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A house divided

The SJC's pivotal ruling on a joint custody case leaves a blended family caught in the middle and split in two

CHELMSFORD -- Sitting in the kitchen of the Cape his mother wishes she could sell to move north, 14-year-old Tristan Shanley Mason puts his head between his hands and sighs.

``I still don't know how I got into the middle of all this. My parents divorced, and sometime between then and now I was drawn into the middle," he says. ``Please let it end tomorrow. It's like a chain I'm dragging around with me."

Tristan and his 12-year-old brother, Spenser, are at the heart of a case the Supreme Judicial Court decided last week on the thorny question of whether a divorced parent with joint physical custody can move the children out of state.

The boys' mother, Betsy Shanley Coleman, who has a toddler by her second husband, wanted to return to her hometown of Bristol, N.H., where her new husband and his ex-wife share equal custody of their two sons. Shanley Coleman's ex-husband, James Mason, who lives in Nashua, N.H., wanted his sons, Tristan and Spenser, to stay in Chelmsford.

In its unanimous decision, the SJC upheld a 2003 family court ruling that ordered the boys to remain in Chelmsford schools and propelled Shanley Coleman to split her time between Chelmsford and Bristol, 90 miles apart, and sometimes rendezvous with her husband midway between the two towns.

Her son Hunter, now almost 3, has never lived full time with his father even though his parents are married.

The SJC, which had plucked the case from the docket of pending appeals, outlined a fundamental difference between cases in which one parent has physical custody and cases of joint custody. Although the well-being of a parent influences the well-being of the child, the SJC found, the benefit a parent may derive from moving carries considerably less weight in determining the children's best interests when custody is shared than when it is not.

``While a joint physical custody agreement remains in effect," Justice Judith Cowin wrote for the court, ``each parent necessarily surrenders a degree of prerogative in certain life decisions, e.g., choice of habitation, that may affect the feasibility of shared physical custody."

The SJC's decision not only guides future cases involving relocation and joint custody in the Commonwealth but also promises to generate wider interest because the SJC is a well-respected court and few state supreme courts have considered the subject. The ruling, says Jeff Atkinson, author of ``The American Bar Association Guide to Marriage, Divorce & Families," strengthens an emerging trend of courts looking at each case based on its particular facts without a presumption for or against allowing the move. It also comes in one of the most wrenching areas of family law.

``It presents almost unresolvable issues to the courts. You can't go with the child, and you're stuck here. Or the other parent is moving away with the child," says Charles Kindregan , professor of law at Suffolk University and author of the Massachusetts Practice series on family law. ``No matter what you decide, somebody's going to be badly hurt."

The SJC pronouncement that pleases Mason leaves Shanley Coleman dismayed and awaiting action on her separate petition in family court for sole custody. Their sons, who the trial judge noted had expressed interest in spending more time with their father, now clamor to move to Bristol and live primarily with their mother.

``Right now the family is in upheaval," says Shanley Coleman, 43.

``It's nothing more than we had hoped for," says Mason, 45, ``but it is pleasant to see the case resolved."

Mason's attorney, Adam Rowe, calls the SJC ruling ``a victory not only for Mr. Mason and his family but for preserving the concept of joint custody." Shanley Coleman's trial attorney, Carol Phinney, is critical. ``It fails to remedy the basic inequity," she says, ``which is father can reside in New Hampshire but mother has to remain here so the kids can stay in Chelmsford public schools."

Custody labels
Shanley Coleman and Mason, who met as co-workers in a software company, wed in New Hampshire in 1985, and during the first years of their sons' lives Mason cared for them while Shanley Coleman worked. When they divorced in 1998, they agreed to move from Hampton, N.H., to within 25 miles of Chelmsford to be near her job in Lowell and his in Lexington. They agreed to joint legal custody. They also established a parenting schedule that favored Shanley Coleman when school is in session but, as with many divorce agreements in recent years, did not label the arrangement either joint physical custody or sole physical custody with visitation.

Fern Frolin , co-author of the Massachusetts Bar Association's friend-of-the-court brief, worries that the SJC, in relying on statutory custody labels she considers outdated, will undermine that trend as divorcing couples anticipate the possibility that one parent may want or need to move in the future. ``We'll be back in labeling arguments," Frolin says. ``Instead of continuing down this road of abandoning old language about custody and particularly about visitation, which is really an unfair term for a fit parent's time with their child, we're going to have to take a step backward."

