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Appeals court hears challenge to removal order allowing two children to move to Wisconsin; judges take case under advisement
Summary
In Docket No. 24P700 the Appeals Court heard argument over a probate judge’s decision allowing a mother to remove two minor children to Wisconsin. The father contends the trial court applied the wrong legal standard and failed to weigh the children’s best interests; the court took the appeal under advisement after argument from both sides.
The Massachusetts Appeals Court heard argument Jan. 15 in Docket No. 24P700, Rappaport v. Rappaport, about whether the Probate and Family Court erred by allowing a mother to remove two minor children to Wisconsin.
Attorney Alisa Hacker, representing the appellant father, argued the trial judge applied the wrong legal standard for removal and improperly treated the mother as the primary custodial parent. Hacker told the panel that the younger child has an IEP and the older child has significant mental-health needs and therapeutic schooling in Massachusetts; she said the judge gave “conclusory” findings favoring the mother’s move based largely on a conclusion that the mother would have increased support from her family in Wisconsin.
Counsel emphasized that the factual record supports a finding of shared or functional custody and argued that, under Mason (2006) and other authority cited in the briefs, the best-interest standard — rather than an automatic advantage for a putative primary custodial parent — should control the removal analysis. The father proposed alternative visitation plans tailored to holidays and school vacations and said the judge’s every-other-weekend plan proved disruptive.
Dana Kerhan, for the mother, defended the judge’s application of the Yanis/Giannis standard (as cited in the briefs), urged deference to the Probate Court’s factual findings and said the Guardian ad litem(s) and the judge concluded the move was in the children’s best interests. Kerhan noted that the record included two GAL reports recommending the move and that the judge credited those findings.
The panel questioned counsel about the functional custody analysis, the weight to be given GAL recommendations and whether the son’s later decision to return to Massachusetts affects the validity of the removal order. After hearing argument from both sides, the court took the case under advisement.
