C.S. v. J.S. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

This case concerns the parties' custody and removal dispute over their four year old child. See G. L. c. 209C, § 10; Smith v. McDonald, 458 Mass. 540, 546 (2010), citing G. L. c. 208, § 30. After a three-day trial, a Probate and Family Court judge granted sole legal and physical custody to the child's mother, the plaintiff. He also allowed her to remove the child from the Commonwealth over the defendant father's objection. The father now appeals from the amended judgment, arguing that the judge abused his discretion in both the custody and the removal decisions. We affirm.

Background. The parties began a relationship in 2005, though they never married. The mother has had sole legal and physical custody of the child since May, 2016, when she obtained a restraining order against the father. There is a long history of the father inflicting physical, mental, and emotional abuse upon the mother. Due in part to this history, the mother wished to move with the child to the State of Washington to live near her mother and sister.

Discussion. 1. Custody. Turning first to the custody determination, the father asserts that the judge abused his discretion by (1) failing to appropriately consider the mother's mental health history, and (2) failing to consider the parents' differing scores on intelligence testing.² We are not persuaded by either argument.

A judge “must settle custody in a manner that advances the best interests of the child[ ].” Bak v. Bak, 24 Mass. App. Ct. 608, 616 (1987). We review any challenged findings for clear error and the custody determination itself for abuse of discretion. Murphy v. Murphy, 82 Mass. App. Ct. 186, 193 (2012).

The father does not challenge any of the judge's factual findings as being clearly erroneous. Regarding the father's assertion that the judge failed to appropriately weigh the mother's mental health history, we conclude that there was no abuse of discretion. The judge considered the mother's “significant emotional issues” and made findings regarding her mental health. He found that she had undergone a psychiatric hospitalization once in 2009 after writing several suicide notes, but he ultimately determined that she “never attempted to commit suicide” or even intended to do so; the notes “were simply a method for her to work through her pain.” The judge was entitled to decide that this single episode was insufficient to outweigh the guardian ad litem's conclusion that the mother was “a natural at parenting, demonstrating sound judgments and an ability to focus on [the child's] needs over and above her own.”

The father also argues on appeal that because he scored higher than the mother on a particular intelligence assessment, the judge should have considered the benefit of having both parents participate in the child's schooling. The father did not raise this argument below, but, regardless, the judge did not abuse his discretion. The psychologist administering the assessment did not find that the mother's results negatively affected her parenting, nor did he note any potential detriment to the child's education if the father were not involved. On appeal, the father does not assert that any finding or opinion of the psychologist was given insufficient weight. In sum, the father has not shown any abuse of discretion in regard to the custody determination.

2. Removal. Like custody determinations, removal orders must be in the best interests of the child, and we review for an abuse of discretion. Mason v. Coleman, 447 Mass. 177, 183-184 (2006). When considering removal, the judge first must evaluate “whether there is a good reason for the move, a ‘real advantage.’ ” Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985). The “real advantage” test requires “a good, sincere reason” for removal, and the judge must also consider “the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Id. If the “real advantage” test is satisfied, the judge must decide “whether the move is in the best interests of the child[ ].” Altomare v. Altomare, 77 Mass. App. Ct. 601, 604 (2010).

Here, the judge weighed all of the relevant factors before determining that there was a real advantage to removal. The judge found several benefits to the mother moving to Washington. Her family resided there, and she had educational and career opportunities that were not available to her in the Commonwealth. The judge concluded that the mother's motivation for moving was sincere and untainted by any desire to deprive the father of reasonable visitation.

The father asserts that removal would deprive the child “of adequate opportunities to bond with [him].” But the judge appropriately “acknowledge[d] that [the father] will lose valuable parenting time.” To remedy this, the judge crafted a parenting plan that would give the father substantial time with the child, both in the Commonwealth and in Washington, and he eliminated the requirement that the father's parenting time be supervised. The judge also found that the mother “recognize[d] the importance of [the child] maintaining a relationship” with the father and was “committed to fostering [that] relationship.” The judge's removal decision carefully considered all relevant factors, including the best interests of the child, and was not an abuse of discretion.

Amended judgment affirmed.

FOOTNOTES

2.   The father also briefly asserts that the judge abused his discretion in denying the father's motion to continue the trial. We cannot fully evaluate that decision, as the father failed to include in his record appendix either that motion or the motion to compel upon which it was based. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807, 810-812 (1992). Based on the limited information in the record before us, the father has not shown an abuse of discretion.