Those of us living in the Northeast tend to have a certain pride about where we come from. If you’re from Massachusetts, you likely take pride in your roots and current home. It surprises many Bostonians when, during a custody case, one party requests court permission to relocate out of state. Why would one ever want to do such a thing?
Well, believe it or not, some people do in fact wish to leave Massachusetts. Some believe relocating out of Massachusetts serves their child’s best interests. This is true, even if it separates the child from the other parent. Such a request is rarely sought. It is even rarer when both parents are loving towards the minor child. During tough times, people often seek support and stability. This is a natural response to adversity. When one parent’s family, friends, and general professional opportunities are in another state, relocating to that state will be appealing. It is highly recommended to seek the assistance of a divorce lawyer experienced in relocation or removal cases. These cases are often contentious, and you typically get only one opportunity to request permission to relocate.
Is it possible for a parent to just get up and leave? Could they pack up the house, put the kids in the car, and drive to another state? Is this something they can do without the other parent’s consent? No, of course that is not permissible. Any parent who attempts this without following legal requirements may be guilty of parental kidnapping. A court order will likely demand the children’s return to Massachusetts.
The legal standard for removing a child from Massachusetts over the other parent’s objection is “cause.” That is the language from the statute, which was not very helpful until clarification was provided by the Supreme Judicial Court in 1985 when it delivered its opinion in Yannas v . Frondistou-Yannas and provided us with the “real advantage” test.
Although the real advantage test applies in cases where one parent seeks relocation out of Massachusetts with a minor child. This occurs against the objection of the other parent. In the first part of the test, the judge must assess if the move benefits the custodial parent. This determines if the advantage is substantial.
This has been defined slightly differently in different cases, but just last month it was restated that to satisfy the real advantage test, “the custodial parent must demonstrate the soundness of the reason for moving, and the absence of a motive to deprive the noncustodial parent of reasonable visitation. Essentially, the parent seeking to move must prove that the move would make logical sense, is reasonably calculated to provide for a better life for parent and child, and that the move is not for the purpose of ruining the relationship between the child and the other parent.”
If the judge finds there is in fact a real advantage to the proposed move, the judge must then determine whether the move would be in the best interest of the child and the relocating parent. The judge may consider all relevant facts in determining what might be the children’s best interest.
Also very relevant to this two-pronged test is the appellate standard in these cases. It’s so important because clearly, the test gives significant discretion to the probate and family law judge to determine whether there is a real advantage and whether a move would be in the best interests of the children. A parent who feels wronged by a trial judge can appeal. This is the only option available. The problem for that party is that the appellate court will only review the judgment and subsidiary findings of fact for abuse of discretion or other errors of law. The judge’s discretionary decision constitutes an abuse of discretion were the court concludes that the judge made “a clear error in judgment in applying factors relevant to the decision such that the decision falls outside the range of reasonable alternatives.”
I set forth the law and the appellate standard. The trial court judge will not be reversed except in very limited circumstances. However, such a reversal has just happened last month in the case of Rosenwasser v. Rosenwasser.
The parties in the Rosenwasser case had been married for about 20 years. The first seven years of the marriage were in Florida, after which the parties relocated to Massachusetts. The father grew up in Boca Raton, Florida and most of his family was there. The mother’s parents were in Canada, but her parents were snowbirds, spending five months out of the year in Boca Raton. The father was a lawyer, with an office in Newton Massachusetts and another in Boca Raton. The parties separated at the 20-year mark and the wife, then pregnant, gave birth to their daughter in 2010.
The parties completed the divorce, with the mother being the custodial parent. However, shortly after the divorce was final, the mother became unable to care for the child, apparently due to mental health issues, including depression and anxiety. The father took over primary care of the child, while continuing to operate his law office. He enrolled the child in full-time daycare and used babysitters when daycare was not available. He even, notably, took the child on week-long trips to his Boca Raton office every month.
Four months after the divorce, the father filed a complaint for modification. He sought primary custody to reflect the reality of the situation. He later amended his complaints, seeking permission to relocate to Florida with the child.
Rosenwasser is a 29-page appellate opinion, reviewing many facts relevant to real advantage and best interest of the child. Specifically, the court considered facts relevant to the child’s quality-of-life, the child’s relationship with the mother, the child’s emotional physical and developmental needs, the interests of both parties, and reasonable alternative parenting plans. Ultimately, the trial court judge denied the father’s request to relocate the child out of Massachusetts. While the appellate court credited the trial court judge’s efforts to deal with a complex situation involving two loving parents, the court concluded that the trial court judge mistakenly applied the second prong of the Yannas test.
Specifically, the court found that the trial court judge gave too much weight to the interests of the mother and not enough weight to the interests of the child and the father. In coming to this conclusion, the court considered many of the factual findings made any other parental relocation cases published in Massachusetts.
There are rarely winners and losers in divorce and other family law cases, but parental relocation cases generally have them. The reality is, moving a child beyond the reach of convenient travel for one parent will undoubtedly negatively impact that parent’s relationship with the child. These are complex cases and, as we see in the Rosenwasser case, they can be heart-wrenching and difficult for trial judges to decide, making it all the more important that a parent seeking to relocate have experienced, confident family law counsel. What is clear is that the record must be robust, must set forth all the facts relevant to each party’s argument, and must not leave gaps where the judge is unable to make necessary findings. A party losing a relocation case is unlikely to reverse on appeal and is unlikely to win another attempt.
If you face a relocation case, I recommend seeking a divorce and family law lawyer. Choose one with extensive experience in handling relocation cases. If you are dealing with such a case, we are happy to speak with you and can do so at our divorce and family law offices in Newburyport, Andover, or Boston. Just call the office at 978-225-9030 and schedule a free consultation today.