By statute, both divorced parents must consent to their minor child moving out of the Commonwealth. The minor must be a Massachusetts native or a minimum five-year resident over whom a Massachusetts probate court has jurisdiction. Unless the probate court “upon cause shown” otherwise orders, mutual consent is necessary. Courts here grapple with the financial, social and emotional impact of a custodial parent seeking to relocate a minor child to another state. Defining “upon cause shown” has spawned two standards. Probate courts rely on the Real Advantage Test and the Best Interests of the Child to address this complex issue.

This post examines the real advantage test. It addresses how it differs from the best interests of the child. Also, the post considers arguments to persuade a probate judge to allow out-of-state relocation.

In a seminal case, Yannas v. Frondistou-Yannas, the Supreme Judicial Court (SJC) articulated a two-prong test as a blueprint for probate judges facing removal challenges. The first prong is the real advantage test. Under this test, a custodial parent must demonstrate  “the soundness of the reason for moving” himself or herself and the minor  from Massachusetts. The parent also must show the relocation is not motivated by a desire “to deprive the noncustodial parent of reasonable visitation.”

The Best Interests Standard

If the real advantage threshold is satisfied, the second prong requires the probate judge to determine whether removal would be in the child’s best interests. Factors weighed in gauging “best interests” include:

  1. Whether the child’s quality of life would improve. This includes improvement flowing from an upswing in the custodial parent’s quality of life.

 

  1. Any possible adverse effect on the child from eliminating or curtailing  association with the noncustodial parent.

 

3.  The degree to which relocation or not moving might affect the child’s emotional, physical or developmental needs.

 

  1. Both parents’ interests.

 

  1. The feasibility of an alternative visitation schedule for the noncustodial parent.

 

The SJC in Yannas said the pluses and minuses of moving or not moving to the parent who has sole physical custody of the minor was a significant factor in deciding a child’s best interests. The Court reasoned “the best interests of a child are so interwoven with the well-being of the custodial parent.” In contrast, disrupting the noncustodial parent’s visitation could not be the controlling factor. If it were, the court said no removal petition would ever be allowed.

The real advantage test gained traction  three decades ago. The belief then was that it was unfair to compel a divorced custodial parent, usually the mother, to remain in a particular locale. Such a restriction would hinder her efforts to move on with her life.

Joint Physical Custody

Nowadays, joint legal and joint physical custody is more prevalent than it once was. Reflecting this new, more equal, footing by both parents in child-rearing, probate judges are listening to the mental health professionals testifying in their courtrooms. Above all, these professionals advocate the importance of both parents having ongoing involvement with their kids. Courts are more inclined to rely on the best interests of the child standard.

A key SJC decision articulating this shift in approach to removal was Mason v. Coleman (2006), which involved parents who had joint physical custody. In contrast, in Yannas the mother had sole physical custody.

The Mason court held that where parents shared joint physical custody, the minor child’s interests typically “favor protection of the child’s relationships with both parents because both are, in a real sense, primary to the child’s development.’”

Joint physical custody doesn’t necessarily restrict a minor’s  relocation outside the Commonwealth. Still,  the Mason decision did note that joint physical custody diminished the importance of the “child’s best interests” factor of relocation being advantageous to one parent. According to the  decision, “upon cause shown,” which allows a judge to order removal absent both parents’ consent, means demonstrating that removal was in the child’s best interests, taking into account all circumstances.

Arguing for Removal

How, then, can a probate judge be convinced to allow a minor to relocate outside of Massachusetts when doing so would be particularly advantageous to the petitioning parent ?

Among the reasons cited by custodial parents seeking to relocate and remove their minor child are job opportunities. There may be greater financial rewards that would benefit the child. Also, petitioners point to a stronger support network of family members in the new state to assist in child-rearing. Another reason includes a lower cost of living out of state that would enhance the child’s lifestyle. Also, a remarriage arguably would provide a more stable home.

Even if the parties have joint physical custody of the minor, the petitioner for removal can offer evidence that he or she performed the lion’s share of child care. The petitioner should insist he or she was not seeking to interfere with the other parent’s relationship with the child. Sometimes removal does not greatly increase the geographic distance between the relocated parent and minor child and poses little hardship.

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