McGRATH, Judge.
{¶ 1} Defendant-appellant, James L. Hazlett, appeals from the judgment of the Franklin County Court of Common Pleas denying his petition to contest his sex-offender reclassification under Ohio's Adam Walsh Act ("the AWA").
{¶ 2} A Franklin County grand jury indicted appellant on January 4, 1980, on one count of aggravated burglary and one count of rape. Appellant entered a guilty plea to rape on May 28, 1980, and a nolle prosequi was entered on the aggravated-burglary charge. Thereafter, appellant was sentenced to a 6-to-25-year term of incarceration. On June 27, 1986, appellant was released from prison, and on July 16, 1987, appellant was further released from all parole supervision.
{¶ 3} In 1996, the General Assembly enacted Am. Sub. H.B. No. 180 ("Megan's Law"), which repealed prior versions of R.C. Chapter 2950 and created a registration and classification system for sex offenders. Under Megan's Law, sex offenders fell into one of three classifications, sexually oriented offenders, habitual sexual offenders, or sexual predators, based upon the crime committed and the findings made by the trial court at a sexual-classification hearing. A sex offender who was not classified as either a sexual predator or a habitual sexual offender was designated a sexually oriented offender by operation of law, and no hearing was required. Green v. State, 1st Dist. No. C-090650, 2010-Ohio-4371, 2010 WL 3610203, ¶ 1. Ohio enacted its version of the AWA, 2007 Am. Sub. S.B. No. 10 ("S.B. No. 10"), which replaced the classification system of Megan's Law with a tier system consisting of three tiers dependent solely on the offense of conviction. State v. Watkins, 10th Dist. No. 09AP-669, 2010-Ohio-4187, 2010 WL 3480329, ¶ 4.
{¶ 4} There is no evidence in the record that appellant was ever judicially classified as a sexual offender, but, rather, it appears his classification arose by operation of law. In 2007, appellant received notification that pursuant to S.B. No. 10, he would be reclassified as a Tier III offender based upon his conviction for rape and that as a Tier III offender he would be required to report to the local sheriff every 90 days for life.
{¶ 5} On January 30, 2008, appellant filed a petition to contest reclassification, asserting various constitutional challenges to S.B. No. 10. The same day, appellant filed a motion to stay the enforcement of community notification pursuant to R.C. 2950.11. On January 31, 2008, the trial court granted appellant's motion by entry staying enforcement of community notification until a decision was issued on appellant's petition contesting reclassification.
{¶ 6} On October 16, 2009, the trial court rendered a decision that denied appellant's petition to contest reclassification, and the same decision vacated the entry staying community notification. In denying the petition to contest reclassification, the trial court upheld S.B. No. 10 against all the constitutional challenges raised by appellant.
{¶ 7} This appeal followed, and appellant brings the following five assignments of error for our review:
Assignment of Error Number One
The trial court erred when it held that the reclassification provisions in the Adam Walsh Act did not violate the separation-of-powers doctrine.
State v. Bodyke, [126] Ohio St.3d [266], 2010-Ohio-2424, [933] N.E.2d [753], approved and followed.
Assignment of Error Number Two
The trial court erred when it held that the Adam Walsh Act applied to individuals who had no previous duty to register as sex offenders under prior law.
Assignment of Error Number Three
The trial court erred when it held that Senate Bill 10, as applied to those convicted of offenses committed before its effective date, but sentenced after that date, did not violate the ex post facto prohibition of Article I, Section 10 of the United States Constitution.
Assignment of Error Number Four
The trial court erred when it held that the application of the provisions of Senate Bill 10 to those convicted of offenses committed before its effective date, but sentenced after that date, did not violate the ban on retroactive laws set forth in Article II, Section 28, of the Ohio Constitution.
Assignment of Error Number Five
Retroactive application of S.B. 10 violates the Double Jeopardy Clauses of the United States Constitution's Fifth Amendment and Article I, Section 10 of the Ohio Constitution.
