Smith v. Mcdonald

• Decision Date: 14 December 2010
• Docket Number: SJC–10670.
• Citation: 941 N.E.2d 1,458 Mass. 540
• Parties: Stephen D. SMITH, Jr.v.Danielle McDONALD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 540

941 N.E.2d 1

Stephen D. SMITH, Jr.

v.Danielle McDONALD.

SJC–10670.

Supreme Judicial Court of Massachusetts, Worcester.

Submitted Oct. 7, 2010.Decided Dec. 14, 2010.

Barbara J. Katzenberg, for the mother.Julie A. Rougeau (Leila Wons & William Hickey with her), Franklin, for the father.Christina L. Paradiso & Edward M. Ginsburg, for Legal Assistance Corporation of Central Massachusetts, amicus curiae, submitted a brief.Present: MARSHALL, C.J., SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ. ¹COWIN, J.

A child was born to the defendant, Danielle McDonald (mother), and the plaintiff, Steven D. Smith, Jr. (father), who were not married. When the child was six months old, the mother moved with the child from Massachusetts to New York. Subsequently, as part of the proceedings at issue in this case, the plaintiff was determined to be the legal father of the child. A judge of the Probate and Family Court ordered the child returned to Massachusetts, gave sole physical custody to the mother, and awarded visitation rights and joint legal custody to the father. The mother challenges various provisions of the judgment. The evidence supports the judge's determination that the best interests of the child require a meaningful opportunity for a father-child relationship, and the judge acted within her discretion in developing a plan to increase contact between the father and the child. However, the judge's order to return the child to Massachusetts exceeded her statutory authority, and the judge's decision to award joint legal custody was not supported on this record. Given the current circumstances of the parties, the case requires further action by the judge in the Probate and Family Court, and we remand for that purpose.²

1. Background and prior proceedings. We set forth the following facts drawn from the findings of the Probate and Family Court judge, reserving some facts for later discussion. The mother and father met and conceived the child in late 2006. The parties never married. Their relationship ended within a few months, but they remained in contact during the pregnancy and discussed visitation and child support. The mother did not want the father present at the birth, but told him that he would be listed on the birth certificate. The child was born on August 29, 2007. The father began paying voluntary child support of $400 every two weeks, and visited the child for a few hours each week, in sessions supervised by the mother. At the time, the mother lived in Milford and the father lived in Bellingham, approximately fifteen to twenty minutes away.

Early in 2008, the visitation arrangement deteriorated. The father discovered that he was not on the child's birth certificate, and on February 21, 2008, he filed a complaint and motion for temporary orders in the Probate and Family Court. He sought to establish paternity, formalize child support, and obtain both unsupervised visitation rights and a requirement that the parents notify each other before taking the child to another State.³ He visited the child at the mother's home in Milford on February 27, 2008, but did not inform the mother of the court action until March 1, 2008, when they spoke by telephone. During his last visit, the father did not observe any signs that the mother was about to move.

On February 28, 2008, the mother vacated her apartment in Milford. On March 1, 2008, she moved to Batavia, New York, approximately 400 miles from the father's home in Bellingham. The mother did not tell the father of the move when they spoke on the telephone that day. He learned that the mother and child had moved when, several days later, service of the complaint on the mother was attempted at her Milford apartment.

After receiving this information, the father sought and obtained an ex parte temporary order that the mother and child return to Massachusetts immediately. The order was stayed pending trial. Prior to trial, the parties filed a stipulation for voluntary acknowledgment of parentage affirming the father's paternity. The parties do not dispute that the father paid voluntary child support until trial began in July, 2008. During trial, the father added a request for joint legal and physical custody.

The trial judge entered a judgment in December, 2008, and findings of fact and conclusions of law followed. The judge found that, while the father was dedicated to developing a relationship with his offspring, the mother believed the father did not deserve time with the child. The mother refused to give the father unsupervised time with the child, was “hostil[e]” in her communications, hindered the father's efforts to obtain more visitation, and intentionally concealed her plan to relocate.

