781.708.4445

info@levinedisputeresolution.com

Divorce Mediation Blog

Wanted: An SJC Case to Challenge the “Real Advantage” Standard: Chief Justice Gants’ Compelling Concurrence in Miller v. Miller

Wednesday, March 07, 2018

Levine Dispute Resolution - Divorce Mediation

Concurrences are rare in family law cases, but when the Chief Justice writes a clear-eyed one with firm conviction, people take notice. C.J. Gants, with Associate Justice Gaziano joining him, did not take issue with majority’s decision, but rather the “analytical gymnastics” necessary to find it. They were right.

The source of the problem is less 1985’s Yannas v. Frondistou-Yannis, though that case alone has doomed the efforts of countless “non-custodial” parents to resist the removal of their children to other jurisdictions than the more problematic case of Mason v. Coleman (2006), or as the concurrence points out, the toxic intersection of the two cases.

It is Mason that undermined decades of effort in the Probate and Family Courts, and among its practitioners, to tone down the fight over custodial labels by fractious parties, by awarding access to the lower-bar “real advantage” removal test to parents with “sole physical custody”, setting up a two-stage fight in every potential removal case: first, does someone have sole physical custody (later modified to be a “functional” test rather than a legal label); and if so, are the childrens’ best interests driven by that individual parent’s personal needs?

It took the Miller case to put this problem into stark relief, presenting a matter where no labels, or functional findings, could have attached previously, since it was the time of divorce. Thus the court had to conclude, based on the messy life of an intact family, who would have been hypothetically denominated the physical custodian. A fiction on top of a fiction – and one that Judge Gants persuasively argues ought to end.

Whether the Mason problem is a product of a fundamental mis-perception of Yannis may be beside the point that both the Miller majority and concurring justice make: that the best interests of the child is meant to be the overarching inquiry for every removal case. For too long practitioners have accurately read the trial court’s predominant “read” of Yannis, namely, that the primary caregiver’s personal needs pretty much trump further inquiry, absent spousal spite, or a child who is too young to yet be bonded to the parent who would be left behind in Massachusetts.

Justice Gants’ point: artificial jousting over the label, or even the “functional” reality of primary caregiving, is too often confounded by informal parenting histories, by self-serving constructs and by too little historical precedent (as in Miller); and it does not serve the ultimate policy of finding and enhancing children’s outcomes via a straight up best interests inquiry. Rather, the exercise can range from pointless to damaging, by obscuring the true issues.

Justice Gants is also right that a primary care parent’s individual needs and interests cannot, and should not, be ignored. The certainly can be critical to a child’s interest; just not always so, and as often, not conclusively. We hope that the opportunity arises for the SJC majority to follow its Chief, as they may have signaled in Miller already, acknowledging but deferring the issue to another day and case, wherein one of the parties directly challenges, briefs and argues the issue on appeal.

We hope that that opportunity comes soon.



Get e-mail notifications of new blog posts! Enter email address below.:



Delivered by FeedBurner

other articles


recent posts


tags

arbitrator divorce arbitrator Same Sex Marriage health coverage Chouteau Levine LDRC rehabilitative alimony divorce arbitrators The Seven Sins of Alimony conciliation separation support orders Boston Massachusetts special master high-risk methodology lawyer-attended mediation Self-adjusting alimony orders litigation Obamacare mediation mediators annulment alimony reform legislation pre-ARA alimony arbitration facilitated negotiations divorce mediation traditional negotiations divorced alimony statute divorce agreement COLA self-adjusting alimony Massachusetts alimony lawyers resolve disputes Child Support Guidelines family law mediation lawyer Major League Baseball Arbitration alimony law divorce mediator medical benefits Massachusetts Alimony Reform Act alimony orders Massachusetts divorce mediators med-arb Twinkies divorce judgment Divorce Levine Dispute Resolution Center arbitrators med/arb divorce lawyers fraud family law Matrimonial Arbitration Uniform Arbitration Act Baseball divorce mediations Levine Dispute Resolution Center LLC General term alimony Levine Dispute Resolutions Family Law Arbitration mediator divorce and family law mediators SJC disputes Defense of Marriage Act Levine Dispute Resolution divorce process family mediation Massachusetts Lawyers Weekly dispute resolution Baseball Arbitration health insurance mediations MLB labor agreement divorce arbitration Divorce Agreements alimony Massachusetts lawyers divorce and family law divorce litigation Act Reforming Alimony in the Commonwealth private dispute resolution Alimony Reform Act IRC §2704 DOMA family law arbitrators family support Cohabitation how baseball arbitration works Massachusetts alimony and child support Baseball Players child support family and probate law disputes divorce mediators family law arbitrator