{¶ 8} In the recently decided case of
State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753, the Supreme Court of Ohio concluded, "R.C. 2950.031 and 2950.032, the reclassification provisions in the AWA, are unconstitutional because they violate the separation-of-powers doctrine." Id. at ¶ 2. The Supreme Court emphasized the importance of separation of powers and noted that the court has "held that `[t]he administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers.`" Id. at ¶ 45, quoting
State ex rel. Johnston v. Taulbee (1981),
66 Ohio St.2d 417, 20 0.0.3d 361,
423 N.E.2d 80, paragraph one of the syllabus. Concluding that R.C. 2950.031 and 2950.032 are unconstitutional, the Supreme Court chose severance as a remedy. Specifically, the Supreme Court stated, "As a remedy, we strike R.C. 2950.031 and 2950.032, hold that the reclassifications of sex offenders by the attorney general are invalid, and rein-state prior judicial classifications of sex offenders." Id. at ¶ 2.
{¶ 9} Shortly after Bodyke was decided, the Supreme Court of Ohio decided Chojnacki v. Cordray, 126 Ohio St.3d 321, 2010-Ohio-3212, 933 N.E.2d 800. In that case, the defendant was classified as a sexually oriented offender under Megan's Law and was notified by a letter from the attorney general that he had been reclassified under S.B. No. 10 as a Tier II offender. The defendant filed a petition to contest the application of S.B. No. 10 and, because he was indigent, sought the appointment of counsel. The trial court denied the defendant's motion for appointment of counsel, and on appeal the appellate court sua sponte dismissed the appeal for lack of a final, appealable order. The Supreme Court of Ohio in Chojnacki reiterated, "In Bodyke, we severed R.C. 2950.031 and 2950.032, the reclassification provisions of the Adam Walsh Act, and held that after severance, those provisions could not be enforced." Id. at ¶ 5. Noting that the reclassification hearing that resulted in the appeal and the related certified question "arose under the now-severed provisions of R.C. 2950.031 and 2950.032," the Supreme Court dismissed the appeal. Id. at ¶ 6.
{¶ 10} Here, we are presented with a defendant whose sex-offender status prior to the enactment of S.B. No. 10 arose not by judicial determination but, instead, by operation of law. An argument has been made that Bodyke is not applicable to such sex offenders, and indeed two appellate districts have so held. Green, 2010-Ohio-4371; Boswell v. State, 12th Dist. No. CA2010-01-006, 2010-Ohio-3134, 2010 WL 2653379. Green and Boswell held that where there is no prior judicial order classifying a sex offender, reclassification by the attorney general under S.B. No. 10 does not violate the separation-of-powers doctrine under Bodyke because it does not require the opening of a final court order or a review by the executive branch of a past decision of the judicial branch. Green, syllabus; Boswell. {¶ 11} We agree that this is a conceivably correct interpretation of Bodyke and that Bodyke's language appears to limit its separation-of-powers holding to judicially classified sex offenders and not those sex offenders classified by operation of law. However, the remedy of Bodyke, as later clarified and reaffirmed in Chojnacki was complete and total severance of the provisions providing for the attorney general's authority to reclassify sex offenders. The severance makes no distinction between those classified judicially and those classified by operation of law. Moreover, after Bodyke was rendered, the Supreme Court was asked for clarification on this very issue, but declined to offer either reconsideration or clarification, which suggests the effect of severance is applicable to all sex offenders whether classified judicially or by operation of law.
{¶ 12} Being a court of inferior jurisdiction to the Supreme Court of Ohio, we must follow its mandates. State v. Ryan, 10th Dist. No. 08AP-481, 2009-Ohio-3235, 2009 WL 1911863, ¶ 48. See also State v. Land, 3d Dist. No. 2-07-20, 2007-Ohio-6963, 2007 WL 4494776, ¶ 9; State v. Withers, 10th Dist. No. 08AP-39, 2008-Ohio-3175, 2008 WL 2553085, ¶ 13. While there is much debate over what the Supreme Court of Ohio may have meant or intended when it decided Bodyke and Chojnacki we, as a court of inferior jurisdiction to that of the Supreme Court, are bound to follow what it did, which was to sever as unconstitutional R.C. 2950.031 and 2950.032. Given that the statutory provisions authorizing the attorney general to reclassify sex offenders have been severed and excised from the Ohio Revised Code, we find the action taken by the Supreme Court in Bodyke, i.e., reinstating sex offenders to their sex-offender classifications as they existed prior to the implementation of the AWA, to be equally applicable here.
