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Impact of custodial removal decision can't be ignored.

Byline: Matthew P. Barach

The recent Supreme Judicial Court holding in Miller v. Miller is a game-changer in custodial removal matters and puts the Yannas-Mason standards for child custody removal actions on life support. In Miller (Lawyers Weekly No. -005-1), the court held that when the parties do not have a prior custody order, a judge must perform a functional analysis which may require a factual inquiry regarding the parties respective parenting responsibilities to determine whether the arrangement more closely approximates sole or shared custody and then apply the corresponding standard found in Yannas-Mason. The SJC further took the opportunity to emphasize that the best interests of a child is always the paramount consideration in any question involving removal. In removal actions, the calculus is different depending on the parental arrangement. When one party has sole custody, the real advantage standard of Yannas v. Frondistou-Yannas, 395 Mass. 704, 41 N.E.2d 1153 (195), is applied. However, when the parents share physical custody, the standard articulated in Mason v. Coleman, 447 Mass. 177, 50 N.E.2d 513 (2006), known as the best interests standard, is applied. In an important concurring opinion written by Chief Justice Ralph D. Gants and joined by Justice Frank M. Gaziano, Gants disagreed with what he referred to as the artificially binary decision-making framework that has emerged from the standards of Yannas and Mason. Gants postulated that the ultimate touchstone in all removal cases, whether one parent has sole physical custody or both parents share physical custody, is always the best interests of the child. Smith v. McDonald, 45 Mass. 540, 544, 941 N.E.2d 1 (20), quoting Custody of Kali, 439 Mass. 34, 40, 792 N.E.2d 635 (2003). Gants wrote that he favored discarding the Yannas-Mason framework in favor of a single, uniform standard the best interests of the child to be applied to all removal cases, recognizing that the real advantage to the parent seeking removal is a factor that must be considered under that standard. In a nod to the concurring opinion, the majority opinion held in a footnote that by incorporating this functional (rather than formalistic) inquiry regarding custody into our existing framework, however, we seek to provide trial judges with more discretion when deciding these cases (beyond that inherent in a judges application of either Yannas or Mason). [divider] The Miller decision signals that both functional parenting and the application of what is in the best interest for a child will be the paramount concerns governing child custody cases moving forward. [divider] The footnote further stated that although we do not necessarily disagree with certain of the concurrences concerns, to the extent we must reexamine the wisdom of the Yannas-Mason framework, we wait to do so in a case where the issue has been raised and briefed by the parties. In Miller, the issue of replacing Yannas-Mason was not specifically briefed because those standards did not apply to the child, as she was not a native of Massachusetts and had not resided here for five years when the mother filed her removal request. The court acknowledged, however, that the removal principles developed in other cases were still proper and could be applied even when the specific statutory framework was not met. The SJC affirmed the decision of the lower court whereby allowing the child to remain in Germany with her mother. The practical importance of the decision itself, along with the dicta and the concurring opinion, cannot be ignored by those who practice family law. Massachusetts is now poised to join the majority of states in adopting the best-interest-of-the-child standard for all removal matters. Miller also allows greater flexibility for judges when they are confronted with the often difficult and emotional parental request to relocate a child out of state. In a great irony, only weeks before the oral argument in Miller, the New Jersey Supreme Court adopted a best-interest-of-the-child framework for child custodial removal matters. The real-advantage standard promulgated in Yannas was based on a New Jersey case. The Miller decision also signals that both functional parenting and the application of what is in the best interest for a child will be the paramount concerns governing child custody cases moving forward. It allows greater discretion to judges in removal matters and provides for the framework of ultimately replacing Yannas-Mason with a single standard of best interest of the child to be applied to all child custody removal actions in the commonwealth. I argued at oral argument in Miller that the analysis should start and end with the child. I stressed that we live in a different world than when Yannas was decided by the court. The SJC has now signaled that the child-centered inquiry may soon be applied in all removal matters. As a result, the impact of the decision cannot be ignored, and its reasoning should positively impact and guide child custody and removal matters moving forward until that day arrives. Matthew P. Barach practices at Barach Law Group in Framingham. He represented the wife in Miller v. Miller before the Supreme Judicial Court.

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Title Annotation:Miller v. Miller; Massachusetts
Author:Barach, Matthew P.
Publication:Massachusetts Lawyers Weekly
Date:Feb 8, 2018
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