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Burden for child removal case in Massachusetts

Submitted by CharlieM on Fri, 02/18/2011 - 11:57
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I have primary physical custody of my three year old boy and I live in Massachusetts. My ex husband also lives in MA. I have to move to New York for a new job and obviously want to take my son with me. Will it be easier for me to do this because I already have physical custody? My husband currently takes our son every other week end. Although some times he doesn't do it. Thanks.

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Removal of child from Massachusetts

Submitted by The Editor on Fri, 02/18/2011 - 13:31.

Yes, Massachusetts family courts handle removal cases differently depending on the custody arrangement that is put in place after a divorce. 

In cases like yours, where the parent seeking removal is the physical custodian, the courts will apply a two prong test.  First, the judge will try to determine if there is some substantial, "real advantage" to your move out of state.  In other words, you have to have a good reason to seek removal and not be doing it simply to annoy or damage the child's relationship with the other parent.  If you don't meet that burden, the request will be denied.  If you do satisfy that test, the court will then apply the ubiquitous "best interest of the child" test.  Generally speaking, if there is some "real advantage" for the custodial parent gained by moving out of state, then that advantage will also apply to the child and weigh heavily on the issue of the child's best interests.

  In other cases, where the parents have shared physical custody and actually spend a nearly equal amount of time with the child, the court will apply a much more difficult standard.  Rather than focusing on the "real advantage" gained by the moving parent and whether that advantage will benefit the child as well, the court will consider whether a disruption in the continuity of the relationship with a parent who has, essentially, shared all aspects of parenting, can possibly be in the best interest of the child.  Often, in this situation, courts find that the continuity of parenting is more important that one parent's desire to move.  In either case, when contemplating removal of a child, you should consider discussing the matter with a MA divorce and family law attorney.  Good luck.

 

Removal of Minor Child from Commonwealth

Submitted by raoanthony on Tue, 03/29/2011 - 16:05.

I am an experienced Massachusetts Family Law Attorney, who just went out on my own to provide excellent legal representation at a reasonable cost. The short answer is you have a "good" chance of being allowed to remove the child to New York. The Court will do a "good faith" test to determine that you are taking the move in "good faith" and not moving to interfere with the relationship with the father and the child. Moving for a job is a common reason, and I believe you would have a good chance to be awarded permission to remove. Feel free to email me to discuss further, and the possibility of affordable representation.

real advantage test

Submitted by allan@baronlawm... on Wed, 03/30/2011 - 11:47.

Hi. The court will use a "real advantage" test and "the best interest of the child" test

It will be your burden to prove this. It is always best to work with the father first to see what his position is.

If you are unable to have a good conversation I would suggestion mediation before getting into the court system.

Think about ways to give the father extra time or continue to foster a good relationship with the child.
I would suggest you get a paid consult from an attorney as first steps as this is a delicate matter and should be handles with the aid of an experienced attorney.

Allan@Baronlawmediation.com
www.baronlawmediation.com

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