{¶ 13} Accordingly, we sustain appellant's first assignment of error and, in accordance with Bodyke, find that appellant's reclassification made under the severed statutes must be vacated and his prior sex-offender classification reinstated. Disposition of appellant's first assignment of error renders his remaining assignments of error moot.
{¶ 14} For the foregoing reasons, appellant's first assignment of error is sustained, and his remaining assignments of error are moot. The judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law and consistent with this decision.
Judgment reversed and cause remanded.
FRENCH and CONNOR, JJ., concur.
Ct. 237, 243-244 (2000). The judge's findings of fact will be left undisturbed unless clearly erroneous.
Custody of Eleanor, 414 Mass. 795, 799 (1993). Absent clear error, we review the judge's determination of the child's best interests only for abuse of discretion.
Mason v. Coleman, 447 Mass. 177, 184 (2006).
The judge's duty in parenting disputes is to craft a system of parenting that, taken as a whole, furthers the welfare of the child. Here, the judge concluded essentially that the child's best interests were promoted by contact with his father. That conclusion was supported by the judge's findings. The judge found that the child was deprived of adequate opportunities to bond with the father and that this deprivation was aggravated both by the child's relocation to New York and by the mother's refusal to permit unsupervised visitation. The judge found also that the father sought actively to have a significant role in his child's life, and that such a relationship would be beneficial to the child. Those findings were plainly permissible on this record.
Having concluded that the father and child needed "adequate alone time," the judge was faced with the question how to achieve that goal where the parties lived over 400 miles apart. The judge's solution was to order the child returned to Massachusetts while retaining sole physical custody in the mother, and to award the father joint legal custody and frequent visitation. However sensible that parenting arrangement might be in the abstract, it exceeded the judge's statutory authority. Although probate judges have broad equitable powers to act in the best interests of children under their jurisdiction, E.N.O. v. L.M.M., 429 Mass. 824, 827-828 (1999), those powers are not unlimited. In the circumstances of this case, the judge lacked authority to order the child returned to Massachusetts without altering physical custody. Moreover, the judge's award of joint legal custody was unsupported by her findings and thus was not permitted by the statute.
Of course, had the judge awarded sole physical custody to the father, the judge could have ordered the child returned to the Commonwealth so that the father could assume custody. See, e.g., Prenaveau v. Prenaveau, 75 Mass. App. Ct. 131, 144 (2009) (reinstating order granting sole physical custody to mother in Massachusetts, and ordering children residing with father in New Hampshire at that time to be returned to Massachusetts).
a. Order to return to Massachusetts. The judge, as noted, concluded that the mother was required to obtain the consent of the father or the court before relocating with the child to New York. As a result, the judge employed a Yannas analysis to determine whether living in New York was in the child's best interests, concluded that it was not, and ordered the child returned to Massachusetts. Because the judge also ordered the mother to retain sole physical custody, the mother effectively was ordered to return to Massachusetts as well. In the circumstances of this case, the mother was not required to obtain permission to relocate when she did, and consequently the judge's approach was erroneous.
In past cases evaluating a parent's relocation outside Massachusetts with a child, the child had two legal parents between whom custodial rights had been allocated at the time of relocation. See, e.g., Mason v. Coleman, supra at 183 (father with joint legal and physical custody refused to allow ex-wife to relocate with children to New Hampshire); Wakefield v. Hegarty, supra at 773, 775 (adjudicated father with joint legal custody of non-marital child refused to allow mother to relocate with child to Virgin Islands). Because the child in question had two legal parents, permission to relocate was required in order to protect the rights of the other parent to develop a relationship with the child. See Wakefield v. Hegarty, supra at 775. When a parent violated that requirement by relocating without the necessary consent, a judge properly could order the parent to return to the Commonwealth with the child. See Cartledge v. Evans, 67 Mass. App. Ct. 577, 578 (2006) (removal request denied, and mother who relocated with child to Connecticut while removal request was pending before court was ordered to return to Massachusetts with child).
