § 31A, inserted by St. 1998, c. 179, § 3 ("serious incident of abuse," such as rape by parent, creates "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" and requires "written findings of fact as to the effects of the abuse on the child"). See Maalouf v. Saliba, 54 Mass. App. Ct. 547 , 551 (2002) (remanding for explicit findings on effect of abuse of mother on children). Remedying this omission on remand will provide an opportunity for the trial judge to consider the entire record to date, including evidence introduced at a hearing on the mother's motion for modification, subsequent to the filing of this appeal, by which the record before us was supplemented. [Note 1]

Removal. Where a custodial parent seeks to remove the child to another jurisdiction, the custodial parent must first establish a "real advantage," defined as a "good, sincere reason for wanting to remove to another jurisdiction." Yannas v. Frondistou-Yannas, 395 Mass. 704 , 711 (1985). The judge here concluded that there was no real advantage, despite finding that the mother would be "happier living near her mother and sister" in Ohio. (R.A. 171). The judge did not conclude that the mother's removal request was motivated by an improper desire to deprive the father of contact with the child. See ibid. (removal not appropriate if undertaken "to deprive the noncustodial parent of reasonable visitation"). The judge mentioned, albeit only in passing and without making any explicit findings, that the mother would have the opportunity to live rent-free for some period of time after the move. "Because the judge found, perhaps erroneously, that the proposed move offered no real advantage to the mother, he obviously gave no weight to any real advantage to her in his calculus regarding the [child's] best interests." Pizzino v. Miller, 67 Mass. App. Ct. 865 , 875 (2006). In sum, the decision lacked the "careful and clear fact-finding" our case law requires. Yannas v. Frondistou-Yannas, supra at 712.

On remand, the judge should consider any real advantage to the mother from removal, the effect of removal on the child - both directly and as a result of any advantages that may be found to inure to the mother, the effect - for good or ill - of reduced association with the father, and all other factors bearing on the best interests of the child. See id. at 711-712. This consideration must now include events which transpired after the previous order. See G. L. c. 208, § 28; Hartog v. Hartog, 27 Mass. App. Ct. 124 , 128 (1989), and cases cited.

The judgment of December 5, 2007, is vacated with respect to joint legal custody and removal, and the matter is remanded for further proceedings consistent with this opinion. As stated above, "[i]t is within the judge's discretion to consider evidence regarding the current circumstances of the parties and the [child]." Abbott v. Virusso 68 Mass. App. Ct. 326 , 339 (2007).

So ordered.


[Note 1] We acknowledge that the judge made additional findings that the father's abusive behavior occurred only when he was not properly medicated and not in therapy; the judge also provided safeguards for visitation consistent with those additional findings. However, the record as supplemented throws doubt on the efficacy of those safeguards and makes reconsideration appropriate.