Massachusetts Child Removal

Can I Move Out of the State of Massachusetts with My Child?

Moving a minor child out of state is referred to by Massachusetts law as “removal” and, without agreement from the other parent, it is one of the hardest types of cases to win. Judges repeatedly refer to child relocation cases as some of the most difficult to decide as they must balance the advantages of moving out of state with the harm that may come from distancing a child from a nonmoving parent.

Removal Statute: The Massachusetts child removal statute, G.L.c. 208 Section 30, states that a child born in the Commonwealth or a child who has lived for five years or more in the Commonwealth, should not be removed without consent. There are three options for removal, (1) the child has reached a suitable age to be able to provide consent, (2) both parents have consented to removal or (3) the court orders the child can be removed from the state.

Based on this statute, the court looks at multiple factors to determine the outcome of child removal:

Is the Child of Suitable Age to Consent

Courts will take into consideration whether a child is capable of expressing their consent to be removed from Massachusetts. Although the statute declares that 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 court looks at other factors such as the current child custody arrangement and parenting time, the involvement of one parent versus the other, and the following legal standard formulated by the Massachusetts courts. 

Is there Cause to Remove the Child

If the parents in a Massachusetts Divorce cannot agree on the removal of the child, the parent seeking removal outside the state must demonstrate that the relocation is in the child’s best interests.

When considering the child(ren)’s best interests the court considers the following:

1. 1. The child’s preference – If the child has a preference, the court will consider this. A crucial concern is whether the child made the decision under their own will or whether they have been pressured by either parent to make their choice.

1. 1. 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.

1. 1. The child’s relationship with the non-removing parent – 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.

1. 1. Distance – 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.

In making their Massachusetts child removal request, the primary parent must have a valid, genuine cause for removing their child – what 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.

Is the Parent Requesting Removal the Primary Custodian

If the parent requesting removal has primary custody, meaning the child lives with them, then the court conducts a “real advantage” test.

If the parents share custody of the child(ren) equally, the “real advantage” test does not proceed. Instead, the court considers the request for removal strictly based on the best interests of the child(ren).

The real advantage test is also known as the Yannas Test because of the Massachusetts Supreme Judicial Court decision that established it, Yannas v. Frondistou-Yannas. 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(ren), the court may approve the move. The real advantage test has two prongs:

1. 1. Will the primary parent gain a real advantage in the move? And

1. 1. Is the move in the child’s best interests?

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 minor child’s quality of life stands a better chance if their primary parent is leading a satisfied and contented life. Conversely, the child’s quality of life quality can be compromised if the parent they live with is unhappy or resentful.

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.

Typical Reasons for Removal

Parents requesting removal in Massachusetts Divorce cases offer various justifications for relocating with their child(ren). The following is a list of commonly cited reasons for removal:

1. 1. Financial Benefit – The parent may present cause showing that their financial security will improve if they are allowed to leave the Commonwealth with their child. Strong arguments for this include if the parent has lined up employment or income in another state. Other financial factors are considered, including travel expenses for the child if they must fly to visit with the other parent.

1. 1. Spousal Financial Benefit – If the 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.

1. 1. Family, Social or Emotional Support Networks – The 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.

Non-Custodial Parent’s Interest

The concerns of the non-custodial parent remaining in Massachusetts will be addressed. The court recognizes that their contact with their child(ren) 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– the court’s will not decide the issue solely on this factor. 

Our family law attorneys can help you understand your rights regarding moving a child out of Massachusetts.