Supreme Judicial Court of Massachusetts, Middlesex
BENJAMIN H. MILLER
JOANNA ISABELLA MILLER.
September 6, 2017.
for divorce filed in the Middlesex Division of the Probate
and Family Court Department on May 20, 2013. The case was
heard by Patricia A. Gorman, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
M. Epstein (Richard M. Novitch also present) for the husband.
Matthew P. Barach (Melinda J. Markvan also present) for the
Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, &
husband, Benjamin H. Miller, appeals from a Probate and
Family Court judgment permitting the wife, Joanna Isabella
Miller, to remove and relocate the parties' daughter to
Germany, the wife's home country. We have previously held
that when deciding whether removal should be permitted, the
particular criteria depends on whether physical custody of
the child is sole or shared. Where the parent seeking removal
has sole physical custody, his or her removal petition is
analyzed using what has been called the "real
advantage" standard of Yannas v.
Frondistou-Yannas, 395 Mass. 704 (1985). Where, however,
the parents share physical custody, a parent's removal
request is evaluated using the standard articulated in
Mason v. Coleman, 447 Mass. 177 (2006), known as the
"best interests" standard. In this case, no prior
custody order existed to guide the trial judge as to whether
the Yannas or Mason analysis should apply.
In such circumstances, we hold that the judge must first
perform a functional analysis, which may require a factual
inquiry, regarding the parties' respective parenting
responsibilities to determine whether it more closely
approximates sole or shared custody, and then apply the
corresponding standard. We also take this opportunity to
emphasize that the best interests of the child is always the
paramount consideration in any question involving removal.
satisfied that the judge conducted the requisite functional
analysis here, and in determining whether removal was in the
child's best interests she afforded considerable weight
to the benefits the proposed move to Germany would offer the
wife, the child's primary caregiver. Because we discern
no abuse of discretion or error of law from the judge's
consideration of those benefits, or from her ultimate
conclusion that removal is in the child's best interests,
we affirm the judgment below.
wife, a German citizen, and the husband, a United States
citizen, were married in Tanzania in September, 2007. Their
only child, a daughter, was born in Uganda in March, 2008. In
July, 2011, the family moved to Massachusetts, where the
husband's family resides, so that the husband could
attend graduate school. The parties did not intend to remain
in Massachusetts and planned to leave once the husband
received his graduate degree. The wife had grown up in
Germany and had never lived in the United States before, and
the husband had not resided here in eighteen years.
husband ultimately did not attend graduate school, however,
and the parties first separated in April, 2012. During this
separation, which lasted from April to August, the wife moved
with the child to Germany, where they resided with the
wife's mother and the child attended a German public
school. The wife returned to Massachusetts with the child
that August in an attempted reconciliation, but the parties
separated for the final time in September, 2012. The husband
filed for divorce in May, 2013, citing an irretrievable
breakdown of the marriage and requesting shared custody of
the child. The wife counterclaimed shortly thereafter,
seeking sole custody of the child and requesting permission
to permanently remove her to Germany.
the relevant facts found by the judge was the determination
that the "[w]ife has been [the child]'s primary
caregiver since birth, " and has continued in that role
following the parties' separation. The wife cared for the
child when she was an infant, and is now the parent who
"arranges and attends her medical appointments, "
"cares for [the child] when she is ill, "
"purchases the majority of her clothing, and attends all
parent-teacher conferences." The judge also found that
although the "[h]usband is not seeking sole physical
custody of [the child, ] and does not propose that he should
be her primary caregiver, " the husband does participate
in certain parenting tasks, and he and the child have a
their divorce filings, the parties filed a stipulation in the
trial court stating that they "shall share custody"
of the child. By its terms, the husband, who lives in an
apartment in Watertown, has the child overnight on Mondays
and Wednesdays; he also has her every Saturday, and
alternates each week between dropping the child off with the
wife that Saturday evening, or the following evening on
Sunday. The wife has the child at all other times at the
couple's former marital residence in Somerville, where
the wife still resides. In practice, however, the husband
often travels for work, and when he does he communicates with
the child infrequently, and he misses parenting time that he
has not sought to make up. The judge also found that
"the parties struggle to communicate effectively
regarding parenting issues, " and that the husband does
not usually allow the wife to speak with the child when the
child is in his care.
their impressive professional credentials,  the husband
and wife have both struggled financially since they arrived
in Massachusetts, and the judge concluded that their current
parenting arrangement is "financially untenable."
The husband's salary from his current position at a
Cambridge-based nonprofit is insufficient to provide for the
wife and the child; he cannot meet his current expenses,
which include weekly child support payments to the wife and
paying for the wife and the child's health insurance. The
judge found that the wife is likewise "unable to provide
for [the child] in Massachusetts." Despite her
good-faith efforts to find a job -- she has applied for over
400 positions -- the wife has been unable to find one
commensurate with her experience. At the time of trial she
was working part-time as a kitchen assistant making fourteen
dollars per hour; beyond that, her income consisted of the
husband's child support payments, supplemental nutrition
assistance program benefits for the child, and periodic
financial support from both the husband's and her own
to trial, the wife was offered a well-paying job in Germany,
which the judge found would enable the wife "to support
herself and [the child] without child support from [the
h]usband." Beyond a livable salary, its benefits include
health insurance and "the ability to work from home most
of the time." The wife expressed her intention of
accepting the position if her requests for custody and
removal were granted. In contrast with Massachusetts, where
the wife lacks any family or friends, a return to Germany
would place the wife among her extended family. This includes
the wife's mother, with whom the child is especially
close. The child has already spent considerable time in
Germany as well -- she has visited at least ten times since
birth, and has attended German schools for two extended
periods. The child is fluent in German, has a German
passport, and has kept in regular contact with her family and
a three-day trial, the judge concluded that permanently
relocating to Germany with the wife was in the child's
best interests and granted the wife's requests for
physical custody and removal. The judgment granted the
husband "parenting time with [the child] during three of
the four annual vacations from school in Germany, including
six consecutive weeks during each summer vacation, " as
well as "additional parenting time with [the child] in
Germany upon reasonable notice to [the w]ife by
agreement." The husband appealed from the judgment, and
we transferred his case from the Appeals Court on our own
husband challenges the judge's removal order on two
grounds. First, he argues that the judge erred
in applying the "real advantage" analysis of
Yannas, applicable where a parent seeking removal
has sole physical custody of his or her child. The husband
contends that because the parties shared physical custody of
the child, the judge should have applied the "best
interest" standard articulated in Mason.