Permission to relocate, however, is not required when a child has only one legal parent. Such is the case for a nonmarital child prior to any proceedings to determine paternity or allocate custodial rights. When the paternity of a nonmarital child has not yet been established pursuant to G.L. c. 209C, § 2, the mother is the child's only parent. The putative biological father has no legal rights that need to be protected by the court, and the mother may relocate freely with the child. The court cannot reverse the parent's lawful relocation or require the legal parent to meet the standards of a Yannas analysis by demonstrating a "real advantage" resulting from the move.
Here, the child had only one legal parent when the mother relocated to New York on March 1, 2008. Because the father's paternity had not been adjudicated or voluntarily acknowledged, he had no legal rights vis-a´-vis the child. The mother was free to move with the child wherever she wished. She was not required to seek permission to relocate, nor was it appropriate to apply the first step of a Yannas analysis and require her to demonstrate that the relocation conferred a "real advantage." Because the mother had relocated lawfully with the child, the mother could not be ordered subsequently to return to Massachusetts.
The judge's analysis in this case was marred from the start by her faulty assumption that the mother was obligated to seek consent of the father or the court to relocate to New York with the child. In awarding custody, the judge had to take as a given the residences of both parents at the time she rendered her decision. The judge had only three permissible options: she could award sole custody to the mother and have the child reside in New York, award sole custody to the father and have the child reside in Massachusetts, or award joint custody and have the child reside part of the time at each of the parents' residences. Taking into account opportunities for visitation and the limitations enumerated in G.L. c. 209C, § 10 (a), the judge had to select the one custody arrangement of those three that was in the child's best interests. Although the judge's "fourth option" might have been ideal for the child, it exceeded her authority.
See notes 9 and 10, supra.
The judge's erroneous analysis requires that we vacate the order to return the child to Massachusetts. The orders regarding custody and visitation were entwined inextricably with the erroneous order to return to Massachusetts and must be vacated as well. The judge's Yannas analysis was not the appropriate framework in which to evaluate the best interests of the child, and it is not clear that, had she not employed that approach, she would have developed the same plan regarding "parenting time" and custody. While a remand is therefore required, we briefly address the mother's other objections to the judge's orders.
b. Visitation schedule. As stated, the judge ordered a gradually increasing schedule of "parenting time" for the father, including holidays and, over time, overnights and weekends. When one parent has sole physical custody of a child, the other parent is ordinarily entitled to reasonable visitation. See C.P. Kindregan, Jr. M.L. Inker, Family Law and Practice § 48:1, at 496-497 (3d ed. 2002). That presumption applies equally to parents of nonmarital children. See Normand v. Barkei, 385 Mass. 851, 851-852 (1982). It arises from the general principle that having contact with both parents benefits a child. See Felton v. Felton, 383 Mass. 232, 234 (1981). See also Pizzino v. Miller, 67 Mass. App. Ct. 865, 871 (2006) (noncustodial parent "has an independent interest in continued, meaningful involvement with the upbringing of his or her child").
The mother claims the judge erred in awarding the father "extensive and lengthy visitation that quickly accelerated to overnights and weekends." The mother notes that the judge did not address certain issues raised at trial, namely that the child continued to breast feed and nursed frequently, ate an exclusively vegetarian diet, wore cloth diapers, slept with the mother, and had never been away from the mother for more than three hours. She objects also that the judgment does not require that the mother supervise any of the father's "parenting time." She argues that, given the manner in which her child has been raised, the judge's visitation schedule will "destroy" the child's prior living arrangements and is contrary to the child's best interests.
There was no error in the judge's decision to award visitation to the father. Maintaining preexisting living arrangements is preferred only when that arrangement is meeting a child's needs. See Custody of Kali, 439 Mass. 834, 843-844 (2003). The judge was warranted in concluding that the existing arrangement, in which no substantial father-child relationship was possible, did not meet those needs. A gradually increasing schedule of visitation was a reasonable approach to ensure bonding without disrupting abruptly the child's life.
