Changing your Parenting when a Case is Pending May Be Too Little Too Late for the Appeals Court

The Massachusetts Appeals Court recently provided an overview of the two-part test for deciding if a custodial parent can move out of state with their child in Rosenwasser v. Rosenwasser.   The father in Rosenwasser requested the court's permission to move to Florida with the parties' minor child.  The trial court denied his request after applying the two-part test from the Yannas case.  However, the appeals court disagreed with how the trial court applied the test and focused specifically on a change the mother made to her parenting only recently.

The appeals court agreed with the trial court that the father met the first prong of the Yannas test because there was a "real advantage" to him moving to Florida, namely decreased expenses and family support.  In addition, the request to move did not appear to be motivated by a desire to deprive the mother of time with the child.

The second part of the Yannas test requires the court to determine if the move is in the "best interest of the child" taking into account numerous factors:

1. "whether the quality of the [child's] li[fe] will be improved, including any improvement that 'may flow from an improvement in the quality of the custodial parent's life';"
2. "any possible 'adverse effect of the elimination or curtailment of the [child's] association with the noncustodial parent';"
3. "the extent to which moving or not moving will affect the [child's] emotional, physical, or developmental needs;" 
4. "the interests of both parents;" and 
5. "the possibility of an alternative visitation schedule for the noncustodial parent."

The trial court found that the move would not be in the child's best interest based primarily on the effect the move would have on the child's development and the relationship with the mother.  The appeals court disagreed with how the trial court weighed the factors.  Specifically the appeals court focused on the weight the trial court gave the mother's relationship with the child, and indicated that it wasn't appropriately weighed against the benefits of the move to the father.  

On the one hand, this could be seen as the appeals court double counting the "real advantage" to the father.  This approach makes it very difficult for a non-custodial parent to succeed on the second part of the Yannas test if the "real advantage" is already established and needs to be weighed heavily in the second part as well.  This has been addressed in previous cases that have held the "best interests of a child are so interwoven with the well-being of the custodial parent."

On the other hand, the appeals court was not just focused on the father's interests, but also specifically  focused on the fact that the mother had only recently stepped up her involvement with the child. 

"While the mother's 'near perfect' adherence to the parenting schedule during the five months in which the trial was pending is commendable, it does not erase the substantial time that she already missed."  

It is possible to argue that the mother only stepped up her parenting time adherence when faced with a reduction in her support.  It is also possible that the mother, when faced with the real possibility of having her child move far away, realized how important her time with the child was.  Either way, the appeals court's focus on this factor is an important reminder that the court is often not swayed by what people write in an agreement or say they're going to do.  It is much more important what people actually do.  

Also notable in the case is the appeals court's choice to send the support calculation back to the lower court.  The lower court used the approach provided by the parties' previous agreement by using the husband's base to calculate alimony and then a percentage of his variable income.  However, the trial court reduced his support using a lower base, but kept the percentage starting at a higher figure, thereby creating a gap in the support calculation.  If this was intentional it wasn't made clear in the trial court's decision and therefore not justified according to the appeals court.  Clearly the trial court had discretion to decrease the father's support and to use the variable approach that the parties preferred in their agreement.  However, modifying this type of agreement requires attention to detail, something to consider when creating self-modifying support agreements that could be relied on later by the court.