Under Massachusetts law, when a parent with sole physical custody of a child seeks to move to another state, the courts will make the determination of whether or not to approve the move based on a two-pronged test. First, does the move provide a "real advantage"-that is, is there a good reason for the move. Second, the court will consider whether the move will be in the child's best interest.
The Massachusetts Appeals Court case of Doe v. Doe demonstrates how a court may apply this test to a relocation request.
A request to move to California
The mother and father were married for approximately eight years. By a judgment of divorce, the mother was granted sole legal and physical custody of the couple's four children. Prior to the completion of the divorce, the mother was forced to move from her marital home after the landlords, the father's brothers, evicted her and the children. Meanwhile, the father was diagnosed with Stage Three Melanoma.
During the couple's separation, the mother became engaged to another man who lived in California. The man had been paying all expenses for the wife and children. The mother asked that she be allowed to remove the children to California. The judge granted this request, finding that she had been the primary caretaker of the children all their lives. The father appealed this ruling.
Financial and other aspects of the move request
The Massachusetts Appeals Court found that the mother had a good, sincere reason for seeking to remove the children to California. The mother wanted to live with her fiancé and would receive emotional support as a result of the move. In addition, the mother's fiancé provided all economic support for the wife and children, and so the children would benefit financially from the relocation.
The father alleged that the lower court had only considered the financial angle of the move and had failed to consider the second prong of the test related to the children's best interest. However, the lower court judge considered not only the vital financial benefits to the children, but also weighed how the children's best interests were interwoven with the well-being of their mother.
Finally, the father's failure to visit with his children with any type of consistency had not been in the children's best interests. The removal to California would not lessen the sporadic or non-existent contact by the father in the past. In addition, the mother had offered up to four weeks visitation per year with the father. Therefore, the approval of the move to California was affirmed.
A complex analysis
If you are considering relocating with your children, or opposing such a move, and if there is no written agreement between you and the other parent, then a court order must be obtained prior to the move. The analysis involved in such cases may be complex, so it is imperative that you consult with an experienced family law attorney before taking any action.
