Removal of Children in Massachusetts Divorce

Divorce can have a consequential impact on the children of separated parents. For that reason, courts involved in Massachusetts divorce cases take extreme caution in rulings that involve children. Their health and welfare are often the most critical issues in divorce proceedings.

One of the sensitive aspects of Massachusetts divorce is when one parent decides to move out of the Commonwealth and expresses the desire to take their child with them. The impact of this possibility is far-reaching and potentially severe for all parties involved. This is what we call the removal of children in Massachusetts.

If the parents cannot reach an agreement over this move, the dispute is heard in court. The matter at hand is to determine whether the petitioning parent stands to gain a true, tangible benefit from leaving Massachusetts — and whether the relocation will be positive for their child, as well.

In this article, we examine the removal request process and the way that courts evaluate whether relocation is in the parties’ best interests.

Removal Statute

Massachusetts makes removing children from divorced parents from the Commonwealth a deliberate process. The wellbeing of the child is of utmost importance and it is the central point of all associated legal proceedings.

The Massachusetts removal statute, G.L. c.208 s.30, declares that a child born in the Commonwealth (or one that has lived 5 years or more in the Commonwealth) shouldn’t be removed without consent, if they’re of a suitable age to be able to provide it, unless both parents or the courts order otherwise.

With this statute in place, the court initiates a line of inquiry to determine which analysis standards will apply as they decide the outcome of the child removal petition.

Is the Child of Suitable Age to Consent?

The first consideration is whether the child is capable of expressing their consent to be removed from Massachusetts. Although the statute declares the child must be of a “suitable age,” there is not a current numerical standard for what defines this age.

If the child is deemed to not be of suitable age to consent, the inquiry continues.

Has the Court Been Shown Cause?

If the parents in a Massachusetts divorce cannot agree on the removal of the child, the parent requesting removal must demonstrate that the relocation is in the child’s best interests. The court must agree that cause has been shown in this regard before moving to the next step.

Is the Parent Requesting Removal the Primary Custodian?

Lastly, the court asks about the nature of the custodial agreement. If the parent requesting removal is the primary custodian — meaning the child lives with them and only visits the home of the other parent — then the “real advantage” analysis can begin.

If the parents share custody of the child equally, the “real advantage” test does not proceed. Instead, the court considers the request for removal strictly in the best interests of the child, not those of the parents.

The Real Advantage Test

The real advantage test is colloquially known as the “Yannas test” in reference to the Massachusetts Supreme Judicial Court decision that established it, Yannas Vs. Frondistou-Yannas.

The underlying principle of the real advantage test is that a child’s wellbeing can be inextricably linked to that of the primary custodial parent. If the parent requesting removal can demonstrate a true benefit to moving out of the Commonwealth with their child, the court may approve the move.

Administration of the real advantage test occurs in sequence in two stages, often referred to as “prongs”:

  • Will the primary parent gain a real advantage in the move?
  • Is the move in the child’s best interests?

Next, we’ll look at advantage.

Will the Primary Parent Gain Real Advantage By Moving?

The real advantage test determines whether the requesting parent’s life, career, financial status, or other interests will improve if they leave the Commonwealth. Courts recognize that the child’s quality of life stands a better chance if their primary parent is leading a satisfied and contented life. Conversely, the child’s life quality can be compromised if the parent they live with is unhappy or resentful.

So the key question that the real advantage test strives to answer is:  Will the move help the child as it helps the adult? Will the child’s physical, emotional, and developmental needs be better met if they depart Massachusetts with their primary parent? Or will they suffer setbacks from having a less regular relationship with the non-custodial parent?

The interests of the non-custodial parent must also be considered. They retain the right to a meaningful relationship with their child, even if they are separated by distance. The court will take this factor into account, as well. It is not a controlling factor — the court will not base their decision solely on the non-custodial parent’s interests alone. But they will weigh it alongside other factors in the case.

