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Miller v. Miller

Supreme Judicial Court of Massachusetts, Middlesex

January 12, 2018


          Heard: September 6, 2017.

         Complaint 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.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Elaine M. Epstein (Richard M. Novitch also present) for the husband.

          Matthew P. Barach (Melinda J. Markvan also present) for the wife.

          Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         The 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.[1] We also take this opportunity to emphasize that the best interests of the child is always the paramount consideration in any question involving removal.

         We are 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.


         The 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.

         The 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.

         Among 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 loving relationship.

         Following 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.[3] 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.

         Despite their impressive professional credentials, [4] 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 mother.[5]

         Prior 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 friends there.

         Following 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 motion.


         The husband challenges the judge's removal order on two grounds.[6] 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.

         1. Applicable law.

         a. G. L. c. 208, § 30.

         General 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.[7] "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.

         We note 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").[8] 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.[9]

         b. Removal analysis.

         The "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.[10] 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.[11] "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 (2009).[12]

         c. Evaluating custody.

         In 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).

         In 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.[13] See id. at 605-606, and cases cited ("Our cases make clear ...

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