Miller v. Miller (Lawyers Weekly No. 10-005-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12298 BENJAMIN H. MILLER vs. JOANNA ISABELLA MILLER. Middlesex. September 6, 2017. – January 12, 2018. Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ. Divorce and Separation, Child custody. Minor, Custody. Parent and Child, Custody. Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on May 20, 2013. The case was heard by Patricia A. Gorman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Elaine M. Epstein (Richard M. Novitch also present) for the husband. Matthew P. Barach (Melinda J. Markvan also present) for the wife. CYPHER, J. The husband, Benjamin H. Miller, appeals from a Probate and Family Court judgment permitting the wife, Joanna Isabella Miller, to remove and relocate the parties’ daughter to Germany, the wife’s home country. We have previously held that when deciding whether removal should be permitted, the particular criteria depends on whether physical custody of the child is sole or shared. Where the parent seeking removal has sole physical custody, his or her removal petition is analyzed using what has been called the “real advantage” standard of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). Where, however, the parents share physical custody, a parent’s removal request is evaluated using the standard articulated in Mason v. Coleman, 447 Mass. 177 (2006), known as the “best interests” standard. In this case, no prior custody order existed to guide the trial judge as to whether the Yannas or Mason analysis should apply. In such circumstances, we hold that the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties’ respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard.[1] We also take this opportunity to emphasize that the best interests of the child is always the paramount consideration in any question involving removal. We are satisfied that the judge conducted the requisite functional analysis here, and in determining whether removal was in the child’s best interests she afforded considerable weight to the benefits the proposed move to Germany would offer the wife, the child’s primary caregiver. Because we discern no abuse of discretion or error of law from the judge’s consideration of […]