Massachusetts divorce lawyer Nicole K. Levy reviews the law affecting the removal/ relocation of children from the Commonwealth by a parent.
On days when the temperature is in the single digits, you probably think about leaving Massachusetts. (Or maybe your family lives in another states or you are simply ready for a change.) Whatever the reason, you may be considering a moving your family out of Massachusetts. If you are divorced or separated from your child’s other parent, the question becomes: will the Court let you move?
Perhaps you have a shared custody agreement. Perhaps you have full custody. Maybe you are in the process of a divorce. Regardless of your custodial and/or parenting arrangement, picking up and moving is not a simple prospect. Massachusetts refers to this as “removal” and the basic rule is this: you need consent of the other parent, or you need permission from the court. If you don’t have consent, be prepared to make your case in front of a judge. Note that removal applies to children born in Massachusetts or children who have been here for at least five years.
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If you are divorced, chances are that you will need the consent of your ex-spouse, or the court’s permission to move out of state. Getting permission cannot be done after you have already moved. Before any substantial steps are taken, you should speak to your ex-spouse and determine whether he or she will consent. In some cases, if the move is minimal, such as a move from northern Massachusetts to southern New Hampshire, consent will be easy to obtain. But you still need it. While distance can certainly be a factor in the courtroom, a short move out of state does not create an exception from the consent or permission requirements.
If you are currently going through a divorce, and there are no orders currently in place, it is presumed that you and your spouse have shared custody of your children. Technically, either one of you can leave Massachusetts with your children. However, despite this technicality, it is frowned upon by the courts to leave the state without consent or permission from the court. You may be ordered to return to Massachusetts, and worse, this may drastically affect any subsequent custody orders. It can lead to your spouse obtaining full custody of the children.
Even if you were never married, M.G.L. c. 209C § 1 states that, “Children born to parents who are not married to each other shall be entitled to the same rights and protections of the law as all other children.” Despite the fact that there is no statutory rule for unmarried parents, Massachusetts appellate courts have made quite clear that unmarried parents still need the other parent’s consent or the court’s permission to move out of state. in Smith v. McDonald, decided in 2010, the Massachusetts Supreme Judicial Court reasoned:
While a statute governing divorced children is not applicable directly to nonmarital children, the legal equality of nonmarital children pursuant to G.L. c. 209C, § 1, dictates the same rule apply for children in comparable circumstances. Accordingly, when a nonmarital child has two legal parents, the parent with custody may not move the child outside the Commonwealth without the permission of the other parent or of a court.
Indeed, even if you have sole custody of your children, and the other parent has little or no time with them, the results of leaving Massachusetts without consent or permission can be problematic in the extreme. Judges take removal cases very seriously, regardless of the marital history of the parents. Leaving without consent from the other parent or permission from the court can lead to you losing custody of your children.
There is one major exception to the law of removal. A commonly overlooked aspect of the Massachusetts removal statute is the law only applies to a child “who is a native of or has resided five years within” Massachusetts. In this context, “native” simply means the child was born in Massachusetts. If your child was born in Massachusetts, you need the court’s permission to leave, regardless of the child’s age.
If the child resided in another state when he or she was born, and the child is less than five years old at the time of move, then the removal statute does not apply. Still, as long as Massachusetts retains jurisdiction over custody, you’ll want to consult with an attorney before buying that ticket to Hawaii.
In a removal case, the court considers two distinct, yet similar, tests to determine whether removing the children from Massachusetts should be allowed: the “best interest of the child” and the “real advantage” test. The court considers a variety of factors and circumstances when evaluating both tests during a removal trial. The court must first see if the parent seeking removal has a sincere reason for leaving Massachusetts, which does not include alienating the other parent. Massachusetts decisions have found a “real advantage” in a variety of scenarios, ranging from improved employment opportunities to the desire to live with a new spouse in the destination state.
In the second, “best interest” prong of the test, however, the court must evaluate the move from the child’s perspective. Here, one factor the court considers is the resulting loss of parenting time with the non-custodial parent. (Of course, in Cartledge v. Evans the Appeals Court noted that a disruption in visitation with the other parent cannot be controlling in these cases or no removal petition would ever be allowed.)
The probate court judge must consider how the children’s lives will improve with certain elements like education, living situations, proximity to family, etc. The court even considers whether your life will improve, such as your employment, your housing, and your support system. There are a variety of factors that the court uses in determining whether a removal is allowed and each one plays a role in the judge’s decision.
In most cases, a parent who demonstrates that the move presents a “real advantage” to him or herself will prevail in the second prong of the test. However, in 2015, the Appeals Court decided Murray v. Super, where the Court found that the mother’s request to remove the children to California included a “real advantage” – namely, the mother’s sincere desire to remarry with a new husband in California – but that the distance from the children’s father was so extreme that the move was not in the children’s best interest.
The main problem with removal cases is the high likelihood of trial, where there is often no “middle ground” between moving or staying in Massachusetts. If one parent wants to move to California, it is not as if the parties can settle on Indiana as a compromise. Removal cases tend to be “all or nothing”, with a trial representing the only means of resolution. For a party looking to take a new job – or start a life with a new spouse – the prospect of waiting for a trial can be discouraging.
If you are considering a move, reflect on why you want to move, and why you want to move to a particular area. You may already know the other parent’s reaction to you asking his or her consent, and recognize that you are going to need the court’s permission to move, which usually means going to trial. Consult with an attorney to determine the best course of action.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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