Whether you are contemplating divorce or have an existing custody order, Massachusetts parents should think twice before taking their children out of the Commonwealth. Regardless of the custody arrangement, the law is clear that parents cannot simply relocate their children outside of the state without permission from the Court or the other parent. This law applies to any child who was either born in Massachusetts or has lived here for at least five years.
Often times, when parents are in the process of splitting up, one of them will either want to move back to their “home state” or to the state where a new “significant other” resides. However, suddenly taking your child out of Massachusetts without permission from the other parent can have serious emotional consequences for the child and may damage your chances of obtaining a favorable custody order in the future. Of course, there are exceptions for parents who are under serious threats of physical abuse.
The courts in Massachusetts take two difference approaches to “removal” cases, depending on how custody is shared between the parents. When only one parent has physical custody, but both parents share legal custody, there is a two-part test: First, there must be a good reason for the move, i.e., a “real advantage” to the custodial parent moving, such as a necessary job change that would greatly improve the custodial parent’s ability to support the children. The reason for the move absolutely can NOT be to spite the other parent or to strain his or her relationship with the child. Second, the move out of state must be in the “best interests of the children.” Interestingly, this second prong also takes into consideration the emotional wellbeing of the custodial parent and how it affects their relationship with the child.
When both parents share legal and physical custody, the standard becomes much stricter for the parent seeking relocation. In the Court’s view, “[t]he importance (to the children) of one parent’s advantage in relocating outside the Commonwealth is greatly reduced.” There are also cases in the legal pipeline that deal with parents seeking to relocate their children large distances within Massachusetts.
In any event, parents who are thinking about relocating with their child (or who are concerned over the other parent doing so) should consult with an experienced family law attorney well before any plans materialize.