S.H. v. H.A.O.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-603

S.H.

vs.

H.A.O.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

S.H. (mother) appeals from a judgment of modification

permitting H.A.O. (father) to remove the parties' only child

from Massachusetts to Texas and denying her request for primary

custody. Discerning no abuse of discretion or error of law in

the Probate and Family Court judge's careful consideration of

the parties' circumstances, or in her ultimate conclusions, we

affirm.

Background. After a consolidated trial on the parties'

complaints for modification and the mother's complaint for

contempt, the judge found the following facts.

The parties were married in 2011 in Boston and divorced in

2015. The mother was initially granted sole physical and legal
custody of the child, born in 2012, subject to the father's

parenting time. Six months later, the father was granted

"extended parenting time" and temporary legal custody, limited

to authority in dealing with the child's medical care.

In 2018, a judgment of modification transferred sole

physical and legal custody of the child to the father. The

mother was guaranteed the right to receive information about the

child's medical care, education, and extracurricular activities,

as well as to attend the child's school, camp, and

extracurricular events. She was granted parenting time on

alternating weekends and alternating Tuesday afternoons.

Parenting exchanges were to take place at the child's school or

summer camp, or barring those options, at the local police

station.

The father filed a complaint for modification in September

2020, seeking permission to remove the child to Texas, alleging

that he had better employment opportunities in Texas, that the

child's educational situation had become unsatisfactory due to

the permanent closure of the school he was attending, that the

mother had misused her access to the child's records, and that

the mother's financial situation had improved.1

1 The father filed a motion for temporary removal in
December 2020, asserting that he had a job offer in the Houston
area. The motion was denied.

2
In 2021, the mother filed a complaint for modification

requesting the court award her sole physical and legal custody,

alleging that the father sought to remove the child to Texas and

engaged in other conduct harmful to the child. The mother also

accused the father of seeking to alienate the child from her.

In 2024, the mother filed a complaint for contempt alleging that

the father had violated the terms of the 2018 judgment,

including by failing to disclose information about the child's

medical care and extracurricular activities, refusing to allow

the child to attend school events, and denying the mother her

guaranteed parenting time.2

The parties have not limited their dispute to this matter,

but have also put the child's teachers and health providers in

the middle of their conflict. At least seven times, the mother

sought the assistance of the local police department in

facilitating parenting exchanges. Both the mother and the

father have filed reports with the Department of Children and

Families (DCF), triggering investigations into alleged abuse and

neglect of the child, and have sought or obtained abuse

prevention orders against each other under G. L. c. 209A.

2 The judge found the father in contempt on only one issue -
- failing to provide the mother with the name and contact
information for the child's new therapist. Neither party
appealed from the contempt judgment.

3
The judge found that the animosity between the parties had

not cooled and that neither parent was truly willing to foster

and support the child's relationship with the other.

Considering this difficult dynamic, the judge determined that it

would be in the child's best interests to remain with the

father, that the father demonstrated he would gain a "real

advantage" by moving to Texas, and that the move would be in the

child's best interests. Accordingly, judgment issued continuing

the father's sole physical and legal custody, permitting removal

of the child to Texas, and instituting a new parenting schedule,

with the mother responsible for all expenses associated with her

travel to Texas for parenting time. The mother appeals.

Discussion. In custody and removal matters, "[w]e review

the judgment and the subsidiary findings of fact for abuse of

discretion or other error of law." Murray v. Super, 87 Mass.

App. Ct. 146, 148 (2015). "[A] judge's discretionary decision

constitutes an abuse of discretion where we conclude the judge

made 'a clear error of judgment in weighing' the factors

relevant to the decision, such that the decision falls outside

the range of reasonable alternatives." Hoegen v. Hoegen, 89

Mass. App. Ct. 6, 9 (2016), quoting L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014). In conducting our review, we accept

the judge's findings of fact "unless clearly erroneous."

Murray, supra. "Although we will not substitute our judgment

4
for that of the probate judge, we will 'scrutinize without

deference the propriety of the legal criteria employed by the

trial judge and the manner in which those criteria were applied

to the facts.'" Whelan v. Whelan, 74 Mass. App. Ct. 616, 620

(2009), quoting Kelley v. Kelley, 64 Mass. App. Ct. 733, 739

(2005).

1. Removal of the child. "A parent, against the objection

of the other parent, may remove a minor child from the

Commonwealth 'upon cause shown.'" Rosenwasser v. Rosenwasser,

89 Mass. App. Ct. 577, 580 (2016), quoting G. L. c. 208, § 30.

"The words 'upon cause shown' mean only that removal must be in

the best interests of the child" (citation omitted). Yannas v.

Frondistou-Yannas, 395 Mass. 704, 711 (1985). To make this

determination, the judge must undertake a two-part inquiry. See

Murray, 87 Mass. App. Ct. at 149, citing Yannas, supra at 710-

712. "In this process, the first consideration is whether there

is a good reason for the move, a 'real advantage.'" Yannas,

supra at 711. "Second, if the real advantage test is satisfied,

the judge must consider whether the move is in the best

interests of the children." Murray, supra. The mother argues

that the trial judge erred in finding (a) that the father had a

sincere motive to remove the child from Massachusetts to Texas

and (b) that relocation was in the child's best interests.

