We live in mobile society where it is common for a family to re-locate from one state to another, across the country, or even to a different country with ease. Moves become much more difficult and complex in a family that has experienced a divorce, or where the parents do not reside in the same household. When one parent seeks to remove the child from the Commonwealth of Massachusetts to another area of the United States or even to another country, and where the other parent does not agree with the move, the Probate and Family Courts of the Commonwealth must get involved. The parent seeking to move with the child must file a “removal action” with the appropriate division of the Probate and Family Court.
Massachusetts General Law Chapter 208, Section 30 directly addresses removal of children from the Commonwealth. It states that if a minor child who is a native of or has resided in Massachusetts and whose custody and maintenance is under the jurisdiction of the Probate Court, the child shall not be removed from the Commonwealth without the consent of both parents. Further, the issue of removal has been fairly well litigated in Massachusetts case law. Up until recently, there was only one standard to be applied when considering the issue of removal. That standard was found in the case of Yannas vs. Frondistou-Yannis, 395 Mass 704 (1985). However, in 2006, the Court added another standard for removal cases in Mason vs. Coleman, 447 Mass 177 (2006). The Mason case made it clear that in Massachusetts the label you apply to custody really matters if removal becomes an issue in the future. In effect, the Mason case made the best interest of the child the only standard to be applied in cases where the parties had shared legal and shared physical custody of a child. Back in 1985, the Yannis Court considered a matter where the parents had shared legal custody but the mother had physical custody of the children. The Court stated that the test for removal is two pronged. The first prong is the “real advantage test”. The second prong applies the “best interest of the child” standard. If the parent could show a good, sincere motivation for the move, then the Court could consider whether the move would be in the best interest of the child. A good sincere reason to move could be that the custodial parent would be benefited emotionally, economically, socially, and/or have better access to family. The reason for the move could not be to deprive the noncustodial parent of visitation. If a Judge found a good sincere reason to move, then he or she would consider if the move was in the best interest of the child. The best interest calculus includes the effect of the move on the relationship of the child with the other parent and siblings, extended family, education, and general welfare. Yannis test was applied in all removal cases until 2006 when the Mason case was decided.
Read more of this Massachusetts Divorce Removal Article by Attorney Jodie A. Caruolo
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