Mason v. Coleman

• Decision Date: 10 July 2006
• Citation: 850 N.E.2d 513,447 Mass. 177
• Parties: James R. MASON v. Betsy Shanley COLEMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

850 N.E.2d 513

447 Mass. 177

James R. MASON v. Betsy Shanley COLEMAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 2, 2006.

Decided July 10, 2006.

John T. Ouderkirk, Jr., Worcester (Carol A. Phinney with him) for the defendant.

Adam A. Rowe, Boston, for the plaintiff.

The following submitted briefs for amici curiae:

Pauline Quirion, Boston, Fern Frolin, Wellesley, Warren Fitzgerald, & Martin Healy, Boston, for Massachusetts Bar Association.

Daniel B. Hogan for Fathers and Families, Inc.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

The defendant, Betsy Shanley Coleman (mother), appeals from a judgment of the Probate and Family Court enjoining removal from the Commonwealth of children whose legal and physical custody she shares with the plaintiff, James R. Mason (father). General Laws c. 208, § 30, governs removal from the Commonwealth of children of divorced parents¹ where one of the parents seeks to relocate without the consent of the other parent. Removal of the children may be authorized by the court only "upon cause shown," meaning a showing that removal is in the children's best interests. Rubin v. Rubin, 370 Mass. 857, 346 N.E.2d 919 (1976). In Yannas v. Frondistou-Yannas, 395 Mass. 704, 711, 481 N.E.2d 1153 (1985), we addressed removal where one parent had sole physical custody of the children. Today we consider the appropriate standard where parents have joint physical and legal custody. We conclude that in such a situation "cause shown" pursuant to G.L. c. 208, § 30, means a showing that removal is in the "best interests" of the children taking into account all the circumstances and weighing the factors as described below.

On the facts in this case, the judge appropriately considered the "best interests" of the children, and did not abuse her discretion in concluding that removal of the children would not serve their best interests. Refusal to authorize removal did not violate the mother's constitutional right to interstate travel, and there was no reversible error in the admission of certain contested evidence at trial. We affirm.²

Background. We summarize the facts found by the judge. The mother and father married in 1985. Two children were born of their marriage in 1992 and 1994, respectively, in New Hampshire. The parents divorced there in 1998. The judge found that during the marriage each parent took the part of a "primary caretaker" to the children.³ After the marriage, by stipulation the father and mother entered into a joint physical and legal custody agreement that was incorporated into their divorce decree.⁴, ⁵ Under the agreement, the parents divided physical custody of the children approximately equally. The parties agreed to move within twenty-five miles of Chelmsford, and agreed that, in light of uncertainty as to where each would locate in Massachusetts, the children would attend school in the district of the mother's residence.

Some years passed, and each parent remarried. The mother and father obtained modification of the divorce decree by the Probate and Family Court as required by their changing needs. The father eventually relocated to Nashua, New Hampshire, approximately seventeen miles from Chelmsford. The mother objected privately but had little advance notice of the move and did not file suit to prevent it.

Weeks after the father gave notice of his plan to move to Nashua, the mother gave notice of her intent to relocate with the stepfather to Bristol, New Hampshire. The mother's parents live in Bristol; she planned to move into her parents' home with her family and eventually into her own home nearby.⁶ The stepfather's children from a previous marriage (of whom the stepfather had joint custody) and his former wife were also to move to Bristol, and the stepfather promised them that he would follow.

In 2002, testing revealed that the older child, then ten years old, had attention deficit disorder/attention hyperactivity disorder and related learning problems. Although kind and athletic, he lacked appropriate social skills and had trouble making friends. As a result of medication, the hard work of both parents, and a dedicated school staff, the child was able to succeed in fifth grade.

