Westborough Relocation Lawyer

A relocation case is when one parent wants to move a child out of state.  Our firm receives a number of calls from people who want to move with their children out of Massachusetts or from people who have been told by their ex that they are planning on moving with their kids and they do not want that to happen.

These cases can be tough because a move usually means one parent is not going to get to see their children as much as they did when they all lived in the same proximity. Our team of Westborough relocation lawyers is up for the challenge. Our family attorneys can help you navigate these complex legal situations and protect your family’s best interests.

Burden of Proof in a Relocation Case

Many people think if they can just show that the move out of state is a positive step in their own life, then they should be able to leave Massachusetts with their children.  As with most things involving the court system, it’s never as easy as it initially seems. Unless the other parent is in agreement with you moving with the kids, there are certain things you must be able to show the Judge to have an ultimate decision go your way.

What you will need to prove if you’re looking to move out of the state with your kids largely depends on the current parenting schedule or who has physical custody of the children. Physical custody is simply with what parent the children primarily reside and how much time the child spends with each parent.

The Massachusetts Appeals Court recently issued a decision in E.K. vs. S.C., No. 18-P-1650 (May 12, 2020), regarding a relocation and custody matter.  This case dealt with a father who had moved out of Massachusetts and only had parenting time every other weekend, but was seeking to obtain sole legal and physical custody with the child being able to move out of state with him claiming the mother was not acting in their best interest.

The Massachusetts Appeals Court, in E.K. vs. S.C., laid out a number of different scenarios and defined the analysis that must be conducted within each situation.  Those circumstances include: (1) When it is the primary custodial parent who desires to move with the child; (2) When the parents share physical custody and one of the parents desires to move with the child; and, (3) When one parent, who is not the custodial parent, already lives out of state and wants the child to move out of the state to live with them.

The Relocation Statute: G.L. Chapter 208, Section 30

A court must abide by state law and, when there are questions about the law, interpret it.  This is where case law comes from – the interpretation of state law or regulations. The relocation of a child is guided by statute; namely, G.L. Chapter 208, Section 30.  This statute says: “A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown orders otherwise.”

This statute specifically discusses children of divorced parents, but case law has interpreted this to include children of non-married parents as well.

A question stands relating to the language of the statute regarding a child old enough to provide consent – at what age the Court would consider a minor of suitable age to provide consent, but that’s not the focus of this writing. Our extraordinary team of attorneys in Westborough can help someone interpret this statute and apply it to their specific relocation case.

Can I Take the Kids with Me on Vacation Out of the State?

If you have never gone to court to get any type of order in your case, you can likely take the children anywhere you’d like so long as both parents agree.  If you’ve been to court over a custody dispute, most judgments will usually include a clause that states neither party can permanently remove a child from the Commonwealth without the express written consent of the other parent or an order from the Court.  Sometimes there is a specific exception for vacations or short trips.  Even if that exception is not written in, it is the word “permanent” that is important here.  This type of clause does not mean you cannot temporarily remove a child from the state for temporary travel like vacations or overnight trips.

When the Custodial Parent Wants to Relocate

When the parent seeking to move out of state has sole physical custody of the children, the analysis used to determine whether the children should be allowed to relocate is called “the real advantage standard.”  This review was originally laid out in the Massachusetts Supreme Judicial Court case, Yannas. V Frondistou-Yannas, 395 Mass. 704 (1985).

The real advantage test is based on the idea that: (1) A child’s relationship with both parents after a divorce can never be the same as it was before the divorce, and (2) The child’s post-divorce quality and style of life are provided by the custodial parent.  In these types of cases, because the best interests of a child are so interwoven with the well-being of the custodial parent, both need to be considered together.