Second, the husband argues that even if the judge properly
employed the Yannas standard, she nevertheless
abused her discretion in concluding that removal is in the
child's best interests. Before engaging the husband's
arguments, we briefly review the legal framework for
evaluating removal petitions in the Commonwealth.
G. L. c. 208, § 30.
Laws c. 208, § 30, governs removal from the Commonwealth
of children of divorced parents where one parent seeks to
relocate without the consent of the other parent. It provides
that "[a] minor child of divorced parents who is a
native of or has resided five years within this commonwealth
. . . shall not . . . be removed out of this commonwealth . .
. without the consent of both parents, unless the court upon
cause shown otherwise orders." G. L. c. 208, §
30. "Upon cause shown" means
that removal is in the best interests of the child.
Yannas, 395 Mass. at 711. The statute is intended 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."
Wakefield v. Hegarty, 67 Mass.App.Ct. 772, 775
(2006), citing Yannas, supra at 712.
at the outset that the removal statute does not, by its
terms, apply to the parties' daughter: she was born in
Uganda, so she is not "a native" of the
Commonwealth; likewise, she had "resided" here for
less than five years when the wife filed her removal request.
This does not mean, however, that the removal principles
developed in cases under § 30 are not relevant or
applicable here. This court previously has applied (or
endorsed the application of) those principles in other
circumstances where not every component of the removal
statute was satisfied. See, e.g., Smith v. McDonald,
458 Mass. 540, 546 (2010), citing Wakefield, 67
Mass.App.Ct. at 775 (applying § 30 principles to child
of unmarried parents, despite recognition that "a
statute governing divorced children is not applicable
directly to nonmarital children, " in light of "the
legal equality of nonmarital children"); Smith,
supra at 546 n.13, quoting Altomare v.
Altomare, 77 Mass.App.Ct. 601, 602-603 (2010) (although
§ 30 "applies only to relocation outside the
Commonwealth, '[w]e apply out-of-State removal principles
to in-State moves, ' pursuant to common law, in cases
where the move would disrupt significantly existing parenting
arrangements, such as when the move is
long-distance"). In light of the considerable time the
child has spent in Massachusetts, the meaningful ties she has
developed while here, and the fact that the wife's
proposed move would likewise "disrupt significantly
existing parenting arrangements, " Smith,
supra at 546 n.13, we analyze the wife's removal
request using the same principles developed in cases under
the removal statute.
"touchstone inquiry" is always whether removal is
in a child's best interests. Smith, 458 Mass. at
544. This question "can be resolved only on a case by
case basis, " Yannas, 395 Mass. at 711, as the
best interest standard "is one grounded in the
particular needs and circumstances of the individual child in
question" (citation omitted). Mason, 447 Mass.
at 183-184. Still, this court has established certain
guideposts to aid the judge's determination of this often
difficult question. Removal petitions in the Commonwealth are
evaluated under one of two analyses, depending on the
physical custody of the child. Where one parent has
sole physical custody, a judge must evaluate that
parent's request to remove the child under the "real
advantage" analysis set forth in Yannas, supra
at 711-712. Where, on the other hand, the parents share joint
physical custody, a judge must apply the "best
interests" analysis articulated in Mason,
supra at 178. "The main distinction"
between these analyses "comes down to the weight that
should be assigned to the benefits that relocation would
provide the parent seeking to move." Prenaveau v.
Prenaveau, 75 Mass.App.Ct. 131, 139
deciding the applicable removal standard where there is no
custody order the judge must first evaluate the parties'
custodial arrangement and determine whether it more closely
resembles sole or shared custody. Sole physical custody
"generally reflects that the children reside with only
one parent 'subject to reasonable visitation by the other
parent.'" Mason, 447 Mass. at 182, quoting
G. L. c. 208, § 31. Shared physical custody, on the
other hand, "contemplates that 'a child shall have
periods of residing with and being under the supervision of
each parent . . . assur[ing] . . . frequent and continued
contact with both parents.'" Mason,
supra, citing G. L. c. 208, § 31. Compare
Abbott v. Virusso, 68 Mass.App.Ct. 326, 327 (2007),
S.C., 450 Mass. 1031 (2008) (mother had
sole physical custody of son where son resided primarily with
her, and mother was his "primary care parent"),
with Mason, supra at 178-179 (parents
shared physical custody where "each parent took the part
of a 'primary caretaker'" during marriage, and
they "divided physical custody of the children
approximately equally" after divorce).
determining which manner of custody is present in a given
case, the judge typically will look to an existing custody
order between the parties. Even where there is such an order,
though, the judge is still required to look beyond its
characterization of custody (e.g., "the parties shall
share physical custody"), in order to examine "the
functional responsibilities and involvement of each
parent" with their child in practice. Altomare,
77 Mass.App.Ct. at 605. See id. at 605-606, and
cases cited ("Our cases make clear ...