With respect to the relocation, the judge determined that the mother had moved without permission of the father or the court. Applying the test set forth in Yannas v. Frondistou–Yannas, 395 Mass. 704, 711–712, 481 N.E.2d 1153 (1985) ( Yannas ), the judge found that the mother had not shown that moving to New York offered a “real advantage” to the mother or the child. The mother claimed she had relocated because her own mother lived in Batavia and because the costs of living were lower there. The judge found, however, that her real purpose was to deprive the father of a relationship with the child. Furthermore, the mother had not demonstrated that she had gained any economic, social or emotional advantage from the move. The judge concluded that the relocation to New York was not in the best interests of the child, the mother, or the father. The move “significantly impacted bonding” between the father and child at a “critical age” when the child needed consistent contact with both parents; deprived the mother and child of support systems in Massachusetts; and reduced substantially the father's visitation with the child.

The judge ordered the child returned to Massachusetts within sixty days, and prohibited future removal absent permission of the other parent or the court. The judge awarded the mother sole physical custody and gave the parties joint legal custody. The father was ordered to pay child support in the amount of $260 per week and provide health insurance for the child. The judge ordered that the father have a schedule of “parenting time” with the child that gradually increased over several months, progressing to overnights after two months and weekends after four months, as well as holidays and increasingly long summer vacations.

After the judgment entered, the mother sought and obtained a stay of the order to return to Massachusetts from a single justice of the Appeals Court. The same single justice later vacated the stay effective May 11, 2009, and the mother and child moved back to Massachusetts.⁴ The mother appealed from the judgment of the Probate and Family Court, and we transferred the case sua sponte.⁵

2. Legal framework. The best interests of the child is the “touchstone inquiry” in child custody, visitation, and relocation cases. Custody of Kali, 439 Mass. 834, 840, 792 N.E.2d 635 (2003); Yannas, supra at 710–711, 481 N.E.2d 1153. On the basis of the evidence presented, the judge must identify the parenting and living arrangement that “can best satisfy the child's welfare and happiness.” Opinion of the Justices to the Senate, 427 Mass. 1201, 1204, 691 N.E.2d 911 (1998). While “the feelings and the wishes of the parents should not be disregarded, the happiness and the welfare of the child should be the controlling consideration.” Vilakazi v. Maxie, 371 Mass. 406, 409, 357 N.E.2d 763 (1976), quoting Jenkins v. Jenkins, 304 Mass. 248, 250, 23 N.E.2d 405 (1939). At the same time, the court must not pursue blindly some “optimum” arrangement for the child and must give due regard to the adequacy of the status quo. Custody of Kali, supra at 843, 792 N.E.2d 635.

The statute governing nonmarital children,⁶ G.L. c. 209C, establishes a comprehensive scheme for determining paternity and for establishing child support, visitation, and custody rights for children born outside of a marriage. The statute declares that nonmarital children “shall be entitled to the same rights and protections of the law as all other children.” Id. at § 1. A putative father of a nonmarital child may become a legal parent in one of two ways only: through an adjudication, or by filing a voluntary acknowledgment of paternity executed by both parents. Id. at § 2. ⁷ Once paternity is established, however, the father, if not unfit, has a constitutionally protected right to parent and maintain a relationship with his child. See C.C. v. A.B., 406 Mass. 679, 685–686, 550 N.E.2d 365 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651–652, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). The court may award custody and visitation rights to an adjudicated father, G.L. c. 209C, §§ 1, 10, and may order an adjudicated father to provide financial support and health insurance for a child, id. at § 9.

Prior to a legal determination of paternity, the child's mother is vested with sole physical and legal custody, and that custody arrangement continues even after paternity is established until modified by a court. See G.L. c. 209C, § 10 ( b ).⁸ In modifying custody, the court may award sole custody to either parent or joint custody to both parents “as may be appropriate in the best interests of the child.” See id. at § 10 ( a ). Joint custody may be awarded, however, only if the parents previously have made a formal custody arrangement approved by the court, or if the court finds the parents have demonstrated an ability to cooperate in raising the child. ⁹ Moreover, the statute provides a framework for the court's “best interests” analysis by requiring the court to preserve the child's relationship with the “primary caretaker parent” when possible, and by mandating consideration of preexisting parental and living arrangements. ¹⁰ These statutory requirements “neither replace the ‘best...