We live in a mobile society where it is common for a family to relocate from one state to another, across the country, or even to a different country. Moves become much more difficult and complex in a family that has experienced a divorce, or where the parents do not reside in the same household. When one parent seeks to remove the child from the Commonwealth of Massachusetts to another area of the United States or even to another country, and where the other parent does not agree with the move, the Probate and Family Courts must get involved.
Massachusetts General Law Chapter 208, § 30 addresses the removal of children. The statute deals with children of divorce, but its principles have been applied to non-marital children by the courts.
The court has developed standards by which it measures whether "good cause" has been shown to justify allowing a removal request. The standards vary upon the custodial arrangement and the parenting plan between the parents.
In a 1985 case, Yannis v Frondistou-Yannis, the court considered a matter where the parents had shared legal custody, but the mother had physical custody of the children. The court stated that the test for removal is two-pronged. The first prong is the "real advantage test." The second prong applies the "best interest of the child" standard. If the parent could show a good, sincere motivation for the move, then the court could consider whether the move would be in the best interests of the child. A good sincere reason to move could be that the custodial parent would be benefited emotionally, economically, socially, and or have better access to family. The reason for the move could not be to deprive the non-custodial parent of visitation. If the judge found a good sincere reason to move, then the next step would be to consider if the move was in the best interest of the child. The best interest calculus includes the effect of the move on the relationship of the child with the other parent and siblings, extended family, education, and general welfare.
The Yannis test was applied in all removal cases until 2006 when the Coleman v. Mason case was decided.
The test in the Mason case applies only to cases where the parties have shared legal and shared physical custody. The only test that applies is the "best interest test."
The Mason case was very careful to define the nature of "true" joint custody. The court stated that " shared legal custody carries a mutual responsibility and involvement by both parents in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development." Shared physical custody carries with it a substantial obligation for cooperation between the parents. "Such an arrangement, by its nature, involves shared commitment to coordinate extensively a variety of the details of everyday life." The court pointed out that it is incumbent on a parent who has been awarded joint physical custody to recognize that the viability of the endeavor is dependent on his or her ability and willingness to subordinate personal preferences to make the relationship work. The court took pains to emphasize that in a true shared legal and physical custody arrangement, neither parent is elevated above the other nor the needs of either parent will be put above the other when making considerations in removal cases. The emphasis in a Mason type case is to " favor protection of the child's relationships with both parents because both are, in a real sense, primary to the child's development."
In effect, the Mason case made the task of drafting custody provisions, negotiating settlements, and trying cases more "label conscious" than in previous years.
No matter the custodial arrangement, removal cases are often emotionally charged, and if opposed, often require a trial to be decided. Parents must be prepared to present very specific evidence often through the testimony of third parties and experts, in support of or in opposition to the request for removal.
No matter which side of the removal action you are on, you should consult with a family law attorney as early in the process as possible to gain an understanding of your rights and your responsibilities.