Removal of Children

After you have obtained a divorce, the lives of your children will dictate what the court allows and does not allow you to do, especially in regards to moving out of state. Your move may have a big impact on your child custody or visitation rights. In fact, a court may even stop you from moving. Regardless if you are moving for a job or a need for change, the court may use its discretion to place limitations or prohibit your movement. The area of law that regulatesintrastate as well as interstate moving post divorce is called “removal,” and is governed my Massachusetts General Laws Chapter 208, Section 30. The law holds that a minor child of divorced parents who has resided in Massachusetts for at least five years, if too young to consent on his or her own behalf, may not be removed from the Commonwealth without the consent of both parents “unless the court upon cause shown otherwise orders.”

While your divorce is a product of its own facts, and the court considers each divorce case based on its individual facts, there is case law that helps guide the courts in is decision, and in turn will help you to understand how the courts will consider your future choices in regards to moving with your children. These cases work to uphold the rights of the noncustodial parent as well as the rights of the minor child to together provide what is in the best interest of the child.

If the parent seeking removal has sole physical custody over the child, the court applies a two-pronged test from Yannas v. Frondistou-Yannas, 395 Mass. 704 (Mass. 1985). The Yannis Court considered a matter where the parents had shared legal custody but the mother had physical custody of the children.

First, the judge must decide if there is a “real advantage” in the move for the parent seeking it. This means that the removing parent is not be found to be seeking removal just to spite the other parent, deprive the noncustodial parent of visitation, or make the relationship with the children difficult. If the court finds there is no real advantage, then the case is over, and the parent will be prohibited from moving. Such a finding would be a result of a trial, as the removing parent will likely appeal the judge’s prohibition. However, if the judge finds a real advantage in the move, then the test becomes weather the move is in the best interest of the children with a great deal of weight given to the fact that their welfare is intertwined with that of the custodial parent.

Mason v. Coleman, 447 Mass. 177 (2006) made the best interest of the child the only standard to be applied in cases where the parents have joint legal and joint physical custody of a child.If there is joint custody of the child, under Mason, it is presumed that the children are fully integrated into both households and therefore have two homes. Consequently, the children’s relationships with both parents need to be protected, therefore the first prong of the Yannis test is no longer considered. The only test that applies is the “best interest test.” In Mason, the court held that “Where physical custody is shared, a Judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished.”

Another recent case that illustrates challenges of removal is Altomare v. Altomare, 77 Mass. App. 601 (2010). In Altomare, the mother sought removal to escape the stress of her hometown where her ex-husband resided with his former mistress. The mothersought removal to Scituate, MA, seventy-five miles from her current home in West Boylston, MA. The mother argued that Scituate provided her with a supportive community that would in turn allow her to be a better mother to her children. Initially, the probate court denied her request to move.

Upon appeal,the Appeals Court believed that the probate court did not sufficientlyevaluate the second prong of the Yannas test, and remanded the case for a new finding on the best interests of the children. In Altomare, the judge was instructed to decide the extent to which the mother’sdespair in West Boylston affected her children and the realistic effects of the move where she expected to have a better quality of life, in turn benefitting the children. In Altomare, upon appeal the judge allowed removal based on the distinctive facts of the case that proved what the best interest of the children was.

While the above case law provides a guideline, it must be noted that the specific facts to your case will ultimately be the determining factor to removal.