by Jessica Dubin
In E.K. v. S.C., 97 Mass. App. Ct. 403 (2020), the Appeals Court established a new removal inquiry that applies when an out-of-state, non-custodial parent seeks custody of a child living in Massachusetts and requests permission to move the child to the state where that parent resides. Previously, case law had addressed only the standards applicable to requests to remove a child out-of-state by a parent living in Massachusetts, and had established three different inquiries depending on the child’s custodial status.
The parties in this case were never married and had one child. As part of the judgment of paternity, the court awarded the parties shared legal custody of their child, primary physical custody to the mother, and parenting time of one weeknight per week and every other weekend to the father. Approximately six years later, the father filed a Complaint for Modification seeking sole legal custody and permission to move the child to New Hampshire, where the father already lived. He alleged that the mother was acting contrary to the health, education and welfare of the child by unilaterally stopping the child’s medication, withdrawing him from a special needs school program without the father’s consent, and maintaining uninhabitable living conditions. After a bench trial, the judge found for the father.
The Appeals Court’s Decision
After concluding that the trial judge’s detailed findings of fact supported her conclusion that a material and substantial change of circumstances had occurred warranting a change in custody, the Appeals Court turned to the novel question of what removal inquiry should apply when a non-custodial parent seeks to relocate a child out-of-state to the state where that parent resides. The Court set forth a three-part inquiry:
- First, the judge must analyze whether a parent’s move out-of-state was motivated by a desire to deprive the custodial parent of time with the child. If the judge finds that the intent of the move was not to interfere with the custodial parent’s relationship with the child and that the move was not designed to establish a basis to request a change in physical custody, then the judge should proceed to the second inquiry.
- Second, the judge must determine whether the out-of-state parent is rooted in the community where that parent seeks to move the child. Factors analyzed as part of this inquiry may include the parent’s employment, financial situation, housing, family composition, and social and emotional benefits of that parent’s circumstances. If the judge finds that the parent is rooted in the community, this may be considered a “real advantage” to that parent. Once the out-of-state-parent demonstrates a “good, sincere reason” for the move, the judge should proceed to the third inquiry.
- If the first two inquiries favor the out-of-state parent, then the judge must determine the best interests of the child, including the impact the proposed move would have on each parent and the resultant effect on the child. The factors to be considered in this analysis include: “(1) whether the quality of the child’s [life] 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.” Murray v. Super, 87 Mass. App. Ct. 146, 150 (2015), quoting Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006).
Applying the “clearly erroneous” standard of review, the Appeals Court affirmed the trial judge’s findings that the father’s move to New Hampshire occurred long before any custody modification proceeding was contemplated and that he was firmly rooted in his community. Accordingly, the Court concluded that the father’s decision to move to and remain in New Hampshire provided him with a real advantage. Proceeding to the best interests of the child analysis, the Court held that the trial judge’s findings addressed all of the Murray factors and were supported by the record. The Court accepted the judge’s final determination that the father had the better ability to address the child’s significant needs.
Four different removal inquiries now exist. Which inquiry will apply depends on the facts of each particular case. The four inquiries that exist after E K. v. S.C. are as follows:
- when a parent who lives in Massachusetts has sole physical custody and seeks removal to another state, that request is analyzed using the real advantage standard pursuant to Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985);
- when a parent who lives in Massachusetts has shared physical custody and seeks removal to another state, that request is analyzed using the best interests of the child standard pursuant to Mason v. Coleman, 447 Mass. 177, 184-185 (2006);
- when a parent who lives in Massachusetts seeks removal to another state and no prior custody order exists, a judge must first perform a functional analysis regarding the parties’ respective parenting responsibilities to determine whether those more closely approximate sole or shared custody, and then apply the corresponding Yannas or Mason standard, pursuant to Miller v. Miller, 478 Mass. 642, 643 (2018); and
- when a non-custodial parent who lives outside of Massachusetts seeks removal to the state where the parent resides, the request is analyzed using the three-pronged inquiry outlined above pursuant to E.K. v. S.C.
 Although beyond the scope of this article, the Appeals Court also resolved these procedural issues: (i) motions for reconsideration continue to be subject to the requirements of Standing Order 2-99 even though such motions were deleted from the Standing Order in 2012; (ii) although the trial judge should not have issued a temporary order changing custody without contemporaneous findings of fact, her failure to do so should not result in reversal on technical grounds when the mother failed to demonstrate prejudice from the delayed findings of fact; and (iii) the trial judge did not abuse her discretion in denying the mother’s motion to reopen evidence.
Jessica Dubin is a partner at Lee & Rivers LLP where she concentrates her practice on all aspects of family law. Jessica is a member of the Boston Bar Association’s Council and Family Law Section Steering Committee, and serves on the Board of Editors of The Boston Bar Journal.
In an opinion at the intersection of family and constitutional law, the Massachusetts Supreme Judicial Court (SJC) recently examined a parental non-disparagement order issued in child custody proceedings. In Shak v. Shak, 484 Mass. 658 (2020), the SJC held that an order prohibiting parents from disparaging one another was an unconstitutional restraint on speech in violation of the First Amendment to the United States Constitution and Article 16 of the Declaration of Rights, as amended by art. 77 of the Amendments.
