Get advice from family law attorney before moving with kids.

What will your new normal be after the restrictions lift around COVID? Thinking of skipping town, leaving your roots, taking your kids away to another part of the country or even a different part of Massachusetts? Not so fast, unless you have the written assent of the other parent. Family law attorneys can give you advice on helping you make the next move.

With kids, a parent either has sole physical custody or joint physical custody. Under the law, in either custodial situation, you need the other parent’s written permission to pack up and move away from where you are living now with the children. There is no such law if a parent was to leave on their own, but that parent has to leave without the children.

The process of packing up and moving away is called removal. It is one of the hardest and most challenging issues that family law attorneys face. For the parents, it is time consuming and expensive since it is fact specific and almost always requires experts and a trial on the merits.

If you have sole physical custody of the kids…

If the party seeking removal is the sole physical custodian of the children, then the judge must consider the request under a two-prong test, called the real advantage test or the “Yannas” test. This is satisfied when the custodial parent shows “the soundness of [her] reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Yannas v. Frondistou-Yannas, 395 Mass. 704, 711 (1985).

In other words, Courts have allowed a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose. Abbott v. Virusso, 68 Mass. App. Ct. 326, 330-31 (2009).

If the custodial parent can show that to a court, the analysis does not end there.  Once the Court finds that the parent has satisfied the test and has shown that there is a real advantage to remove the child away, then the Court must then address whether the move is in the best interests of the child.  The fact that a real advantage exists remains important in the next stage but the best interests must be shown. Courts in Massachusetts have held that the interests of the children are intertwined with the interests of the custodial parent who wants to move.  To determine the best interests of the child, the judge looks to five specific factors “collectively.”

After these have been shown satisfactorily to the court, then the court issues a written judgment with findings allowing a parent to remove the children to the new state.

If you share joint physical custody of the kids…

If the party seeking removal share joint physical custody of the children, then the standard is different. In those cases, the moving party must show a judge that removal is in the “best interests” of the children taking into account all the circumstances and weighing a myriad of factors. Mason v. Coleman, 447 Mass.177(2006). This process is exceptionally difficult to prove to the satisfaction of the court because the parents share custodial duties and bonds with the children.

Even if you want to move within Massachusetts…

Massachusetts courts have not limited removal analysis to only moving out of state, but have expanded it to situations where the custodial parent seeks to remain in Massachusetts but move far away from their current residence.  “The purpose of the statute is to preserve the rights of the noncustodial parent and the child to maintain and develop their familial relationships, while balancing those rights with the right of the custodial parent to seek a better life for himself or herself in another State or country.” Altomare v. Altomare, 933 N.E.2d 170 (2010).

This does not apply to the adjacent town, rather it would apply to a location within Massachusetts that would significantly impact the current parenting time scheme.

Speak to an experienced family law attorney before making any permanent plans.