In making their removal request, the primary parent must have a valid, genuine cause for removing their child — what the Yannas case calls a “good, sincere reason.” If the central motive is simply to “punish” or deprive the secondary parent of a relationship with their child, that would not be sufficient cause. The court must consider whether that intention exists and rule accordingly.

Typical Reasons for Removal

Parents requesting removal in Massachusetts divorce cases offer various justifications for relocating with their child. Courts consider these factors to determine whether they satisfy the prerequisites for the first prong of the real advantage test.

Some of the most common incentives that arise in removal requests in Massachusetts divorce litigation include the following.

Financial Benefit

The petitioner may present cause showing that their financial security will improve if they're allowed to leave the Commonwealth with their child. This is often the strongest argument in favor of renewal, especially if the parent has lined up employment or income in another state.

But other financial factors are taken into account, as well. These may include travel expenses for the child if they must fly to visit with the secondary parent.

Spousal Financial Benefit

If the primary parent has remarried, the court may consider their spouse’s employment opportunities in determining real advantage. When the spouse moves to accept a better position or has a job that requires frequent relocation, it may be a satisfactory rationale for real advantage. However, the presiding court may inquire as to whether the spouse had a legitimate chance for equally gainful employment closer to home.

Family, Social, or Emotional Support Networks

The primary custodial parent may cite the existence of a personal support network in the place they intend to move. This network may consist of relatives, friends, or other avenues of support. Similarly, the parent may cite the lack of such a support system for them in Massachusetts as the reason for their move. Either argument may play a part in determining real advantage.

If these or other factors satisfy the requirements of a "good, sincere reason," the process moves on to the second step. If, in the court's view, the primary parent does not establish an acceptable, real advantage for removal of the child, the inquiry concludes, and the request is denied or returned for revision.

The Child’s Best Interests

Given that the first step in the real advantage test is passed, the court then moves on to consideration of what is best for the child in question. The questions are very thoroughly and deliberately posed, since they are ostensibly the most important questions in the real advantage test.

Some of the factors the court may consider include the following.

The Child’s Preference

If the child has chosen in the matter, the court will consider their choice. A crucial concern in this regard is whether the child made the decision under their own will or whether they have been pressured by either parent to make their choice.

The Child’s Roots

Removal from close friends and family can adversely affect a child’s wellbeing. As such, their ties to the area are important to consider. The court will evaluate the strength and amount of the child’s social and familial connections to Massachusetts and whether being away from them will be harmful.

The Child’s Relationship with the Non-Removing Parent

This is a very significant aspect of removal requests in Massachusetts divorce cases. Since the child will spend far less time with the non-removing parent, the court must decide how it will impact the relationship between the two.

Distance

The court may also consider the distance that the removing parent is moving. There is a substantial difference between relocating to another New England state and the West Coast. The court may wonder whether the child’s long-distance travel between their respective parents’ homes may be too exhausting or stressful.

Non-Custodial Parent’s Interests

Finally, the concerns of the non-custodial parent remaining in Massachusetts will be addressed. The court recognizes that their contact with their child will be greatly reduced if removal is allowed. The court will examine whether the visitation agreements reached will fulfill the non-custodial parent’s ability to maintain “meaningful and ongoing contact” with the child.

Findings regarding the non-custodial parent's interests are not controlling, either — the court's decision will not be rendered exclusively because of this factor. But again, it will be assessed in conjunction with the other stages of the real advantage test.

The Final Decision

After the hearing closes, the court will contemplate the reasons presented and competing interests of the request and render their decision to approve or deny the removal of the child from Massachusetts. The requesting parent must meet the burden of assurance that the move will benefit both themselves and their child. The decision may be appealed by either party.

If you have questions about the removal request process, contact the attorneys at Mavrides Law so we can help.

By: Julia Rodgers, Esq.

Julia Rodgers is a divorce attorney with Mavrides Law, in Boston, Massachusetts.

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