FindLaw KnowledgeBasePublished: 2011-10-20
In our mobile society where people frequently move significant distances, courts have to regularly decide a difficult issue: When will a divorced parent with custody of the children be allowed to move out of state with the kids — away from the other parent?
Such a move will inevitably lessen the children’s contact with the parent left behind. Exacerbating the separation problem, the cost of visiting will also increase, sometimes significantly.
Similar issues arise when a custodial parent wants to move with the children a great distance within the same state or out of the U.S. The scenario repeats itself whenever a custodial parent who has never been married to the other parent wants to make such a move.
In Massachusetts, child removal from the commonwealth by custodial parents is governed by a statute originally written over 100 years ago. The removal law uses fairly general language that does not answer every question that could arise. Judges have supplemented the law with a long line of interpretive cases to fill in those details.
Although the statute literally applies to a “minor child of divorced parents” and to removal from the commonwealth, it has been used by Massachusetts courts to cover all the scenarios described above.
The Removal Statute
The statute applies to minor children who are either Massachusetts natives or have lived there for at least five years, and who are under Massachusetts court jurisdiction for matters of “custody and maintenance.”
If the daughter or son is old enough to consent, he or she may not be removed from Massachusetts without that consent.
If the child is not old enough to consent, either both parents must consent or, if the parent potentially left behind does not agree to the proposed move, the court may still order the removal “upon cause shown.”
The Courts Weigh In
When the parent who isn’t moving objects, Massachusetts courts have interpreted “upon cause shown” to mean in the best interests of the child. Cases have also considered the best interests of both parents.
If the parent who wants to move has sole custody, the court looks at the best interests of the child and whether there is “real advantage” to making the move. In evaluating potential advantage, the court may look at the positive impact on the children if the custodial parent will likely do better financially or emotionally after the move. For example, the move might be for a new job or to live with a new spouse.
Another factor sometimes considered is the potential presence of supportive, extended family in the new locale.
If the parents have joint custody, it may be harder to get court permission to make the move, since the relationship with the other parent includes actually living together part of the time, and not just visits.
This is just a brief look at the complex question of child removal from Massachusetts. If you are a parent facing this situation — on either side of the issue — it can be crucial to consult a knowledgeable and experienced family law attorney to help you fight for your rights and enhance your relationship with your children.