The mother's specific objections are without merit. While the judgment does not provide for the mother to be present during visitation, the judge found that the mother's past supervision had impeded father-child bonding. It was within the judge's discretion to permit the father to spend time unsupervised with his child. We discern no error in the judge's failure to discuss the mother's particular approach to child-rearing. The judge is not required to address every issue raised by the parties at trial, and a lack of explicit findings does not mean the issue was not considered. Furthermore, the judge could conclude reasonably that any disruptions from visitation were outweighed by the benefits to the child of developing a relationship with the father.
Although we conclude that visitation was properly awarded to the father, the schedule ordered by the judge was premised on the erroneous order to return the child to Massachusetts and on the circumstances that existed between the parties at the time of the order nearly two years ago. On remand, the judge is to reconsider the question of visitation as set forth in part 4, infra.
c. Failure to award back child support. Pursuant to a voluntary agreement, the father paid child support until trial began in July, 2008, but did not pay support thereafter until the judgment in December, 2008. The judgment awarded the mother prospective child support, but did not require the father to pay any past child support. According to G.L. c. 209C, § 9 (a), if the judge finds a parent chargeable with support, the judge, "[u]pon the petition of a party," shall also order past support, taking into account any past support provided by that parent. The mother argues that the judge was obligated to award retroactive child support for the period between July, 2008, and December, 2008. That argument should have been presented to the judge. See Bercume v. Bercume, 428 Mass. 635, 642 (1999). According to the record, the mother did not request that the judge award child support and the evidence would not have alerted the judge that she was entitled to any past child support. During trial, the mother filed no petition or motion for past child support, and she did not move for reconsideration or modification of the child support order after the judgment. The judge's support order was permissible in the circumstances. We also see no reason to vacate the support order, as it was not premised on the erroneous order to return to Massachusetts.
The parties do not dispute that in July, 2008, the father paid the mother all child support owing due to their voluntary agreement, and that he continued to set aside the same amounts during trial but did not pay these latter amounts to the mother.
General Laws c. 209C, § 9 (a), states in relevant part:
"If the court finds that a parent is chargeable with the support of a child, the court shall make an order . . . requiring a parent to pay weekly or at other fixed periods a sum for and toward the current support and maintenance of such child. . . . Upon the petition of a party, the court shall also order past support for the period from the birth of the child to the entry of the order, taking into consideration the parent's ability to pay under subsection (c) and any support provided by the parent during such period. . . . "
d. Joint custody award. As earlier mentioned, the judge ordered that the parties have joint legal custody. Pursuant to G.L. c. 209C, § 10 (a), a court may award joint custody, whether legal or physical, only if the parties have made an agreement approved by the court to share custody, or if "the court finds that the parents have successfully exercised joint responsibility for the child . . . and have the ability to communicate and plan with each other." The statute recognizes that involving both parents in decision making is in the child's best interests "only if the parties demonstrate an ability and desire to cooperate amicably." Mason v. Coleman, 447 Mass. 177, 182 (2006). Joint custody is inappropriate for parents whose relationship to date has been "dysfunctional, virtually nonexistent, and one of continuous conflict." Carr v. Carr, 44 Mass. App. Ct. 924, 925 (1998). See Custody of Kali, supra at 837 n. 5; Custody of Zia, 50 Mass. App. Ct. 237, 244 n. 10 (2000).
See note 9, supra.
In awarding joint custody absent an approved custody agreement between the parties, to comply with G.L. c. 209C, § 10 (a), the judge's findings must support the conclusion that the parties can cooperate in making decisions for the child and have done so in the past. Custody of Odette, 61 Mass. App. Ct. 904, 905 (2004). The judge is not, of course, required to parrot the statutory language. An explicit written finding, while preferable, may be unnecessary when the record indicates an entirely amicable relationship and readily "supports an inference that the requisite findings are implicit in the judge's order." K.J.M. v. M.C., 35 Mass. App. Ct. 456, 458 (1993). However, when the record reflects a hostile and tumultuous relationship between the parties, positive findings are required that support an inference that joint decision-making authority is appropriate for the future. Custody of Odette, supra.
