Anyone will tell you that the best thing for a child is to have both parents actively involved in their lives. It’s a common sense statement for those who have had the benefit of both parents being actively involved in their lives, as well as for those who have not.
Unfortunately, the ideal of two parents being equally involved in their child’s life after a divorce or break-up of the family unit is not always realistic. It can be unrealistic for a number of reasons, but the most difficult situation I see on a regular basis is where one parent needs or wants to move out of the state for financial reasons, like a new job, or to be with a new spouse.
These types of cases are called removal cases, and they are some of the most difficult cases for families as well as family law attorneys. The removal statute M.G.L. c.208 s. 30 states that:
“A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purposes of this and the two preceding sections.”
The statute makes it unlawful to remove a child from Massachusetts without the consent of the other parent or by order of the court. Although the statute does not specifically address removal where the parents were never married those children are afforded the same protection as children of married parents and therefore subject to the same rules regarding removal.
They key to analyzing the likelihood of a parent’s request to remove a child from the Commonwealth hinges on the meaning of “upon cause shown”. The courts have interpreted this language to mean that there must be a real advantage to the requested move and that it be in the child’s best interest. The type of custody you have will also dictate how this matter is decided.
Removal – Custodial Parent
Where one parent has primary physical custody of the child the courts will do a two-part analysis in deciding issues of removal. The first part of the test is looking to see whether the custodial parent is requesting a move for a good and sincere reason, and whether or not that move will result in a real advantage to the custodial parent. The second part of the test, if the first part is satisfied is to decide if the move is in the child’s best interest.
Removal – Joint Custody
For parents who share joint physical custody of their child the analysis is only whether or not the move is in the child’s best interest. While on its face this analysis appears to be easier it is actually a much harder standard to meet. In this scenario the court gives much more deference to the non-requesting parent’s interest in maintaining their relationship with their child, and much less weight is given to the advantage that would accrue from the move to the parent who is requesting removal.
Removal – Unwed Parents
As I mentioned the removal analysis is based on what type of custody you have, however, one additional factor that unwed parents must be aware of is that unless you have established paternity then legally the mother is the only one who has any custody of the child and can remove the child from the state without your permission.
Whether you are an unwed parent of a child, divorced or still technically married you should not remove your child from the Commonwealth without first getting permission from the other parent. Even if it is technically legal, removing your child without permission could result in an adverse custody decision later on.
Removal cases are difficult cases to win and unlike other family law cases they go to trial frequently. If you are considering a move out of state or seeking to prevent a child from being removed you should consult a family law attorney who can review the facts of your case and help you start planning how you are going to handle your case.