Massachusetts Child Removal Lawyer
Post-divorce relocation outside of Massachusetts could occur for numerous personal and professional reasons. Reasons to relocate outside of Massachusetts could involve a job transfer or new professional opportunity, financial growth, or better educational opportunities for your child. Other reasons may involve being in closer proximity to family, a new marriage, or medical reasons. However, questions may arise as to whether a parent can remove a child from Massachusetts during the pendency of a divorce case. Or, if removal can occur after a court issues a divorce judgment involving custody and parenting time. Generally, the short answer is “no.” First, it is important to understand the basics of parental kidnapping, child custody, and the “real advantage” child removal test. For questions like this and more, contact an experienced Massachusetts child removal lawyer to find out the answers.
Parental Kidnapping
As stated above, you cannot just take your child and leave the state. If you attempt to do so without the court’s consent, this could amount to parental kidnapping, and further, a court order to bring your child back to Massachusetts immediately. Parental kidnapping is an incredibly serious issue which often occurs during cases of child relocation. A noncustodial parent may violate child custody or visitation rights to spite their former spouse by abducting their children. A parent may not think about asking permission for vacations requiring out of state travel. Parental kidnapping may also occur to keep a child away from abusive and unhealthy behaviors of your former spouse, even if they have full custody of your child.
Please be aware that in most instances you may not take a child out of the state without an agreement between you and your former spouse approved by the Court. If your former spouse is abusive and has shared physical custody, it is important to seek a protective order or full custody before restricting access to the children.
How A Massachusetts Child Removal Lawyer Can Help You Understand The Basics
Child custody takes two forms: sole vs. joint custody. Massachusetts courts encourage families to have joint physical and legal custody agreements. Physical custody determines a child’s primary residence. Legal custody involves decisions regarding a child’s healthcare, education, and religion. Sometimes, a parent who is granted sole physical custody is granted full legal custody. If not, a parent without physical custody is often granted visitation rights of their child. Custody agreements are often decided using the Best Interest of the Child Standard. The standard considers various factors such as a child’s age, living arrangements, a parent’s mental and physical health, ability to financially provide for the everyday needs of their children, and safety.
In cases of child relocation, it is likely that due to the best interest of a child, sole physical custody would be granted to the parent who has the child’s primary residence. A Massachusetts court takes in to account whether a drastic change such as moving a child would negatively impact their overall happiness, daily routine, and affect their development. Often, judges do not want to disrupt a child’s daily routine, so relocation is often not found to be in the best interest of the child. If a reason for relocation is to limit your former spouse’s access to your child, a judge will likely not find this to be in your child’s best interest, and this would be frowned upon. However, if moving would allow the child to be in a healthier environment with better access to childcare, family, and education, this would benefit a child greatly.
The “Real Advantage” Child Removal Test
What happens when both parents can claim living with them is in the best interest of the child, but the parent with sole custody needs to move out of state? Massachusetts has a legal standard for judicial permission to remove a child from Massachusetts if the parent can show “cause” for moving. In 1985, the Supreme Judicial Court of Massachusetts established the “real advantage” test to clarify the standard for child relocation. The “real advantage” child removal test is a two-pronged test the court applies when one parent with sole physical custody seeks to relocate outside of Massachusetts, and the other parent objects to the move.
First, a judge must determine if moving provides a “real advantage” to the parent with primary physical custody. To show this, the custodial parent must show the court she or he has a good and sincere reason for moving, and there is no motive to keep the noncustodial parent from visitation rights. The court will assess if the move would provide a better life and environment for the child. If the move is found in any way to keep a child away from the other parent for selfish motives, the court will likely find there lacks proper cause.
The court tends to encourage relationships between children and both parents as much as possible. 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. Accordingly, as in all custody cases in the Commonwealth, the court next applies the best interest of the child standard. The judge may consider all relevant facts in determining what might be the children’s best interest.
Applying the Law to Your Case
Child relocation cases are very difficult for both parents and children. Moving a child away from one of their parent’s will understandably negatively impact a child’s relationship with the parent they will see less frequently. These complicated situations are heart wrenching for judges since a child having relationships with both parents is so critical. If you are dealing with a child relocation case and need an attorney’s assistance, schedule a free consult with our office to learn about how we can help you. To schedule a consult, call us at (866) 995-6663.