We here living in the Northeast tend to have a certain pride about where we come from. If you’re from Massachusetts, you likely have a certain level of self respect arising out of where you grew up and where you now live. So, it comes as a surprise to many Bostonians when, in the throes of a custody action, a party asks the court for 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 even feel it is in the best interests of their child if the court were to allow them to relocate out of Massachusetts, even when moving will separate the child from the other parent.  It is not often that such a request is sought and even more rare when both parents are loving parents of the minor child.  The reality, however, is that when people go through difficult times in their lives, they tend to seek out support and stability.  When one parent’s family, friends, and general professional opportunity is in another state, relocating to that state will be appealing.

Can a parent just get up and go? Can he or she pack up the house, put the kids in the car, and drive off to another state without the permission of the other parent? No, of course that is not permissible. Any parent’s attempt to do so without complying with the requirements of the law could amount to parental kidnapping and, in any event, will likely result in a court order requiring return of the children to Massachusetts.

The legal standard for judicial permission to remove a child from Massachusetts against the objection of the other parent is a showing of “cause.”  That is the language from the statute at least, although 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.

The Real Advantage test is a two-prong test applied to cases in which one parent seeks relocation out of Massachusetts with a minor child or children against the objection of the other parent.  In the first part of the test, the judge must determine whether the move would provide a real advantage to the custodial parent. It 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 the aforementioned two prong test is the appellate standard in these cases.  It’s so important because clearly, the two prong test allows 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. The only recourse for a parent who feels he or she has been wronged by a trial judge is to appeal. 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 because, seemingly, the trial court judge would not be reversed except in very limited circumstances. However, such a reversal has just happened last month in the case of Rosenwasser v. Rosenwasser.

In the Rosenwasser case, the parties have been married 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 parents.  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 enroll 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.

About four months after the divorce was final, the father filed a complaint for modification, seeking to be named the primary custodial parent, reflecting 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 interests. 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 judges 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 and divorce another 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. Accordingly, if you are faced with a relocation case, it is my opinion that you seek out a divorce and family law lawyer with extensive experience in trying 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.