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


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