Abbott v. Virusso

Kantrowitz, J.

(dissenting). I do not believe that the judge here abused his discretion by denying the mother’s petition to remove one of her two children across the country. I further believe that the judge conducted a thorough hearing and issued a thoughtful decision,1 taking into consideration the necessary factors in his determination of what was in the best interests of the children. I, thus, respectfully dissent.

The ultimate issue, it appears, in removal cases where the custodial parent seeks to move to be with a significant other, is the best interests of the child. See Dickenson v. Cogswell, 66 *340Mass. App. Ct. 442, 449 (2006); Pizzino v. Miller, 67 Mass. App. Ct. 865, 874 (2006).2,3

Trial judges have been applying the best interests test for decades, and typically do so in a highly competent manner; they are well versed, as here, in the considerations that must be balanced.4 “The trial judge is in a position far superior to our own with respect to these judgments, and absent an abuse of discretion, we do not presume to interfere.” Pizzino v. Miller, 67 Mass. App. Ct. at 872.

I need not recite the legal standard that must be satisfied before we can conclude that a judge has abused his discretion. Suffice it to say that in this case, it is my belief that such a conclusion is not warranted.

In a nutshell, the judge found that the son:

a. expressed a desire to stay in Massachusetts and not move to Arizona5;

b. was well-adjusted in his current setting;

*341c. had a close relationship with his sister (who is remaining in the Commonwealth* ****6), which would be weakened if he were removed;

d. had a close relationship with his father, which also would be weakened if he were removed;

e. had an extensive social circle of friends and family in Newton;

f. had a strong relationship with his local extended family, including his uncles, cousins and grandparents, who played an important supportive and developmental role; and

g. was attending a superior school system.7

The mother had no family in Arizona,8 although her retired fiancé, James Seder (who testified that he would move to Arizona even if the mother’s request for removal were denied),9 had family that had recently relocated there. While the mother, who had not obtained work in Arizona, asserted that she would have greater employment opportunities in Arizona as a compounding pharmacist (whereas she had only obtained work in Massachusetts as a part-time “ordinary” pharmacist), and that she would have opportunities to create a nutriceuticals business in Arizona (having failed in such an attempt in Massachusetts), the judge found that the market for compounding pharmacists in the Tucson, Arizona, area was substantially the same as in the Newton area, and that there was no reason to speculate that the mother would be any more successful in run*342ning a nutriceuticals business in Arizona than she had been in Massachusetts. Finally, while the son had a good relationship with Seder, his sister, who apparently blamed Seder for breaking up her parents’ marriage, plainly did not, refusing to stay in the couple’s newly purchased home in Arizona.10

The father currently lives within one and one-half miles of his son, allowing him to participate in his son’s life on a regular basis through sports, school events, and other traditional modes of parental involvement. The boy’s sister, with whom the boy has, as noted, a “tight” relationship, resides with the father, and her inability to accept her mother’s new fiancé would prevent easy visitation between the siblings.11 A cross-country visitation program would impose significant stress on the son,12 exceeding the speculative benefit of the stress relief cited by the mother as an impetus for her relocation.

The situation here is markedly similar to Dickenson v. Cogswell, 66 Mass. App. Ct. at 444-446. The mother in Dickenson sought to move to California with her new husband. In affirming the denial of her request for removal, this court expressed concerns with cross-country visitation, removal of a child from his network of extended family, termination of the father’s common interactions with his son through sports and school-related activities, and the strength of the father-son bond — the very concerns raised here.

Here, as in Dickenson, the mother’s proffered reasons for removal, balanced against the relevant factors weighing against *343relocation, simply do not provide for the best interests of her two children.

On the merits, given the judge’s findings, this does not appear to me to be a particularly close case. Indeed, most of the mother’s arguments address weight, typically a losing proposition. This appears to be a straightforward instance where the advantage of relocation to the mother is outweighed — clearly, I would assert — by doing what is best for her children. The interests of all of the parties were appropriately addressed and a decision rendered thereupon, which reached a correct conclusion: that it is in the best interests of both children that the son not be removed. I would, thus, affirm the decision of the trial judge.

The trial judge was fully aware of the pertinent statute and case law, incorporating them by name and principle in his decision.

Both the Dickenson and Pizzino cases involved the mother of children seeking to relocate to be with her new husband. Whether a different analysis should be applied where the mother seeks to move to join her fiancé, as here, is best left for another day.

The court indicates that neither party maintains that Mason v. Coleman, 447 Mass. 177 (2006), controls, each relying instead upon Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). In Yannas, “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” (emphasis added). Mason v. Coleman, supra at 178. It would appear, thus, that the case at bar is more analogous to Mason than Yannas.

In every case, some findings are more significant than others, upon which the judge is permitted to rely heavily. Here, the siblings enjoyed a close relationship, upon which removal would have a negative effect. The judge was permitted to give more weight to that determination than others. This, of course, does not mean that he was free to ignore other factors that should be considered.

The majority downplays the son’s preference to remain with his father and sister in the Commonwealth where he has lived his life to date. The majority indicates that the son’s preference came from an interview with the judge. While that meeting may have been a source of the information, it was not the only source; the guardian ad litem (GAL) testified as to the son’s preference. As we give children who have reached the age of twelve in termination cases the ultimate determination as to whether to approve adoption, see G. L. c. 210, § 2; Adoption of Ramona, 61 Mass. App. Ct. 260, 266 n.13 (2004), a judge is free to place whatever weight, including significant weight, on the wishes of the child, especially an older one. I recognize that the son was born on *341October 23, 1993, and the judge’s amended memorandum of decision was issued September 13, 2005.

The daughter lives with her father, notwithstanding the divorce judgment order indicating that she was to live primarily with her mother. In the three months prior to trial, the daughter had seen her mother once. The report of the Middlesex County Probate and Family Court’s family service clinic, which investigated this issue, indicated “that the [mother] possessed poor judgment skills on children issues, and recommended that [the daughter] remain in the [father’s] custody.”

While the mother had done some research into Tucson, Arizona, schools, the judge found that the Newton schools were superior, and thus it would be beneficial for the son to remain in the Newton school system.

She was also “estranged from her parents and sisters in the Newton area but ha[d] reestablished her relationship with her parents.”

The mother testified that she would stay in the Commonwealth if removal were not allowed.

The judge, to his credit, considered factors favoring the mother, e.g., the fiancé would provide the mother with financial security so that she could work part-time, thereby making her available more for the son, and the GAL recommended that the mother be allowed to remove the son to Arizona. Countering this was the report of the family service clinic which indicated “that if [the son] was removed to Arizona, it would result in undue stress for both children.” The GAL and the family service clinic had many differing conclusions. Unquestionably, the judge was free to decide which evidence to credit and how much weight to give it.

I realize that the daughter (bom October 31, 1989) may, at some time, go to college, perhaps away from the local area. This apparently was not an issue at trial.

The son’s lack of social connections in Arizona adds to his potential discomfort.