Masha and Ronnie Shak had one child. When the child was one-year old, Masha filed for divorce and soon sought an emergency motion requiring Ronnie to vacate the marital home. A Probate and Family Court judge granted Masha temporary sole custody of the child and ordered Ronnie to vacate the home. The judge also issued temporary orders restraining both parents from posting information about the litigation on social media or disparaging the other, “especially when within the hearing range of the child.” Id. at 659.
Masha thereafter filed a complaint for civil contempt alleging that Ronnie had published numerous disparaging posts on social media in violation of the order. Ronnie answered, in part, that the judge lacked authority “to issue [a] prior restraint on speech.” Id.
At the contempt hearing, a second Probate and Family Court judge held that the non-disparagement order as entered constituted an impermissible prior restraint of speech. The judge concluded, however, that a more narrowly drawn non-disparagement order that furthered a compelling State interest would be acceptable. The second judge redrew the non-disparagement order in language that (1) limited the prohibition on social media posts to disparagement “about the other party’s morality” or parenting ability; (2) prohibited any non-media disparagement only where the child was within 100 feet of the disparaging parent or where the child might otherwise see, hear or read the disparagement; and (3) provided for termination of the order on the child’s fourteenth birthday. Id. at 660.
Rather than immediately implementing the new, narrower order, the judge reported two questions to the Appeals Court. First, are non-disparagement orders issued in the context of divorce litigation an impermissible restraint on free speech? Second, does protection of a minor child’s best interest render non-disparagement orders issued in the context of divorce litigation a compelling public interest and, therefore, a permissible limitation on free speech? The SJC granted an application for direct appellate review but declined to address the specific reported questions and, instead, considered whether the second judge’s non-disparagement order could stand.
“The term ‘prior restraint’ is used ‘to describe any administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.’” Id., at 661, citing Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984). By definition, a non-disparagement injunction prevents speech that has not yet happened is therefore a prior restraint. The SJC stressed that prior restraint on otherwise protected speech is the “most serious and the least tolerable infringement on First Amendment rights.” Id. at 661, quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Therefore, a prior restraint on speech is acceptable only where the harm avoided is “grave”; the probability of the harm absent restriction is “all but certain”; and there exists no less restrictive means to mitigate the harm. Id. at 662. In short, prior restraint on speech requires exceptionally significant justification. Id. at 663, citing Commonwealth v. Barnes, 461 Mass. 644, 652 (2012).
The SJC accepted hypothetically the Commonwealth’s interest in protecting children “from emotional and psychological harm that might follow from exposure to one parent’s … disparaging words about the other,” but declined to hold that the interest is sufficiently “weighty” to justify prior restraints on speech. Id. at 663-64. The SJC held that in Shak, there was no showing that, absent the order, harm to this particular child was “either grave or certain. . . .” Id. at 664. Noting the child’s young age, inability to read social media, and the absence of evidence of unique vulnerabilities, the SJC held the order unconstitutional due to lack of findings of grave, imminent harm to the child. The SJC continued that concerns about potential harm should the child discover the speech in the future were too speculative to justify a prior restraint. In so concluding, the SJC noted that anti-harassment and tort remedies may be available to a disparaged parent and voluntary non-disparagement agreements entered into by parents remain enforceable. It further reminded lawyers and parents that a parent’s disparaging language may well factor into custody determinations.
Shak instructs family law attorneys seeking non-disparagement orders to offer case-specific evidence of a child’s unique vulnerabilities, perhaps with evidence of past harmful consequences of the child’s exposure to parental conflict. Expert testimony might well bolster such evidence. However, even if one secures a non-disparagement order, enforcement through contempt proceedings can be difficult. The order must be clear and unequivocal. In re Birchall, 454 Mass. 837, 838-39 (2009). Furthermore, courts may struggle with remedies for parents disparaging one another. But cf. Schechter v. Schechter, 88 Mass. App. Ct. 239, 247-48 (2015) (affirming suspension of parenting time where father’s negative behavior included disparaging mother in child’s presence).
Enforcement difficulties aside, family law attorneys should not misconstrue Shak to mean that non-disparagement orders should be avoided as unconstitutional. Indeed, the SJC especially endorsed voluntary non-disparagement orders, crafted by parties committed to civility, and cooperation. These agreements focus on the children’s best interests and remind parents that children benefit from parental harmony. Voluntary orders repeat what thoughtful parents already know: children experience disparaging language as conflict, and divorce conflict stresses children. The parents’ mutual promises in a notarized, court-approved agreement to refrain from harmful conduct may be far more meaningful to children and parents than a court-imposed speech limiting order ever could be.
Fern Frolin is Of Counsel to Mirick O’Connell, where focuses her practice on complex matrimonial cases. She strongly believes that nearly all family law matters can and should be settled and that the best matrimonial lawyers counsel their clients to consider their children’s best interests paramount in their settlement negotiations.
Tim Braughler is a Partner of Mirick O’Connell in the firm’s Boston office. Tim specializes in all aspects of family law including divorce, child custody, child support, alimony, paternity, adoptions, restraining orders, and pre- and post-nuptial agreements.