The Chelmsford school district has initiated a student accommodation plan for the child, and his middle school has established an "active and effective support system for him." The judge found that the child is making "great strides" both socially and educationally in his middle school.⁷ The judge further found that, based on the State's standardized achievement tests, the Chelmsford school system is one of the better school systems in the Commonwealth, and that the Bristol, New Hampshire, middle school ranks below the State average on New Hampshire's standardized achievement test. The judge concluded that, in light of the disruptions to his developmental process that would be occasioned by the challenges of a new home, school, and sibling, and reduction in the time spent with the father, the move to New Hampshire would be "detrimental" to the older child's socialization and education.

In addition to the developmental issues, the judge found that the mother's children claimed one of them was inappropriately touched by the son of the mother's new husband. The allegation caused considerable acrimony between the mother and father. This tension left the child, who subsequently recanted and then reasserted his claim of abuse, feeling "scared about his role in the family" and "emotionally harmed" by his parents' ongoing conflict.

When the mother informed the father of her intention to move to New Hampshire, the father refused to consent to removal of the children from the Commonwealth and filed a complaint for modification of the divorce decree in the Probate and Family Court seeking, among other things, sole physical custody and a temporary order enjoining the mother from removing the children from the Commonwealth. The mother counterclaimed for modification granting her sole physical custody and for a temporary order permitting the planned relocation to Bristol, New Hampshire.

A probate judge allowed the father's temporary order enjoining removal and other judges issued orders not material here. After some time, and a four-day trial, a different judge weighed the best interests of the children and determined that removal to New Hampshire in the manner requested by the mother was not in the best interests of the children and thus would not be authorized by the court. The judge found that Chelmsford schools were preferable to those of Bristol, particularly for the child with special needs; that uprooting the children would be detrimental to their interests; that the move would cause a reduction of the father's parenting time that would not be in the children's interests; that misconduct allegations against a stepsibling weighed against increased time in the mother's household; and that there was insufficient evidence of financial imperative to justify the mother's move to Bristol. The judge determined that the father's move to Nashua did not provide ground for the relief requested by the mother, and the judge did not award sole physical custody to either party, deciding instead to order continued shared legal and physical custody. The mother appealed,⁸ and we transferred the case to this court on our own motion.

Discussion. True joint custody is divisible into two components: shared legal custody and shared physical custody. C.P. Kindregan, Jr., & M.L. Inker, Family Law and Practice § 47:1 at 395-396 (3d ed.2002); Folberg, Joint Custody § 13.01[2], in 2 Child Custody & Visitation Law and Practice (2005), citing Pascale v. Pascale, 140 N.J. 583, 595-596, 660 A.2d 485 (1995) (Folberg). Shared legal custody carries "mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." G.L. c. 208, § 31. This contrasts to sole legal custody, which gives to only one parent these rights and responsibilities. Id. Shared physical custody 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." G.L. c. 208, § 31. This contrasts to sole physical custody which generally reflects that the children reside with only one parent "subject to reasonable visitation by the other parent." Id.

Although the General Laws state that there is no presumption "either in favor or against shared . . . custody at the time of trial on the merits," G.L. c. 208, § 31, such an arrangement is generally appropriate only if the parties demonstrate an ability and desire to cooperate amicably and communicate with one another to raise the children. Folberg, supra at § 13.06[1]; Gardner, Joint Custody is Not for Everyone 63, 66 (1982), reprinted in Joint Custody and Shared Parenting (J. Folberg, ed.1984).

"Joint custody is synonymous with joint decision making and a common desire to promote the children's best interests. `It is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion,' Braiman v. Braiman, 44 N.Y.2d 584, 589-590 [407 N.Y.S.2d 449, 378 N.E.2d 1019] (1978). . . . [I]n order to be effective `joint custody requires . . . a willingness and ability to work together to reach results on major decisions in a manner similar to the way married couples make decisions.' Taussig & Carpenter, Joint Custody, 56 N.D. L.Rev. 223, 234 (1980)."

Rolde v. Rolde, 12 Mass.App.Ct. 398, 404-405, 425 N.E.2d 388 (1981).

Shared physical custody in particular carries with it substantial obligation for cooperation between the parents. Such an arrangement, by its nature, involves shared commitment to...