Child Custody and Removal in Massachusetts

A parent seeking to move their child/ren outside of Massachusetts is not as simple as just packing up and moving. Such a move will likely disrupt the parenting time of the non-moving party and have an impact on the relationship between him and the child.

It is extremely important to know that if the parents are NOT married but have children together, and there are no orders or judgments from the Court regarding custody and/or support, the mother may move the children wherever she wants without permission from the Court. If there are orders or judgments from the Court, then the parent that wants to relocate must obtain permission from the Court to do so.

The Court will consider whether there is a “real advantage” to the moving parent AND what the best interests of the child/ren are. The “Real Advantage Test” is not controlled by only one factor. It is very fact specific. The Court considers:

• Whether is there a good, sincere reason for wanting to remove to another jurisdiction or whether the move is to spite the other parent
• The interests of the child (whether their life will be improved, the impact on the child’s development, educational issues of the child, health of the child)
• The interests of the parent wanting to move (see below), and
• The interests of the parent remaining in Massachusetts (alternative parenting time, elimination of association with the child) 

The Court will consider these factors, and others, related to the parent wanting to move:  

• Remarriage of the moving parent
• Job, educational and financial opportunities of the moving parent
• Military service of the moving parent
• Supportive community / Family in another state to which the moving parent wants to move
• Medical issues

If you are a parent going through a divorce and there is a shared physical custody arrangement as part of your Separation Agreement, be sure to include a provision that states the parents cannot move more than 15 or 20 miles from each other. This makes it clear to both parents that their residence is governed by the shared custody arrangement.

If you are the father of a child or children and are not married to their mother, you should immediately seek a Court order or judgment establishing custody and a parenting schedule. Be sure to include a non-removal provision in any temporary order or judgment.

If you are the parent who wants to move outside Massachusetts, seek legal advice before doing so. The Court has the authority to order you to return the child to Massachusetts if you move him or her without permission from the Court. If you are the non-moving parent, seek legal advice to ensure your ability to parent remains intact.

By Kathleen Delaney

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