At the time Middlesex Probate and Family Court Judge Judith Nelson Dilday heard the case that later landed in the SJC, the boys lived with Mason from Friday morning to Tuesday morning every other week during the school year, and alternated equally between parents during school vacations and summer. Although Shanley Coleman thought of herself as the primary caretaker, the family court considered the arrangement joint physical custody, a recognition applauded by Ned Holstein, founder of Fathers and Families, a fathers' rights group that submitted a friend-of-the-court brief to the SJC. ``Both the trial court and the SJC," he says, ``have recognized that an every-other- weekend parenting schedule can be very important to children and should not be disrupted."

The case began in 2002, when Mason and his second wife moved 17 miles to Nashua. ``We weren't happy in Chelmsford," Mason says. ``We put a compass on the map and drew a 25-mile arc and came up with what we wanted in Nashua."

That move spurred Betsy and Jon Coleman, whose ex-wife also lived in Chelmsford, to consider moving to New Hampshire, too. With Jon unemployed and Betsy having family in Bristol, the Colemans hoped to sell their property in Chelmsford, save money by living with Betsy's parents, start a business developing land there, and persuade Jon's ex-wife and her fiance to move to Bristol.

Because she was not asking for a change in custody and she thought few schedule adjustments were needed, Shanley Coleman expected Mason to be amenable. Coleman's ex-wife agreed to the plan, but Mason objected. By the time Dilday ruled on his petition to block the boys' move, Coleman and his ex-wife had relocated to Bristol so their sons could start the school year there.

In siding with Mason, Dilday questioned the financial benefits of the move, noted the ``paramount importance" of the progress Tristan, who has attention deficit disorder, was making in school, and emphasized a father's critical role for boys entering adolescence. She also faulted Coleman and his ex -wife for moving before this case was decided.

Shanley Coleman remained free to move, albeit without the children. ``How could I do that?" she asks.

In upholding Dilday's ruling, the SJC, while noting Shanley Coleman's objections to Dilday's interpretation of the facts, found the judge had correctly exercised her discretion.

Dilday not only blocked Shanley Coleman from moving with the children but also imposed a new custody schedule that requires the boys to spend one week with their mother and the next with their father year-round. Almost three years later, Mason talks of ``an overall exhaustion with the process," and Shanley Coleman complains the new schedule is disruptive. She bases her petition for sole custody on the boys' deteriorating grades and difficult relationship with their father. ``The 50-50 has been a horrible, horrible failure," Shanley Coleman says.

Mason has a different view. ``Kids of divorce, like kids in any family, have a lot of feelings at any time. Among these are questions of parents and loyalty to parents. These things shift around even under the best of circumstances," he says. ``Just because the parents can't come to an agreement doesn't mean the children have a mature enough perspective that they can be looked to as a tiebreaker."

Split decision
Shanley Coleman allowed a reporter to interview her sons in Chelmsford and Bristol before the SJC decision and by telephone after it. Mason declined a request to visit the boys in Nashua. (He also declined to be photographed.)

``I want to live full time with my mom. I want to move up north to live with my stepbrothers," Tristan says before the ruling. ``We're stuck down here."

``Usually it's a lot better at Ma's house," Spenser says. ``I would like to live in New Hampshire."

This spring a school counselor reported Mason to the Department of Social Services after Tristan mentioned his dad had cuffed Spenser on the head during an argument over homework. A DSS investigator, according to a copy of the report viewed by the Globe, found no evidence of abuse but dismissed Mason's contentions that his children are ``doing as well as possible emotionally" and that their views are skewed by their desire to please their mother.

``This worker viewed his children as emotionally troubled and desperate to change their situation," the investigator wrote. ``Whoever's at fault is not the real issue."

One overcast day in Bristol, shortly before the SJC ruling, Hunter clambers over Spenser and 13-year-old Sean Coleman as the two stepbrothers race all-terrain vehicles on PlayStation, and Tristan, playing Burnout Legends on a handheld, glances up from the sofa.

``I like to be with my family," says Spenser.

``Everything seems to work out easier for me when I'm up here," says Tristan.

Several days later their mother tells them about the SJC decision. ``I've lost what I wanted," Tristan says, sniffling. ``I'm just the kid. I don't get any say."

Says Spenser: ``I'm not really shocked because it's happened so many times now, but I'm really disappointed. I just really thought it was going to happen this time."

In May, when the justices of the Supreme Judicial Court heard oral arguments in Mason v. Coleman, they were mindful of the human drama behind the lawyers' presentations.

``There is no fairness here," Chief Justice Margaret Marshall remarked then. ``There is on-the-ground hard reality."

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