Natalie Shkolnikov v. Daniel Jeffrey Cohen.

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

24-P-1443

NATALIE SHKOLNIKOV1

vs.

DANIEL JEFFREY COHEN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (mother) appeals from a Probate and Family

Court judgment on the mother's complaint for modification

entered after trial, denying her request to permanently remove

the parties' minor child to the State of Alaska. The mother

contends that the judge abused her discretion in applying the

removal analysis under the Yannas-Mason framework by not equally

weighing each relevant factor in determining whether removal was

in the best interests of the child. See Yannas v. Frondistou-

Yannas, 395 Mass. 704, 711-712 (1985). See also Mason v.

1As is our custom, we use the names appearing on the
complaint to establish support, notwithstanding that the mother
subsequently changed her surname. We note that the Department
of Revenue filed that complaint on behalf of the mother but is
not a party to this appeal.
Coleman, 447 Mass. 177, 184-186 (2006). Further, the mother

argues that the Yannas-Mason binary framework should be replaced

by a "pure best interest of the child standard." We affirm.

Background.2 The parties were never married. They were in

a relationship for less than three years before separating. The

parties were not in a relationship at the time of the child's

birth.

In March 2016, pursuant to a stipulation of the parties, a

Probate and Family Court judge entered a judgment which provided

in relevant part that the parties would have joint legal custody

of their child and the mother would have primary physical

custody, subject to the parenting time of the defendant

(father). On May 11, 2021, a judgment of modification entered,

setting the parenting schedule in effect at the time of trial;

it provided, in pertinent part, the father parenting time every

Wednesday from 6:00 P.M. to 7:30 P.M. and alternating weekends

from Friday at 6:30 P.M. to Sunday at 6:00 P.M. In addition,

the schedule established that the parties would alternate

parenting time on holidays and school vacations, and provided

for each party to have two nonconsecutive weeks of parenting

2 We draw the facts from the judge's comprehensive relevant
procedural history, findings of fact, rationale and further
findings, and conclusions of law. We note that the judge
incorporated the parties' stipulation of uncontested facts into
her findings.

2
time during the child's summer vacation. The parenting schedule

permitted both parties to attend the child's extracurricular

activities regardless of the parenting schedule. The judgment

also required the father to pay the mother $215 per week in

child support, and that the parties alternate the years each can

claim the child on Federal and State tax returns.

In March 2022, the mother married a member of the United

States Army, who was stationed in the city of Malden.

Subsequently, the mother's husband was reassigned and ordered to

report to Fairbanks, Alaska, in early 2023. As a result, the

mother filed a complaint for modification in October 2022,

asking the judge to allow her to remove the child to Alaska,

establish a new parenting schedule, and allow the mother to

claim the child for tax purposes each year.3 Under the mother's

proposed parenting plan, the father would receive parenting time

(a) in Alaska one weekend per month, (b) for two three-week

periods in Massachusetts in the summer, (c) every Father's Day

and on alternating Thanksgivings, and (d) for equal portions of

each school winter break and the entire week of each school

spring break.

3 The father first learned of the mother's intention to
remove the child to Alaska on being served with the complaint
for modification.

3
In January 2023, the judge appointed a guardian ad litem

(GAL) to make recommendations on the best interests of the child

in relation to the parenting plan and removal.4 In February

2023, the father filed his answer and counterclaim to the

mother's October 2022 complaint for modification, asking the

judge to grant the father primary physical custody of the

parties' child, terminate the father's existing child support

obligation, and order the mother to pay child support to him.

The mother filed an amended complaint for modification in March

2023, that is the subject of this appeal, restating her request

to remove the parties' child to Alaska and asserting that the

child has refused parenting time with the father and feels

unsafe in her father's care. The father then filed an answer

and counterclaim to the mother's amended complaint for

modification in April 2023, which articulated the same requests

included in his February 2023 filing.5 In September 2023, the

judge entered an order permitting Dr. Brian Rachmaciej, a

licensed school psychologist and mental health counselor, to

4 The GAL filed her report in June 2023.

5 The father counterclaimed for primary physical custody of
the child but did not present a case at trial for a change in
primary physical custody. The father's proposed judgment
submitted after trial did not seek such relief. Accordingly,
the judge dismissed the father's counterclaim.

4
observe the child during the father's parenting time. Dr.

Rachmaciej testified as an expert at trial.

After a two-day trial in April 2024, the judge denied the

mother's request to permanently remove the parties' minor child

to Alaska.6 The judge found that the mother demonstrated a real

advantage to removal because she would be able to live with her

husband as a family unit and benefit from the emotional and

financial security that such a living situation would provide.

However, the judge also found that despite the real advantage to

the mother and some of the benefits that would flow from the

mother to the child, removal would not be in the child's best

interests because it would be very detrimental to the

relationship between the child and the father and would separate

the child from her relatives, friends, and extracurricular

activities in Massachusetts.

