79 Mass. App. Ct. 1114

May 2, 2011



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 mother appeals from a supplemental judgment of divorce denying her request to remove the parties' daughter from Massachusetts to Ohio. She argues that having found that the move represented a real advantage for her, the Probate and Family Court judge erred as matter of law in denying removal and concluding that the move was not in the best interests of the child. We affirm.

In accordance with our previous order of remand, the judge made additional factual findings that considered “any real advantage to the mother from removal, the effect of removal on the child ... and all other factors bearing on the best interests of the child.” See Yannas v. Frondistou–Yannas, 395 Mass. 704 , 711–712 (1985) ( Yannas ). As we instructed, the judge also considered events transpiring after our previous order, including the modification trial. The judge made detailed factual findings and concluded that the move was a real advantage to the mother, who could live rent free in Ohio and who could share cultural and religious traditions with her own mother, stepfather, younger sister, and cousins who lived there.

Proceeding next to address the best interests of the child, the judge made detailed factual findings, which are supported by the record. On balance, even considering the real advantage to the mother and the benefits flowing to the child from the move, the judge concluded that the move would be detrimental to the child and not in her best interests. The judge took into consideration the child's relationship with the father and his parents, who have been almost a daily part of the child's life since birth, compared to the child's much more limited relationship with the mother's family. The judge also considered the mother's desire to minimize the child's relationship and contact with the father and his family and the effect that the move would have on minimizing that relationship from the child's perspective. See Wakefield v. Hegarty, 67 Mass. App. Ct. 772 , 775–776 (2006); Pizzino v. Miller, 67 Mass. App. Ct. 865 , 870 (2006). We discern no abuse of discretion or other error of law. See Wakefield v. Hegarty, supra at 776–777.

We reject the mother's contention that a real advantage to the custodial parent is the primary consideration in determining removal. The factors bearing on removal are substantially more nuanced, looking not only to a “real advantage” but also to the best interests of the child, and the unique interplay of those factors in each case. See Yannas, supra (when move provides a real advantage, “none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively”). “An evaluation of the best interests of the child requires attention to 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.

The judge recognized that the benefits flowing to the mother from the move-including the financial benefits of reduced living costs, the availability of the maternal grandmother for child care, the existence of family support, and the presence of cultural and religious communities-would also improve the child's quality of life. See Wakefield v. Hegarty, supra at 777. However, the judge also recognized that the move would seriously and negatively affect the child's relationship with her father, his parents, and his extended family. See Dickenson v. Cogswell, 66 Mass. App. Ct. 442 , 451–453 (2006) (removal would have drastic impact on father's close relationship with child). The judge viewed this negative impact as especially likely because the mother “does not support the child's relationship with [the father], the Khans, or other members of [the father's] family,” and “does not support [the father's] relationship with the child and has continuously sought to limit his parenting time.” The judge was rightly concerned that should the child move, visitation was likely to become more sporadic and communication with or about the child would significantly decrease. [Note 1] See Dickenson v. Cogswell, supra (frustration of visitation and contact because of removal against child's best interests). Contrast Wakefield v. Hegarty, supra at 777–778.

The judge also found that the move would negatively affect the child's emotional and physical needs by depriving her of extensive close familial relationships in Massachusetts, compared to those in Ohio. The judge did not err in recognizing that the loss of those relationships would affect the child's best interests given the significant role those individuals played in her upbringing and the mother's demonstrated reluctance to foster their contact with the child. See Rosenthal v. Maney, 51 Mass. App. Ct. 257 , 270 (2001) (important family relationships also deserve consideration).

Balancing the factors that bear on the child's best interests in a removal case “involve[s] classic discretionary decision-making by the trial judge.” Dickenson v. Cogswell, supra at 452. Indeed, the mother's argument devolves essentially to a complaint that the judge should have weighed the factors differently. The judge was in the best position to strike that difficult balance, and we cannot say that the judge erred because the balance might have been struck differently. See Adoption of Sherry, 435 Mass. 331 , 335 (2001) (findings upheld unless clearly erroneous); Wakefield v.. Hegarty, supra at 778.

Supplemental judgment dated May 17, 2010, affirmed.


[Note 1] We reject the mother's contention that in these circumstances the judge was required to devise an alternative plan of visitation to the one proposed by the mother. Indeed, given the father's limited personal finances, the judge found that visitation in Ohio would be problematic for father and would “virtually eliminate” any relationship that the child had with the Khans or the father's extended family.