Massachusetts law favors parents who have been awarded primary or sole physical custody in cases where such parents request to remove or relocate their children to a new state outside of Massachusetts.
When the parent seeking relocation has sole physical custody, a court applies the so-called “real advantage test”, which is drawn from the case of Ioannis v. Yanas, whereby the Court gives substantial weight to the custodial parent’s desire to move, so long as the move constitutes a “real advantage” to that parent.
Ultimately, a Court must still decide if a proposed move is in the best interests of a child, but under Yanas, the “real advantage” to the custodial parent is a major factor, based on the theory that the interests of that child are “so interwoven with the well-being of the custodial parent” that “the determination of the child’s best interest requires that the interests of the custodial parent be taken into account”
In contrast, if the parents share physical custody of the child, the “real advantage” test is omitted, and the Court must decide whether the move is in the best interests of the child without giving special consideration to the custodial parent’s interests. This is known as the Mason test, where the standard arises out of the case of Mason v. Coleman.
In a recent case, Miller v. Miller, the question before the Court was whether the lower court judge erred in applying the “real advantage” test to the mother’s request to relocate when the parties divided parenting time 60/40 in favor of the mother. The father argued that the 60/40 split amounted to shared custody, meaning the Mason test should have applied. The mother favored the judge’s finding, which was that the mother’s “functional” duties made her the children’s primary custodian.
In Miller, the Court reaffirmed recent decisions indicating that when custody is ambiguous, a court “must first perform a functional analysis, which may require a factual inquiry, regarding the parties’ respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard”.
If the parenting duties of the party seeking relocation are consistent with that of sole physical custody, then the court should apply the “real advantage” test to the party’s removal request. If the parenting duties appear to be shared, the court should proceed directly to the best interest of the child analysis.
Many parenting plans no longer fit into the neat box of sole physical custody vs. shared physical custody. However, in cases in which primary custodial duties are clearly assigned to one parent, the court held that the “real advantage” test provides helpful guidance on whether parties should seek (or oppose) relocation from the court at all.
Relocation cases are incredibly difficult for courts to decide because either outcome often includes a devastating blow to one parent. If a primary parent is seeking a move in order to take a better job, live with a new spouse, or move closer to extended family, a court’s denial of their relocation request is a bitter pill to swallow following a long and extraordinarily expensive trial process. The outcome is hardly better for non-moving parents, for whom a loss often means a huge reduction in parenting time.
Obviously, every case is different, and probate court judges need broad discretion to determine what is best in each removal case.
To help understand whether a request to relocate might be allowed or denied, contact the Law Offices of Renee Lazar by phone 978-844-4095 to schedule a FREE one hour no obligation consultation.