In determining the best interests of the child, the trial judge looks at every situation on a case-by-case basis.  The trial judge also looks at a number of factors within the overall analysis.  These factors include: (1) Whether the child’s quality of life may be improved (this would also include any improvement that happens because of the improvement in the custodial parent’s life as well); (2) The possible adverse effect of the decrease of the child’s relationship with the non-custodial parent; and (3) The extent that moving or not moving will affect the emotional, physical, or developmental needs of the child.

When considering the interest of the custodial parent, the court will look at three things. (1) The relative advantages to the custodial parent by moving; (2) The soundness of the reason for moving; and (3) Whether the move is motivated to deprive the non-custodial parent of parenting time. Just because the move is in the best interest of the custodial parent does not necessarily mean it is in the best interests of the child.

Finally, in these types of removal cases, the trial judge must also consider the interest of the non-custodial parent. The court will look at that parent’s fitness, whether that parent is actually spending time with the child, and the reasonableness of an alternative parenting schedule if the child does relocate with the custodial parent.

Once the custodial parent is able to establish that he or she has a good reason for wanting to move – a “real advantage” overstaying in the Commonwealth, then all of the other factors the judge must consider are considered collectively, with no favor over one person or another. A Westborough attorney can discuss all of these factors with a parent going through a relocation case and determine how they apply to their specific situation.

When Parents Share Physical Custody and One Party Wants to Move

If parents share parenting time of their children equally and one parent is seeking to move out of the state with the child, the trial judge will use the “best interests of the child standard.” This was laid out within the Massachusetts Supreme Judicial Court case, Mason v. Coleman, 447 Mass. 177 (2006).

Because both parents have equal rights and responsibilities with respect to the children, the importance to the children solely because of one parent’s advantage in relocating out of state is greatly reduced. In these types of cases, “the child’s interests will typically ‘favor protection of the child’s relationships with both parents because both are, in a real sense, primary to the child’s development.’” Mason, 447 Mass. at 185. Because the child moving away often obstructs the “frequent and continued contact” with the other custodial parent, it is not the act of moving out of the Commonwealth that’s relevant; it’s the actual distance that one parent is moving away from the other that is important.

The judge must consider whether the increase in travel time (both from each home and from school) and other burdens faced because of the distance would significantly impair either parent’s ability to exercise his or her existing responsibilities. After this, the main question is whether the removal is in the child’s best interests.

When the Non-Custodial Parent Wants to Move Out of State

There does seem to be some confusion surrounding when the non-custodial parent wants to move out of state but is not looking to take the kids with them.  The court cannot prevent either parent from moving out of the Commonwealth of Massachusetts. (We’re talking specifically about the Probate and Family Court – if you’re in Criminal Court, they can definitely prevent you from leaving). However, the Family Court can prevent a child from leaving the state.

If you are not looking to take your children with you when you move, you do not need permission from the court to move.  If your move is not going to significantly interrupt your parenting time with your kids, you do not have to do anything at all and can simply just continue with the same parenting time you had before the move. For example, if you typically have parenting time with your kids every other weekend and you are moving from Attleboro, Massachusetts to Cumberland, Rhode Island, you can likely still effectuate that same parenting schedule even after you move so nothing else would change.

However, if you’re moving far enough away from Massachusetts that you cannot continue with the prior parenting schedule, it’s best to file a modification so you can guarantee parenting time after your move.  For example, a move to Colorado would not allow for an every-other-weekend parenting schedule to continue because it’s just not practical. A modification of the parenting schedule to take your move into consideration could result in you having additional time with the kids during the summer or during school vacation breaks to help make up for the time you would be missing otherwise. One of our lawyers in the area can help you request a modification to your custody agreement if you are relocating to a place that could disrupt your existing schedule.

When the Non-Custodial Parent is Seeking Custody and Relocation

So, that moves us on to the situation we originally started discussing – when the non-custodial parent has moved out of state already, but then seeks custody of the child and for the child to move out of state with that parent.

