Jordan v. Mulvey
Jordan v. Mulvey
Opinion of the Court
Kaye Mulvey (the mother) appeals from an amended judgment, entered after an order of remand from this court
We review a judge's decision regarding the removal of a child for abuse of discretion or an error of law, accepting the judge's findings unless shown to be clearly erroneous.
Discussion. The mother contends that the judge abused her discretion by denying the mother's request to remove the child and by not properly weighing the five factors identified in Yannas,
A. Real advantage. "In determining whether cause for removal by the parent with primary physical custody has been shown under the statute, the judge must consider the custodial parent's request under the familiar two-prong 'real advantage' test set forth in Yannas,
Here, the judge found, the record supports, and the father does not contest, that the mother had a sincere reason to remove the child to Minnesota, and that the request was not made to deprive the father of access to the child. Moreover, the judge concluded that a move to Minnesota would provide a real advantage to the mother as she would have financial and emotional support from her family. See Pizzino v. Miller,
B. Best interests of the child. Once the judge has determined that the reasons for the proposed move are sincere, and that removal offers a "real advantage" to the custodial parent, the judge must then look at a number of factors "collectively" to determine whether removal is in "the best interests of the child." Yannas, supra at 711-712. We remanded this matter for a fuller consideration of all of the relevant Yannas factors in Jordan I. The mother maintains that the judge again failed to consider all of the factors and gave disproportionate weight to one factor-the impact on the father-child relationship.
The Yannas factors are: "(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,
Here, after remand, the judge made additional findings of fact that explicitly addressed all of the Yannas factors. First, it is true, as the mother argues, that "the best interests of a child are ... interwoven with the well-being of the custodial parent." Yannas,
To her great credit, the mother had maintained sobriety for three years. However, the judge found that the mother left Minnesota to move to Massachusetts because of "triggers," i.e., her network of friends and others in Minnesota that contributed to her struggles with alcohol. The judge also credited the father's testimony that the mother had a difficult relationship with her mother. The judge recognized that the mother has moved away from Minnesota twice before, and was not convinced that a return to Minnesota on this occasion would improve her well-being, and therefore that of the child.
Furthermore, the judge found that the mother did not present evidence other than a plan to return to school in Minnesota, and did not establish the existence of greater employment opportunities in Minnesota than the opportunities she has had in Massachusetts.
The judge was able to listen to the mother's testimony and observe her demeanor while in court and concluded that "a move back to Minnesota [would not] result in the happiness which [the Mother sought]." See Custody of Eleanor,
The judge also considered the additional Yannas factors in reaching her conclusion. After hearing the testimony of the father's and mother's experts, the judge found that the move would seriously and negatively affect the child's relationship with his father and that curtailment of that relationship would have an adverse effect on the child's development. See Cogswell,
In Jordan I, we remanded the matter for a more detailed explanation of the judge's application of the Yannas factors, including her findings based on the expert's testimony regarding the "possibility" that the child's moving could have "dire consequences." On remand, she made further findings on multiple factors, and in assessing the interests of the child, made explicit findings regarding the harm that she found the child "would" suffer, as distinguished from the child being put "at risk" of harm. Contrary to the mother's assertion, the judge in her remand decision did not place "disproportionate emphasis" on the effect of the proposed separation from the father in reaching her conclusion.
The weight of the evidence is for the trial judge. See Custody of Eleanor,
A final word is in order. Legal proceedings are a blunt instrument with which to calibrate the intricacies of human relationships. Nothing in this memorandum and order should be considered a criticism of the parents or their families or a referendum on the parenting skills of one or the other parent. The record reflects that the child has two loving parents and a welcoming extended family. The trial judge decided that a move to Minnesota would not provide enough of a benefit to the mother to improve the child's welfare, and that the child's best interests were best served by remaining in close proximity to both parents in Massachusetts. While one parent in any removal proceeding will always be disappointed in the decision of the court, both parents here have demonstrated a deep love of, and commitment to, this child. Our decision affirming the trial judge's order affirms the judge's recognition of the positive benefits of that commitment.
Amended judgment affirmed.
See Jordan v. Mulvey,
The child was fourteen months old at the time of the trial.
"The statute is intended to 'preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationships, while balancing those rights with the right of the custodial parent to seek a better life for himself or herself.' " Miller v. Miller,
The mother denied that she had told the father that her friends or family were a trigger. The judge was permitted to credit the father's testimony. See Custody of Eleanor,
The mother has held various jobs while living in Massachusetts-waitress, nanny, receptionist, daycare provider, and recruiter at a law firm.
The mother testified that she "would be very happy to fly back here four times a year or whatever the [c]ourt found right" and that she would "try to make it as easy as possible on [the father] when he came to Minnesota."
The judge stated, "This decision is not about the father and the fact that his visitation with his [child] will be disrupted; it is about this particular young child and the effects that the proposed move would have on him."
Case-law data current through December 31, 2025. Source: CourtListener bulk data.