5
a. Real advantage to the father. To satisfy the real

advantage test, the custodial parent must demonstrate "a good,

sincere reason for wanting to remove to another jurisdiction."

Yannas, 395 Mass. at 711. "At this stage the judge must

consider 'the soundness of the reason for moving, and the

presence or absence of a motive to deprive the noncustodial

parent of reasonable visitation.'" Miller v. Miller, 478 Mass.

642, 650 (2018), quoting Yannas, supra.

The record amply supports the judge's determination that

relocation to Texas presented a "real advantage" for the father.

The judge credited the father's testimony that in Texas he and

the child could live in a larger home closer to the father's

family, and that the father would enjoy higher-paying job

prospects in his area of expertise. Although the father had not

yet secured employment in Texas at the time of the trial, the

judge found that the father had to turn down two offers for good

paying, full-time jobs in his area of expertise in 2020 and

2021, and that he had a good reason to cease his Texas job

search until he was in a position to accept an offer. She could

reasonably infer, as she did, that similar jobs would be

available after he moved. See Williams v. Pitney, 409 Mass.

449, 456 (1991) (relocation to California would result in real

advantage to mother where she testified to ability to secure

better employment there). "Relocating in order to . . . develop

6
emotional support is a sincere reason, as is the opportunity to

improve one's financial circumstances" (quotation and citation

omitted). Rosenwasser, 89 Mass. App. Ct. at 581-582.

The mother argues that the judge overlooked critical

evidence and erred as a matter of law in determining that the

father had a "sincere motive" to relocate to Texas, emphasizing

the judge's seemingly contradictory findings that the father

might use relocation to Texas to interfere with the mother's

parenting time. To the contrary, the judge's thorough findings

demonstrate extensive consideration of the evidence on both

sides, including the father's obstruction of the mother's

parenting time, his interactions with school personnel and

police, and his refusal to comply with court orders. The judge

recognized that some of her findings reflected the father's

inability or unwillingness to foster the child's relationship

with the mother, but specifically found that "despite the

acrimony between the parties," the father's relocation plan "is

not proposed to deprive Mother of contact with [the child]."

"The trial judge was in the best position to assess the

credibility of the witnesses' testimony and determine the weight

afforded it." Adoption of Frederick, 405 Mass. 1, 10 (1989).

We discern no error of law or abuse of discretion in the judge's

conclusion that relocation would provide a real advantage to the

father.

7
b. Best interests of the child. Likewise, we see no

reason to disturb the judge's determination that relocation

would be in the child's best interests. As the judge correctly

stated, factors relevant to this inquiry include

"(1) whether the quality of the children's lives 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[ren]'s association with the
noncustodial parent; (3) the extent to which moving or not
moving will affect the [children'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" (quotations and citation
omitted).
Murray, 87 Mass. App. Ct. at 150. No factor is controlling --

"they must be considered collectively." Yannas, 395 Mass. at

712.

The judge properly examined the effect of relocation on the

child's quality of life, finding that benefits to the father,

including an increase in household income and proximity to

paternal family members with whom the child has already

established relationships, would flow to the child.3 See Miller,

It is true, as the mother points out, that the judge did
3

not make findings regarding the impact of relocation on the
child's relationships with the mother's extended family in
Massachusetts, including his maternal aunts, except to note that
the mother shared an apartment with two of her sisters.
However, the mother introduced very little evidence as to the
extent and significance of these relationships, and the
credibility of her testimony that the child's aunts were "like
second parents" to him was impeached by her deposition testimony
that she could not recall one sister's address or the town where
she lived.

8
478 Mass. at 656 (parent's "well-paying job" and proximity to

"supportive extended family" in new location will indirectly

benefit child). On the other hand, the judge found that the

mother's protective conduct toward the child "inhibits him from

developing independence and socialization appropriate for his

age." The judge reviewed evidence about the child's education

and related conflicts and concluded that relocation would not

disserve the child's needs, and indeed, could improve his

educational and social experiences. The mother contends that

the judge erred in finding that the school the child would

attend in Texas was "suitable," rather than better suited to

serve the child's needs. However, even if the judge had found

that the child's current school was "better" than the proposed

Texas school, it "would 'not compel the conclusion' that" the

new school was "not appropriate to the [child's] needs," which

is the applicable standard. Rosenwasser, 89 Mass. App. Ct. at

585, quoting Abbott v. Virusso, 68 Mass. App. Ct. 326, 333 n.12

(2007).

The mother also argues that the judge failed to consider

the effect of relocation on the child's relationship with her to

the extent required under the Yannas factors. We disagree. The

judge explicitly recognized that removal might impede or

frustrate the mother's exercise of her parenting time with the

child, but on balance determined that the financial and familial

9
benefits of removal, coupled with "the reduced likelihood that

the bitterness between [the] parents will negatively impact his

academic or social life," outweighed the benefits of staying in

Massachusetts.