Discussion. "General Laws c. 208, § 30, governs removal

from the Commonwealth of children of divorced parents where one

parent seeks to relocate without the consent of the other

parent." Miller v. Miller, 478 Mass. 642, 646-647 (2018).

While G. L. c. 208, § 30, is not directly applicable to

nonmarital children, "the legal equality of nonmarital children

6 The judge also revised the parenting schedule to provide
the father parenting time in the summer on alternating weekends
from Wednesday at 6:00 P.M. to Sunday at 6:00 P.M.

5
pursuant to G. L. c. 209C, § 1, dictates the same rule apply for

children in comparable circumstances." Smith v. McDonald, 458

Mass. 540, 546 (2010). Thus, "when a nonmarital child has two

legal parents, the parent with custody may not move the child

outside the Commonwealth without the permission of the other

parent or of a court" (footnote omitted). Id., citing Wakefield

v. Hegarty, 67 Mass. App. Ct. 772, 775 (2006).

Where the parent seeking removal has primary physical

custody of the child, the judge must determine "whether there is

a real advantage to the custodial parent and consider[] . . .

the best interests of the child[] and the interests of both

parents." Murray v. Super, 87 Mass. App. Ct. 146, 146-147

(2015), citing Yannas, 395 Mass. at 710-711. "To satisfy the

real advantage test, the custodial parent must demonstrate 'a

good, sincere reason for wanting to remove to another

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

the . . . absence of a motive to deprive the noncustodial parent

of reasonable visitation.'" Altomare v. Altomare, 77 Mass. App.

Ct. 601, 604 (2010), quoting Yannas, supra at 711. If the real

advantage test is satisfied, then the judge must consider

whether removal is in the best interests of the child. See

Murray, supra at 149. "Where the real advantage to the

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custodial parent is at odds with the best interests of the

child[], the child[]'s interests are paramount." Id. at 147.

We review an order on a request to remove a child from the

Commonwealth for "'abuse of discretion or other error of law,'

accepting the judge's findings unless shown to be clearly

erroneous." E.K. v. S.C., 97 Mass. App. Ct. 403, 411 (2020),

quoting Murray, 87 Mass. App. Ct. at 148.

1. Removal of child to Alaska. The mother contends that

the trial judge abused her discretion in determining that

removal is not in the child's best interests. We discern no

abuse of discretion in the judge's conclusion.

The judge first determined that the mother established a

"real advantage" to removal and, further, that the mother's

"desire to live with her spouse is sincere." The judge also

found that, in Alaska, the mother would be able to live as a

family unit with her husband and children and enjoy the

emotional and financial support that accompany such a living

arrangement.7 In addition, the mother would also benefit from

the reduced financial strain of no longer maintaining two

households.

7 The mother and her husband also share one child, who was
born in 2023.

7
Having found a real advantage to the mother, the judge then

considered whether removal was in the best interests of the

child. "[A] finding that the proposed move presents a real

advantage to the physical custodian does not necessarily mean

that the move is in the best interests of the child[]." Murray,

87 Mass. App. Ct. at 153. The relevant factors in determining

the best interests of the child 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."

Id. at 150, quoting Dickenson v. Cogswell, 66 Mass. App. Ct.

442, 447 (2006). These factors must be considered collectively,

and none are controlling in deciding the best interests of the

child. See Yannas, 395 Mass. at 711-712.

The mother contends that the judge erred by not considering

the benefit of the move to the child, placing greater weight on

the effect of the removal on the father, and disregarding the

hardships that the mother would experience by remaining in

Massachusetts. We disagree. The judge acknowledged that the

move to Alaska would benefit the mother emotionally and socially

and reduce her financial burden, which in turn would positively

8
affect the child. The judge considered the home environment in

which the child would be living in Alaska, including the larger

home size and various community amenities and activities

available. The judge also noted that the mother has been the

child's primary physical custodian since 2016 and is responsible

for most of the child's routine care, including her medical

appointments and her transportation to and from school.

On the other hand, the judge considered that removal would

"be extremely detrimental" to the child because it could

"effectively eliminate[]" the relationship between the child and

the father. The judge found credible the testimony of both the

GAL and Dr. Rachmaciej that the father and the child "are

closely bonded and enjoy their time together," despite the

mother's assertions to the contrary. If moved to Alaska, the

child would lose her weekly in-person time with her father. The

elimination of that regular contact would allow the mother to

"further warp" the child's view of the father, resulting in a

"severing of the positive relationship" between the child and

the father. The judge credited the testimony of Dr. Rachmaciej

that removal to Alaska would negatively impact the relationship

between the child and the father.

