Massachusetts Appeals Court Says Parental Kidnapping Ok?

A few months ago, the Massachusetts Supreme Judicial Court refused to allow James Mason’s sons to be moved out of state against his will.

Last week, the Massachusetts Appeals Court reversed a Family Court decision and sent Mark Evans’ seven-year-old boy packing to Connecticut . The decision can be read here.

Not surprisingly, parental rights advocates in the northeast find the case to be disturbing on several fronts.

Advocates note that early on, the mother broke the law by moving with the child to Connecticut before obtaining court permission to do so. Later, Family Court Judge E. Chouteau Merrill ordered her to move back.

Judge Merrill found that, “The move is not in [the child’s] best interest.” Judge Merrill also found that “The most generous characterization of the Wife’s reason for moving to Connecticut is because ‘she wants to’. . .” Judge Merrill also found that the wife’s claims that she could not afford to stay in Massachusetts, was able to find employment only in Connecticut, and that she had no support system in Massachusetts all lacked credibility.

Most fathers who have contemplated appealing bad family court decisions have learned that it is almost hopeless to get the Massachusetts Appeals Court to overturn a family court decision.

“Don’t bother,” say the lawyers, “The Appeals Court will never overturn this.” A pattern seems to be emerging that it does so mainly when the aggrieved party is a mother. See, for instance, Rosenthal v. Maney, another case in which the family court had denied a moveaway by a mother only to be overturned by the Appeals Court . It is getting harder and harder to believe that gender bias is absent. <>

Similar patterns are seen elsewhere.

In Fitzgerald v. Fitzgerald, the Washington , D.C. courts found that the Child Support Guidelines were excessive and unconstitutional – when the plaintiff was a non-custodial mother.

In Georgia , a moveaway was reversed by a higher court – when the plaintiff was a non-custodial mother.

In Pennsylvania , the State Supreme Court suddenly discovered that non-custodial parents have substantial expenses for parenting time – when the plaintiff was a non-custodial mother.

Of course, there are many cases in which higher courts have supported the appeals of fathers or rejected the appeals of mothers. But these tend to be cases in which the lower court decisions were flat-out, no-brainer mistakes.

Parental rights advocates hope that their suspicion of gender bias in the Appeals Court is wrong. But it is striking that it reversed Judge Merrill in this case, abandoning its long-established standard that it would do so only when the findings of the lower court were “clearly erroneous.”

Just to add insult to injury, the Appeals Court cited, among other reasons, for the move “the companionship of family, and readily available child-care assistance from family.”

In other words, the court recognized that the mother needed the “companionship of family,” but denied her boy the companionship of his family – namely his father. Likewise, in mentioning the availability of child-care assistance from family, the court seemed to think that an uncle or grandmother is preferable to the child’s own father.