Child Removal Out of State Laws in Massachusetts
Removal of a child from the Commonwealth during a divorce is often a highly contentious issue between divorcing parents. Massachusetts considers whether a real advantage for the child exists (for sole physical custodians) or whether the move is in the best interests of the child(ren) (for joint physical custodians). The decision is not an easy one because the judge must consider the burden the move will place on the relationship between the child(ren) and the non-custodial parent.
If you have sole physical custody of the child(ren), you must inform the Court of the following:
- Why you want to move including how the move will benefit the child(ren) emotionally, economically and socially. If moving creates an advantage for the custodial parent, the judge will likely assume it is advantageous for the child(ren) as well.
- Whether the custodial parent is relocating with a new spouse and so long as it is a real advantage to move. The interests of the new spouse are not considered by the Court.
- Whether moving is to prevent the non-custodial parent from visiting with the child(ren). Your intentions to move must be sincere and genuine.
Best Interests of the Children
If custody is shared and/or the noncustodial parent has a very active and involved role in the child(ren)’s life, the Court considers the best interests of the child(ren). The Court wants to protect the relationship both parents have with the child(ren). These cases pose greater challenges to the parent who wants to relocate the children. The real advantage test is inapplicable. The judge will consider the best interests of the child(ren).
In either situation, sole or shared physical custody, the Court will want to see that your intended move is not a spontaneous gesture, but a clear, well-conceived plan with long-range benefits.
Reasons for Moving
The judge will consider the following as good reasons for moving the child(ren):
- A good job offer or better job opportunities in the new state
- Financial advantages for you and your child(ren) (e.g., lower cost of living, better quality of life)
- Your current employer requires you to relocate
- The new state offers better educational opportunities for you and/or your child(ren) (especially if your child(ren) requires attention for special needs)
- Your support network is in the new state (e.g., your family, friends, services/programs, religious institution, etc.), and your choices in your current state are limited
- Your support network will assist you with child care and emotional support
- You lived in the other state for most of your life
- You moved to Massachusetts to be with the other parent
- Your child(ren)'s health would improve in the climate of the new state
- Remarriage and your new spouse resides in a different state
- Whether the child(ren) and or parent are/subjected to physical and/or verbal abuse by the non-custodial parent
In order to convince the Court that you are not attempting to interfere with your child(ren)'s relationship with their other parent, you must:
- Demonstrate your willingness to allow visitation (the proof is in the pudding - what you've allowed prior to seeking removal)
- Allow the non-custodial parent to have as much additional visitation as possible (school and summer vacations) to make up for lost weekend and weeknight visits
- Offer to share the traveling costs for the children
- Make the children available for frequent phone calls/Skype/etc. with the other parent
Filing a Complaint
To prevent or oppose removal of your child(ren), you need to file a complaint and/or counterclaim alleging:
- The Separation Agreement allowed for joint legal and/or physical custody
- You are compliant with the visitation schedule
- You have a close relationship with your child(ren)
- It is in the child(ren)'s best interest to continue to have frequent and close contact with both parents
- Visitation will be severely restricted if removal is allowed
- Your child(ren) has not consented to the move
- Your child(ren)'s academics will be hampered if removal is allowed
- Your child(ren) is involved in extracurricular activities
- Your child(ren) has many friend and relatives in Massachusetts, and the move would restrict contact with those friends and relative
- Removal would force the child(ren) to undergo substantial social and educational changes that would not be in his/her best interest(s)
- Your ability to exercise your joint legal/physical custodian responsibilities would be effectively inhibited by the removal
- Neither the Court nor the non-custodial parent has given their permission for removal
Kathleen A. Delaney, Esq. is a family law attorney in Woburn and provides her clients with the legal support, knowledge and skills they need. She passionately advocates for her clients to obtain the best possible solution in an economically efficient manner. She will consult with you throughout the process to answer your questions, and give you realistic and practical explanations of your options.
If you have children, Kathleen A. Delaney, Esq. understands that their best interests coincide with your need to be financially and emotionally secure during and after the process so that you can provide for them. When you are vulnerable, it is important to have an experienced attorney on your side so that you are not taken advantage of by your spouse and/or the legal process.
Conveniently located in Woburn center, contact her for a complimentary consultation:
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