Removal Cases Before Determining Custody Arrangements

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Removal matters – where one parent seeks to move with a child or children either to another state or to a place within the Commonwealth that is far enough away to cause a significant impact on the parenting plan – are amongst the most fraught cases that attorneys and courts have to wrestle with. Unlike most other issues that arise in the context of parenting, removal matters do start to resemble zero-sum conflicts where the stakes can be enormous.

Over the last dozen or so years, judges have viewed these cases through two different lenses when they are trying to determine whether a parent can be permitted to move away with the child or children. These lenses are shaped by the parenting plan in effect and whether or not one parent is a primary physical custodian. In cases where the moving party has primary or sole physical custody of the child(ren), the court’s determination is driven by the so-called “real advantage” standard articulated in Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). Where, however, the parents share physical custody, the court uses the standard articulated in Mason v. Coleman, 447 Mass. 177 (2006), known as the “best interests” standard.

Under the “real advantage” standard established in Yannas, a judge engages in a two-part inquiry. First, a judge must examine whether there is a good reason for the move – a ‘real advantage’ to the moving parent. In other words, the custodial parent has to prove that there is “a good, sincere reason for wanting to remove to another jurisdiction.” Once that threshold is satisfied, the judge has to consider the interests of the custodial parent, the noncustodial parent, and their child, and balance those interests to determine whether removal is in the best interests of the child.

Under the “best interests” standard established in Coleman, a judge has a more exacting standard, as there is no so-called “custodial parent” whose interests are so interwoven with the child or children. Thus, the advantage to that parent is but one of several factors that a court considers, but the best interests of the child are the paramount consideration in the inquiry.

In a recent case, Miller v. Miller (, the Supreme Judicial Court considered what happens when no existing custody arrangement has been established – what happens when the removal question occurrs at the outset of the litigation? There was no determination yet of whether physical custody was shared or not, which meant that the court did not have a basis for applying either the Yannas or the Mason analysis.

The SJC ultimately determined that the judge must first perform a functional analysis to determine whether or not there is a custodial parent. Then, the court must apply the corresponding standard. As part of a functional analysis, the court would go through a factual inquiry “regarding the parties’ respective parenting responsibilities to determine whether the custody arrangement more closely approximates sole or shared custody.”

In a concurring opinion, Chief Justice Gants noted that, while he concurred with the judgment, the Yannas-Mason analysis was really a fiction that did not serve the interests of justice, far removed from the realities of parenting. The concurrence notes that the proper analysis is one that simply asks what is in the best interests of the child, as that is the paramount concern of the parents and the judge. Pigeonholing parental roles and creating legal fictions to cater to an outdated analytic structure only serves to inflame disputes, puts an outsized importance on the “label” one affixes to the parenting plan, and is ultimately beside the point given that the ultimate inquiry is what is in the child’s first interests.

Through this concurrence, the court is likely signaling that it may be willing to revisit and probably do away with the Yannas-Mason framework if the right case presents itself. Given the stakes involved, it may be that a litigant will take this opportunity in the near future.


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