We do not, however, construe G.L. c. 209C, § 10 (a), in such a way that a parent who renders cooperation impossible will be rewarded invariably with sole custody. If a judge finds that an irresponsible, hostile parent has stymied deliberately any attempts by the other parent to participate in the child's life, such a finding may support an award of sole custody to the other parent, where that custodial arrangement will not be detrimental to the child. See Hernandez v. Branciforte, 55 Mass. App. Ct. 212, 220-221 (2002) (mother's unilateral removal of child to Italy was part of reason for giving sole custody to father, because removal reflected "abject breakdown in communication . . . ascrib[ed] to the mother's defiance" and mother's "failure to place the welfare of her son above her own"). See also In re Paternity of C.T.E.-H., 323 Mont. 498, 502-505 (2004) (awarding primary residential custody to father when mother had "exclud[ed him] from the child").
The mother argues that the award of joint legal custody was improper in this case because the judge failed to make a "positive finding" that the parents can exercise joint responsibility. Custody of Odette, supra. We agree that the judge's order was insufficiently supported by her findings. Rather than suggesting that the parties would be able to exercise joint responsibility for the child's welfare, the findings suggest the contrary. The judge found that the mother and father have clashed over child-rearing since before the child's birth. In addition to long-standing disagreements about the father's role in the child's life, the parties have been unable to agree upon or comply with a regular visitation schedule. The judge concluded that the mother moved to New York with the purpose of separating the child from the father, and that she would "actively interfere" with any extended visitation ordered by the court. Aside from the voluntary child support arrangement that existed prior to trial, there is no evidence of cooperation between the parties. In light of the history of hostility between the parties, the judge could not award joint legal custody without an explicit, and supportable, finding that the parties had cooperated in the past and would be able to do so in the future.
4. Proceedings on remand. In light of the erroneous analyses and orders in this case, we must remand the entire matter to the judge for reconsideration. We recognize, of course, that the present circumstances of the parties and the child are substantially different from when the judge first made her decision. Unfortunately, the order to return the child to the Commonwealth produced an anomalous situation: although the mother and child now reside in Massachusetts, they returned here only under the threat of contempt pursuant to an unlawful order. In further proceedings in this case, the judge must attempt to remedy, to the extent possible, the wrong done to the mother, while still maintaining the child's best interests as the paramount concern.
Presently, the child has two legal parents and all the parties reside in Massachusetts. If this were a typical case, the relocation approach detailed in part 2, supra, would apply: any relocation by the mother to another State would require either the father's consent or permission from a court utilizing a Yannas analysis. That approach creates deliberate barriers to relocation in order to protect the child's existing living arrangements. In the aberrant circumstances of this case, however, it is unfair to impose such barriers upon the mother. Had there been no improper court order, the mother and child would have been free to remain in New York. The mother's compliance with that order should not be used to her detriment should she wish to return there. Instead, she should be afforded the freedom to choose where she will live that was denied to her previously.
Accordingly, a special exception to the usual procedure is warranted in this case. At the outset of proceedings on remand, the mother must inform the judge whether she wishes to live in Massachusetts or New York or elsewhere, and the judge must accept that choice. The judge must treat the mother's chosen residence as a given, and fashion a new plan for custody and visitation accordingly. We reiterate that this exception to what would ordinarily be an analysis directed to the best interests of the child obviously comes about by virtue of the unusual circumstances of this case.
In all other respects, the judge's analysis on remand should be a typical one and must give due regard to the interests of both parents, no matter where, or with whom, the child lives. If the parties have complied with the judge's visitation requirements, and if the father has in fact interacted positively with the child, the best interests of the child may now favor an entirely different custody and visitation arrangement. We leave those considerations to the judge's discretion in light of the proper legal standards.
5. Conclusion. The order to return the child to Massachusetts, the award of parenting time, and the award of joint legal custody are vacated, and the case is remanded to the Probate and Family Court for further proceedings consistent with this opinion. The remainder of the judgment is affirmed.
