Divorce Mediation Blog

Making A Bad Situation Worse: Rosenwassser v. Rosenwasser

Wednesday, August 10, 2016

In Rosenwasser v. Rosenwasser Massachusetts Appeals Court recently faulted a trial judge for denying a father’s request to “remove” his daughter to the State of Florida, dissecting her application of the facts to the two-pronged “real advantage” test that governs such requests by primary custodial parents, with painstaking care and convincing detail. Piling one critical point on another, the opinion yielded two inevitable conclusions: that the trial court ineffectively weighed and explained the advantages for the father in his requested move; and she over-weighted the hope that the mother’s recent efforts to kindle a relationship with the child would result in a benefit for the child. All signs pointed plainly to reversal.

Then, without explanation, but inexplicably calling it a “close call”, the Appeals Court remanded the case for more trial court hearings, more written findings, very probably another appeal; deferring any final decision and prolonging the agony for another family in limbo. A really fine decision turned bad: a victim of appellate irresoluteness.

Too often, as we learn again, litigation is a futile exercise in matters involving children.

Here’s why. The child was in utero when the parties separated in 2010. Shortly after the divorce, the mother became unavailable for mental health reasons. By 2012 a partial modification judgment formalized the father’s assumption of exclusive care for the child, a fact on the ground since shortly after her birth. For two of the child’s first three years, her mother was an infrequent presence in her life.

In August 2012, the father sought permission to move, for very strong reasons under the law. Trial did not begin until a year later and concluded five months after that. The trial court’s new judgment entered in July 2014. The husband’s appeal absorbed another 24 months, resulting in the Appeals Court opinion on June 17, 2016.

Just since the father filed his request to move child has aged from two to six years, fully two-thirds of her young life. With the Appeals Court’s tepid remedy, the clock continues to run, and it is fair to predict that this case will continue into 2017 and perhaps well beyond. The facts on the ground change daily, as the system grinds on, blind to the stress that this process imposes on a young child, whose road is difficult enough.

One bedrock principle that appellate law imposes on the trial court is that a judgment must logically flow from the facts found in the case. We wish that the Appeals Court applied this standard to itself.

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