Relocating a Child Outside of Massachusetts: Stop Before You Move

Author: Claire C. Tutwiler

Are you thinking of moving to a warmer climate? Do you have a great job offer in San Francisco? Has your ex-wife married someone who lives in Kansas? People relocate with their children from Massachusetts every day for a host of reasons, and there are many factors for anyone to consider when deciding to make such a move. In families where the parents of minor children are divorced or were never married, the issues are more complicated. Often the biggest consideration is whether or not both parents agree to the relocation, or, absent such an agreement, whether the Court will allow it.

Permanent out of state relocation with a minor child is referred to as “removal” in Massachusetts, and the statute that governs the removal of a child from Massachusetts, M.G.L. c. 208, § 30, provides that:

“A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purpose of this and the two preceding sections of M.G.L. c 208, § 30.” G.L. c. 208, § 30.

Therefore, if you or your ex-spouse wishes to relocate from Massachusetts with your minor child, it is unlawful to do so unless both parents agree or unless the Court finds that “good cause” for the removal has been shown by the moving parent, and thus allows the removal. Because children born to unmarried parents are entitled to the same protections as children of married parents, with few exceptions, the law regarding removal applies to these families as well.

The court has developed standards by which it measures whether “good cause” has been shown to justify allowing a removal request. The standards vary depending upon the custodial arrangement and the parenting plan between the parents.

In families where the parent seeking removal is the primary custodial parent, the court must find, after considering evidence presented by both parties, that there is a good and sincere reason for the move, a ‘real advantage’ to the custodial parent (this is commonly referred to as the “real advantage test”). Yannas v. Frondistou-Yannis, 395 Mass. 704, 711-712 (1985). If the court finds that there is such a “real advantage”, then the court must still determine that the move is in the child’s best interest. Yannas, Id. In order to make this determination, no one factor is controlling. Rather, the court must collectively consider the interests of the child, the interests of the custodial parent seeking removal, and the interests of the non-custodial parent remaining behind in Massachusetts. Id.

Interests of the Child may include:

Whether or not the move may improve the child’s quality of life;

Whether or not the move presents better educational opportunities for the particular child;

Whether or not the child has any physical or developmental needs that will be better met in another state;

Whether the move presents an opportunity for the child to have relationships with extended family.

Interests of the Custodial Parent may include:

Employment opportunities in the new state, particularly those that are better than in comparison to those in Massachusetts (including opportunities for increased income, opportunities for promotion, or the opportunity to stay with an employer whose location is moving);

The existence of a better support system in the new state (immediate and extended family, friends, child care);

Medical reasons;

Remarriage.

Interests of the Non-Custodial Parent may include:

Whether the move would stem or eliminate the ability of the child to have a relationship with the noncustodial parent;

Whether there are any potentially adverse effects upon the child as a result of changes to the parenting plan with the noncustodial parent that would affect their relationship;

Whether there is a reasonable alternative for the current parenting plan.

In families where the parenting plan provides for time with the child to be shared equally, or near equally, the standard applied by the court in determining whether “good cause” has been shown to justify allowing a removal request is whether the move is in the best interest of the child. In these cases, the parent requesting removal and the parent opposing removal share equal rights and responsibilities to the physical custody of the child. As a result, the “[j]udge’s willingness to elevate one parent’s interest in relocating freely with the child is often diminished”. Mason v. Coleman, 447 Mass. 177, 184-185 (2006). More importantly, the child develops substantial ties through the time they share with each parent. The court’s central question in determining whether a removal is in a child best interest if the parents share parenting time is whether the relationship the child has with both parents can be equally preserved upon such a move. Id. at 185.

No matter the custodial arrangement, removal cases are often emotionally charged and, if opposed, often require a trial to be decided. Litigants must be prepared to present very specific evidence, often through the testimony of third parties and experts, in support of or in opposition to the request for removal. You are best served by having counsel familiar with family law litigation in such a dispute. No matter which side of the removal action you are on, you should consult with a family lawyer as early in the process as possible to gain an understanding of your rights and your responsibilities.

If you have any questions on this, or any other family law related, issue, contact me at 617-330-7045 or ctutwiler@rubinrudman.com.