So ordered.
MARSHALL, C.J. (concurring, with whom Spina, J., joins).
On or about March 1, 2008, Danielle McDonald, the sole legal parent of her five month old son, moved from Massachusetts to upstate New York, to be closer to her mother and stepfather in a community she felt would be more affordable. Approximately nine months later, after the mother had found housing and part-time employment in her new domicil, a judge in the Probate and Family Court ordered the child returned to Massachusetts on a judgment establishing Stephen Smith's paternity. There was no question that the mother, who retained sole physical custody of the child, was a fit, indeed a good, parent. There was no question that the father had had minimal contact with the child since February, 2008.
This appeal arises, as the court rightly concludes, because the judge impermissibly ruled, for reasons that were irrelevant under the paternity statute, G.L. c. 209C, that the mother needed the court's or the putative father's permission before she could relocate with the child to New York. See ante at 550. As a result of the judge's disregard of the paternity statute, what should have been a routine custody and visitation matter under G.L. c. 209C, § 10, became a prolonged, expensive, and stressful legal ordeal for the parties and significantly disrupted the child's stability. I concur in today's decision vacating the judgment, but write separately to clarify the analytical underpinnings of the court's holding.
This matter begins and ends with statutory interpretation. The paternity statute, which governs here, furthers the Legislature's expressed intent that nonmarital children be "entitled to the same rights and protections of the law as all other children," G.L. c. 209C, § 1, while simultaneously recognizing that, as a matter of law, married and unmarried parents are not similarly situated. Among other things, the statute makes unmistakably clear that the mother is the sole legal parent of a nonmarital child from the moment of the child's birth until the establishment of the putative father as a legal parent, which in this case did not occur until the child was ten months old. See G.L. c. 209C, § 10 (b) ("Prior to or in the absence of an adjudication or voluntary acknowledgment of paternity, the mother shall have custody of a child born out of wedlock" [emphasis added]). The statute places on a putative father who wishes to exercise parental rights the obligation to take affirmative steps to establish paternity. G.L. c. 209C, § 2. This obligation pertains regardless of whether the mother has told a man that he "is" the father of the child, has accepted money from him as "child support," or has in any other manner represented to the man that he is the father.
The paternity statute further provides that "the mother shall continue to have custody after an adjudication of paternity or voluntary acknowledgment of parentage" (emphasis added) unless and until a court orders otherwise. G.L. c. 209C, § 10 (b).
Here, the critical and determining fact before the judge, and before us, in applying the provisions of the paternity statute is that the mother, an unquestionably fit parent, moved to New York with the child at a time when, as the child's only legal parent, she was free to do so without the court's or the putative father's permission, even if the move disrupted arrangements she had previously made for visitation between the child and the putative father. At the time she relocated with the child, neither the putative father nor the Commonwealth had any legal authority to interfere with or review the mother's decision. These facts should have been enough to put an end to the father's legal quest to force the mother to return with the child to Massachusetts. Once it was established that the mother had relocated prior to an adjudication of paternity, the judge had no grounds to examine the reasons for or sincerity of the mother's move. After paternity was established, the judge was obligated to take as a given that the mother and the child resided 400 miles apart from, and in another State than, the father, and to fashion custody and visitation orders pursuant to the three factors set out in G.L. c. 209C, § 10 (a), again respecting and not disturbing the mother's decision to relocate. See Custody of Kali, 439 Mass. 834, 843 (2003) ("If the parenting arrangement in which a child has lived is satisfactory and is reasonably capable of preservation, it is ordinarily in the child's best interests to maintain that arrangement, and contrary to the child's best interest to disrupt it. Stability is itself of enormous benefit to a child, and any unnecessary tampering with the status quo simply increases the risk of harm to the child"). Seen in light of the mother's legitimate New York residence and the provisions of G.L. c. 209C, § 10 (a), the distance separating the parties had relevance only as a factor in devising a reasonable long-distance visitation order, a type of order with which our Probate and Family Court judges are familiar and competent to fashion.