The judge also found the parenting schedule proposed by the

mother to be "totally impractical." The mother's argument that

9
the proposed plan increases opportunities for the father to

spend time with the child is undermined by the mother's history

of denying the father his parenting time and the logistical and

financial hardship that traveling between his home in

Massachusetts and the child's proposed home in Alaska would

cause the father.8 The judge emphasized the impracticality of

the mother's proposed parenting plan by noting that the evidence

established that there are no direct flights between Boston and

Fairbanks; travel between the mother's husband's home in Alaska

and the mother's home in Worcester takes nearly twenty-four

hours door to door; and round-trip plane tickets between Boston

and Fairbanks cost $600 to $800 per person.

8 On three separate occasions, Probate and Family Court
judges found the mother in contempt for failing to provide the
father his parenting time under the parenting schedule. In
October 2015, within three weeks after the parties' first
temporary parenting schedule was established by the court, the
father filed a complaint for contempt against the mother,
asserting that the mother had denied him his parenting time. In
December 2015, a judge found the mother in contempt, having
shown a "blatant disregard" for the parties' parenting schedule.
The father also filed a complaint for contempt in October 2016,
though it was dismissed. However, the judgment of dismissal
stated that the mother's behavior "was intended to frustrate the
spirit and intent of the parties' agreement" and the mother was
ordered to pay the father's fees related to the complaint. In
January 2023, a judge found the mother in contempt for denying
the father his parenting time and ordered her to pay the father
$2,000 in attorney's fees. In March 2023, a judge again found
the mother in contempt for denying the father parenting time.

10
In addition, the judge found that the child would be

disadvantaged by the loss of regular contact with her family and

friends as well as separation from her current activities in

Massachusetts, which "would be challenging for a child her age."

The mother's parents reside in Worcester and most of the child's

maternal relatives also live in Massachusetts. The child visits

with her maternal relatives about once a month. Neither the

mother nor her husband has family in Alaska. If removal were

permitted, the judge found that the mother would visit her

relatives in Massachusetts no more than once per year.

In deciding the best interests of the child, the trial

judge had no obligation to believe any particular witness, and

it was up to the judge to decide on the credibility of witnesses

and the weight to be given to their testimony. See Care &

Protection of Three Minors, 392 Mass. 704, 711 (1984); Bak v.

Bak, 24 Mass. App. Ct. 608, 616 (1987). We thus give deference

to the trial judge on issues of witness credibility. See

Custody of Eleanor, 414 Mass. 795, 799 (1993). Specifically, we

defer to the judge's finding that the mother was not credible

when she testified, first, that she would closely cooperate with

the father to keep him up to date and involved in the child's

education; second, that the mother would split the cost of

travel involved in the new parenting schedule; and third, that

11
the mother altered her parenting behavior after reviewing the

GAL report. We also note that the judge found that the GAL

credibly testified to her belief that the mother was not an

accurate reporter of events between the parties, and that the

mother "is intentionally manipulating [the child's] view of

Father." Specifically, the judge found that if removal were

granted, the mother would be able to negatively influence the

child's view of the father without challenge.

The mother is mistaken in claiming that the facts here are

analogous to those in Miller and Wakefield, where removal was

determined to be in the child's best interests. In both cases,

the parent seeking removal had close, supportive family in the

place where they sought to move. See Miller, 478 Mass. at 646;

Wakefield, 67 Mass. App. Ct. at 774. Here, the only family the

mother has in Alaska is her husband, and the child would forgo

not only the at least weekly visitation with her father, but

also the monthly in-person contact she has with her relatives in

Massachusetts. Moreover, the dynamics between the parties in

Miller and Wakefield are notably different than those between

the mother and the father here. In Wakefield, supra at 777, the

judge found that the parent seeking removal made a considerable

effort to foster a substantial relationship between the child

and the other parent, and in Miller, supra at 645, the parent

12
who opposed removal often traveled for work and missed parenting

time that he did not seek to make up. Here, the record and the

judge's findings of fact portray a far different relationship

between the parents. Indeed, the mother has consistently

undermined the father's efforts to build a relationship with his

daughter.

Thus, we conclude that the judge did not err in finding

that the benefit to the mother would not outweigh the negative

impact of removal on the child and the father. Accordingly, we

reject the mother's claim that the judge abused her discretion

in concluding that removal is not in the child's best interests.

2. Yannas-Mason framework. The mother argues that we

should replace the Yannas-Mason framework with a single,

uniform, best interests of the child standard, a change that the

Supreme Judicial Court declined to make in Miller, 478 Mass. at

659 (Gants, C.J., concurring). We decline the mother's request

because we have "no power to alter, overrule or decline to

follow the holding of cases the Supreme Judicial Court has

13
decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485

(2003).9

Judgment dated September 6,
2024, affirmed.

By the Court (Grant,
Brennan & Smyth, JJ.10),

Clerk

Entered: November 10, 2025.

9 The father's request for appellate counsel fees is denied.

10 The panelists are listed in order of seniority.

14