When one parent seeks removal of a child, "the test is not

whether there is no impact on the [other parent's] association,

but whether reasonable 'alternative visitation arrangements'

might achieve ongoing and meaningful contact appropriate to the

circumstances." Rosenthal v. Maney, 51 Mass. App. Ct. 257, 271

(2001). The judge explicitly found such an arrangement did

exist, and she outlined a parenting schedule guaranteeing the

mother parenting time with the child in Texas every third

weekend and in Massachusetts for two nonconsecutive weeks every

summer, as well as biweekly private video calls. Neither party

introduced evidence about the cost or time required for her to

exercise parenting time with the child in Texas, so the judge

reasoned -- in part because the mother does not pay child

support -- that it would be equitable to place the

responsibility for these costs on the mother. The judge

properly assessed the effects of the move on the child's

relationship with his mother, as well as the potential for

continued quality contact under a new parenting arrangement.

"The fact that visitation by the noncustodial parent will be

10
changed to his or her disadvantage cannot be controlling."

Yannas, 395 Mass. at 711.

The judge's findings were far from one-sided, as the mother

contends. They are unlike the findings in Rosenwasser, 89 Mass.

App. Ct. at 588, where "the judge abused her discretion by

placing disproportionate emphasis on the effect of the move on

[one parent's] relationship with the child, while failing to

adequately weigh the interests of the [other parent] and the

child." To the contrary, demonstrating that she had

thoughtfully considered both parties' perspectives, the judge

recognized the father's role in creating an unstable environment

for the child and weighed the risk that the father could use

relocation to alienate the child from the mother. The judge

also reviewed third-party reports from DCF and the court-

appointed guardian ad litem; she ultimately agreed with the

general conclusions contained in these reports, but declined to

credit many of the reports' findings and recommendations. The

credibility of witnesses, including court-appointed

investigators, is a matter within the discretion of the judge.

See Pizzino v. Miller, 67 Mass. App. Ct. 865, 876 (2006) ("It

was for the judge to decide whether to credit the guardian's

report and testimony"). "[W]here the judge rejects that

recommendation, the judge should explain his or her reason for

doing so." Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 571-572

11
(2023). Here, the judge properly explained that the reports

were inconsistent, stale, and incomplete. The judge was

therefore entitled to integrate some portions of these reports,

but not others, into her findings and conclusions. This

piecemeal approach does not suggest internal inconsistency or

error, as the mother argues, but rather, rigorous and attentive

reflection on the entirety of the evidence introduced at trial.

The judge considered each parent's interests, but properly did

not give these interests controlling weight. See Yannas, 395

Mass. at 711 ("The effect on the child of any removal is most

important").

We are satisfied with the judge's consideration of the

Yannas factors. Because the weight assigned to each of these

factors is a matter squarely within the judge's discretion, see

Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 452 (2006)

("balancing of the relevant factors in determining the child's

best interests . . . involve[s] classic discretionary decision

making by the trial judge"), and because the judge's decision

was within "the range of reasonable alternatives," Hoegen, 89

Mass. App. Ct. at 9, quoting L.L., 470 Mass. at 185 n.27, the

judge did not abuse her discretion in concluding that removal

would serve the child's best interests.

2. Custody of the child. The mother also argues that it

is in the child's best interests for custody to be restored to

12
her and that the judge erred in maintaining sole physical and

legal custody with the father. "Awards of custody are made upon

a determination of the best interests of the child." Houston v.

Houston, 64 Mass. App. Ct. 529, 535 (2005). In determining

where a child's best interests lie, a judge has broad discretion

to consider a range of factors, including expert reports and

testimony, and other evidence regarding each parent's fitness

and relationship with the child. See Ardizoni v. Raymond, 40

Mass. App. Ct. 734, 738 (1996). Ultimately, "[t]he decision of

which parent will promote a child's best interests 'is a subject

peculiarly within the discretion of the judge.'" Bak v. Bak, 24

Mass. App. Ct. 608, 616 (1987), quoting Jenkins v. Jenkins, 304

Mass. 248, 250 (1939).

For the same reasons we are satisfied with the judge's

analysis of the child's best interests in determining the

appropriateness of removal, we discern no error or abuse of

discretion in her decision to maintain the current custody

arrangement. It is true, as the mother points out, that the

judge admitted the father is apparently "unable or unwilling to

foster [the child's] relationship" with his mother, as would be

in the child's best interests. However, the judge made the same

finding about the mother. Where each parent is equally "capable

of and committed to caring for" a shared child, the judge is

entitled to balance "all of the circumstances . . . to structure

13
a permanent custodial award to serve the best interests of [the

child], including" -- to the extent possible -- the child's

"continued and substantial involvement with both parents."

Custody of Kali, 439 Mass. 834, 848 (2003). Considering both

parents' refusal to set aside their animosity toward each other,

even for their child's sake, "we cannot say that the judge's

resolution of the merits as they stood at the time of trial was

an abuse of discretion." Id.

Judgment affirmed.

By the Court (Meade,
Massing & Brennan, JJ.4),

Clerk

Entered: February 18, 2026.

4 The panelists are listed in order of seniority.

14