In E.K. vs. S.C., the Appeals Court held that, in these types of situations, the trial judge must first consider why the non-custodial parent moved out of Massachusetts.  This review would look at (1) the whether the non-custodial parent’s move was motivated by a desire to deprive the other parent of time with the child, (2) the soundness of the reasons for the move, and (3) the advantage to the non-custodial parent because of the move.

So long as the trial judge can conclude that the parent’s move out of Massachusetts was not meant to interfere with the other parent’s relationship with the child and was not done to establish a basis to request a change in physical custody, then the judge looks to whether the out-of-state parent is rooted within the community in which that parent seeks to move the child.  If the judge can find all those things, then it is considered a “real advantage” to that parent.

After that analysis, the judge looks to whether the move is in the child’s best interest, which includes the impact of the move on each parent and the effect on the child.

When Both Parents Agree for the Children to Move to Another State

If both parents agree that the child can move out of state with one of the parents, it is best to ensure that that agreement is in writing.  So long as you have a written agreement, you do not necessarily have to get the court’s permission.

However, even if there is an agreement between the parents for the child to relocate with one parent, we highly recommend getting an agreement drafted up by a local attorney that provides for a new parenting schedule and memorializes the agreement for the move.

If you want to move out of the state and the other parent agrees, but only agrees verbally, just be aware that you could have a potential problem down the road if that parent later claims there was no agreement.  Be even more cautious of a response of “I don’t care” or “whatever.”

For example, Mom, the custodial parent, wants to move from Massachusetts to Rhode Island.  She asks Dad about it during one of the drop-off/pick-ups and he says he does not care.  She goes ahead and moves herself and the child to Rhode Island.  After the fact, Dad gets upset because he does not actually want to do the driving to where she moved to and goes to Court to obtain an emergency order for the Mom to have to return the child to Massachusetts.  If Mom had Dad’s consent in writing, it would have been a fairly shut and dry case.  Moral of the story: Always get a written agreement from the other parent if they say you and your child can move out of Massachusetts to protect yourself later.

Parental Disputes in Relocation Cases

If you find out that the other parent is planning on relocating and you do not agree with the move, it is very important for you to take immediate action.  There have been a number of cases where one parent moves with the children, but the remaining parent does nothing for a prolonged period of time.  These types of cases can be difficult and the longer they take to get into court, the more complex they become.

Once a child has lived in a different state for a consecutive six-month period, then the state they currently live in becomes what is called the child’s “home state” and that is the state that would have to make any orders involving custody or parenting time over that child. This issue can cause complex litigation in a custody matter before the merits of the custody case are even reached.

If a child is moved to another state without both parties’ consent, that fact can circumvent jurisdiction over the child changing to the new state.  The evidence in those cases has to be strong that the child was brought to another state without the remaining parent’s consent and there would need to be a valid and reasonable explanation of why filing anything in court was delayed.

For example, we were involved in a case where the mother lied and told the father her and the children were put in the witness protection program, and then she immediately disappeared with the kids.  It took the father a number of years to track down where the mother and children were before he filed in court to have the children returned to Massachusetts. If you are involved in one of these types of cases, it is important to hire a local relocation attorney who is versed in complex jurisdictional litigation.

When There Has Never Been a Prior Court Order in a Relocation Case

If there has never been a prior court order regarding custody or parenting time, then there is an extra step in the analysis before moving forward to determine whether relocation would be appropriate.  In these types of cases, there must first be what is called a “functional analysis” that looks at each of the parents’ respective parenting responsibilities to determine whether or not the situation falls more along the lines of a sole or shared custody arrangement.  Once that determination is made, then the appropriate standard relating to either sole or shared custody is used in analyzing the relocation issue.

Speak with a Westborough Relocation Attorney

If you are planning on moving out of state or your children’s parent informed you they are planning on moving, an attorney who has experience with these cases can help you protect your relationship with your children in either case. Our highly experienced Westborough relocation lawyers have dealt with numerous relocation cases and can guide you through this process.  Call our firm today to evaluate your case and come up with a plan moving forward.

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