Mason v. Coleman

850 N.E.2d 513 (2006)

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Nature of the Case

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Facts

H and W were married in 1985. Two children were born of their marriage in 1992 and 1994, respectively. H and W entered into a joint physical and legal custody agreement that was incorporated into their divorce decree. H and W agreed to move within twenty-five miles of Chelmsford and agreed that, in light of uncertainty as to where each would locate in Massachusetts, the children would attend school in the district of the W's residence. H and W both remarried. H relocated to New Hampshire but was only 17 miles from W’s residence in Massachusetts. Weeks after H gave notice of his plan to move to Nashua, W gave notice of her intent to relocate with the stepfather to Bristol, New Hampshire. W planned to move into her parents' home with her family and eventually into her own home nearby. H objected to W’s move. Their older child had attention deficit disorder/attention hyperactivity disorder and related learning problems. Although kind and athletic, he lacked appropriate social skills and had trouble making friends. As a result of medication, the hard work of both parents, and a dedicated school staff, the child was able to succeed in fifth grade. The Chelmsford school district had established an 'active and effective support system for the child. The new school in New Hampshire was rated below average. The judge concluded that, in light of the disruptions to his developmental process that would be occasioned by the challenges of a new home, school, and sibling, and reduction in the time spent with H, the move to New Hampshire would be 'detrimental' to the older child's socialization and education. In addition, the judge found that one of the children claimed one of them was inappropriately touched by the son of W's new husband. The allowed a temporary order enjoining removal. A different judge weighed the best interests of the children and determined that removal to New Hampshire in the manner requested was not in the best interests of the children and thus would not be authorized by the court. The judge also refused to grant H sole legal and physical custody. W appealed in that the order violated her right of freedom of movement pursuant to the Fifth and Fourteenth Amendments to the United States Constitution.