The judge, however, as the court details, failed to follow the statutory scheme. See ante at 550. She made impermissible findings concerning the mother's reasons for moving to another State with the child; she made irrelevant findings about the mother's choices in caring for the child; and she made findings about the importance of the child bonding with the father that privileged a need to bond over the child's need for stability. See id. at 542-543. The judge then analyzed these impermissible and irrelevant findings under the "real advantage" test set out in Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985) (Yannas) to conclude that the mother "failed to articulate a sincere, good reason for relocation." Id. at 543. The Yannas factors apply to prevent one legal parent from unilaterally relocating with a child to another jurisdiction, thereby affecting the parental rights of the other legal parent. That analysis is triggered only where the rights of two legal parents have been established prior to removal or attempted removal of the child from Massachusetts. See, e.g., Wakefield v. Hegarty, 67 Mass. App. Ct. 772, 775-776 (2006) (applying Yannas test where paternity of unmarried father had previously been established and mother had not yet relocated). In such circumstances, not present in this case, maintaining the status quo strikes an appropriate balance among the interests of all family members involved. See Yannas, supra at 712 (in considering request under G.L. c. 208, § 30, to move child to another jurisdiction, "[e]very person, parent and child, has an interest to be considered"). This is not a removal case, and Yannas is inapposite. Neither the judge nor the parties has cited to a single case, from any jurisdiction (and I am not aware of any from my own investigation), that gives a judge authority to pull a parent and child unwillingly back to a State where the parent had a prior and unilateral right to leave.
Among other things, the judge concluded that the mother "has failed to demonstrate why permitting her leave to remain in New York would be in her best interest. . . . Defendant testified that ordering her to move back to Massachusetts would inflict a significant financial burden on her. While the Court recognizes Defendant may be affected by being ordered to move back to Massachusetts, the problem is one of her own creation. Defendant cavalierly made the decision to move to New York without taking into account the rights of the Plaintiff or Child in having a relationship with one another. . . ."
The judge found that the mother's "move to New York was clearly to deprive the [father] of developing a relationship with Child. . . ." She further found that the mother "has produced no evidence which would show that the move to New York would be advantageous to Child's quality of life. . . ."
The judge credited the testimony of the father's expert that "[w]here parents live apart, for proper bonding to occur, it is optimal for the non-custodial parent to have frequent and regular contact with the child. . . . that there has been insufficient frequency and duration of contact between [the father] and Child for bonding to have occurred since the time of birth . . . [and that] the frequency and duration of [the father's] contact with Child remains inadequate with Child living approximately 400 miles away." The judge also found that health insurance for the child would be less expensive in Massachusetts than in New York.
The court concludes, and I concur, that the judge had no authority to issue an order during the pendency of litigation for the child (and hence the mother) to move back to Massachusetts. See ante at 550. As the court acknowledges, a person having sole parental rights is "free to move with the child wherever she wishe[s]." Id. at 549-550. As a matter of law, it should make no difference to a parent's freedom to relocate that another party subsequently files to establish parental rights. See G.L. c. 209C, § 10 (a), (b). There is no statutory basis or reason in fairness for the mother to remain in Massachusetts on the filing of a complaint for paternity, which may be filed for any number of extraneous reasons and may be denied. See Paternity of Cheryl, 434 Mass. 23, 32 (2001) ("A man may acknowledge paternity for a variety of reasons, and we cannot assume that biology is the sole impetus in every case"). The paternity of a nonmarital child is not certain and is not infrequently in dispute. In contrast, the motherhood of a nonmarital child is established at birth. We may presume that the Legislature took these elementary facts into account in crafting a statutory scheme that gives primacy to the stability of a nonmarital child by vesting sole legal parentage in the mother unless and until there has issued a legal determination of paternity or a voluntary acknowledgment of paternity. The Legislature's policy choices may mean that a responsible and well-meaning litigant like the plaintiff in this case is disadvantaged where he elects not to establish paternity upon or soon after the birth of the child. Our role, however, is to faithfully construe the statute.
I concur that the judgment must be vacated and the case remanded to the Probate and Family Court for further proceedings as to custody and visitation in light of the "special exception" set out by the court. Ante at 555.