Physical custody, legal custody, parenting time, and child support are usually the focus in custody proceedings. If both parents live in Massachusetts, although the distance between their residences or the child's school may be relevant, a custodial parent's residence is particularly important if he/she seeks to relocate to another state. One of the major concerns with a custodial parent's desire to relocate from the Commonwealth is how it might affect the non-custodial parent's parenting time. Let's review what Massachusetts laws say about “removals.”
Under what circumstances do I need to seek permission before relocating?
If a child has two legal parents and the custodial parent wishes to relocate, the custodial parent needs to seek permission from either the non-custodial parent or a court. Smith v. McDonald, 458 Mass. 540 (2010).
Generally, a child born to a married woman is presumed to be the child of the mother's husband. In such a case, the child automatically has two legal parents. If a child is born out of wedlock, however, a putative father is only a legal parent if he has either: (1) signed an acknowledgment of parentage; or (2) established paternity through a court proceeding pursuant to M.G.L. c. 209C, §2. Once it is established that a child has two legal parents, the custodial parent may not remove the child from the Commonwealth without permission.
If a child has only one legal parent (because one is deceased or because paternity has not been established, for example), however, permission is not needed for removal. Smith v. McDonald
What if my child has two legal parents but there is no custody order?
Lack of a custody order does not discharge the custodial parent's obligation to obtain permission from the court or the other parent before relocating. Miller v. Miller, 478 Mass. 642 (2018). As long as there are two legal parents, if one removes the child from the Commonwealth without permission, the other parent may begin legal proceedings, requesting that the child be returned to the Commonwealth. As such, to avoid being forced to return to Massachusetts after establishing residence in another state, obtaining permission is the safest way to guarantee that your relocation or custodial rights are not interrupted.
How can I convince the court to allow me to remove my child from the Commonwealth?
In order for a court to determine whether it is appropriate for a child be removed from the Commonwealth, it will consider what is called the “Real Advantage Test.” The Test analyzes (1) a “good, sincere reason” for the move; and (2) the best interests of the children. Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-12 (1985).
In deciding what a “good, sincere reason” is, a court would take into account the financial, emotional, social, etc. benefits of the relocation to the custodial parent. A court would also weigh whether the custodial parent has been open to alternative parenting time arrangements for the non-custodial parent. Ultimately, a court would want to confirm that the relocation is not an attempt by the custodial parent to deprive the non-custodial parent of a relationship or parenting time with the child. Some factors to consider in proving that you have a “good, sincere reason” to relocate include whether you have ties to the new state (e.g., family, friends), whether you have been offered better employment there, or whether your financial circumstances will be improved by relocating.
In reviewing the best interests of a child, a court will evaluate: (1) “whether the quality of the child's life may be improved by the change;” (2) “the possible adverse effect of the elimination of the child's association with the non-custodial parent;” and (3) “the extent to which moving or not moving will affect the emotional, physical, or developmental needs of the child.” Yannas at 711. Here, assess factors such as the child's relationship with family and friends in the Commonwealth; the child's education and activities in the Commonwealth in comparison to what would be available in the new state; etc.
Last, but certainly not least, the interests of the non-custodial parent are also relevant. If the non-custodial parent is involved in the child's life, exercises parenting time consistently, and has a bond with the child, your burden of proving that the move would not adversely affect the non-custodial parent's interests (and the child's) is higher. Contemplate, therefore, ways that you would be able to ensure that the non-custodial parent would be able to maintain his/her bond and parenting time with the child upon relocation.
Be sure to take the proper steps before you make definitive plans to remove a child from the Commonwealth, as convincing a court to permit you to relocate is not always as simple as you may think it should be.