Custody arrangements often necessitate parents living in relatively close proximity to each other to facilitate the back-and-forth nature of the physical custody schedule. However, personal situations can change, and a parent may find that he or she has to move for any number of reasons.
Massachusetts refers to out-of-commonwealth moves as “removal” and it requires the consent of the other parent or the consent of the court (you cannot get permission if you’ve already moved). If consent from the other parent is not given, the parent seeking to relocate must be prepared to present his or her case in court. Ask any lawyer, and he or she will tell you that parents seeking to relocate their children out-of-state can be among the most challenging, expensive, and unpredictable family law cases to face. Read some recent appellate opinions entered in 2015 and 2016 on the complexities of “removal” here.
Sole Physical Custody vs. Shared Physical Custody
In cases where the party seeking removal is the sole physical custodian of the child, the court considers the request under a two-prong test that originated in Yannas v. Frondistou-Yannas and was recently observed in English v. English (2015): the “real advantage test” and the “best interest of the child” standard.
The “real advantage” test is based on the idea that a child’s quality and style of life are provided by the custodial parent and that, although the best interest of the child is of utmost importance, realizing that the well-being of the child is so interwoven into the well-being of the custodial parent, the determination of the best interest of the child requires the consideration of the interests of the custodial parent. In other words, any benefit received from relocation will (theoretically) be passed down to the child.
In the English opinion, the Appeals Court noted that when it comes to shared physical custody, a different standard applies, as judges would be less likely to elevate one parent’s interests over that of the other’s as both have equal rights and responsibilities with respect to the children. As a result of diminishing the “real advantage” portion of the Yannas test for shared custody arrangements, courts seem increasingly less inclined to grant requests by custodial parents to relocate out of state. Additionally, an increase in shared physical custody arrangements in recent years has resulted in an uptick of divorce arrangements that limit the number of miles a party may move following the divorce.
Considering the nebulous nature of these tests, it’s impossible to pinpoint a single factor that can determine whether or not a removal request is granted. However, three important factors can impact relocation cases decided under the “best interests” standard:
- A parent presenting evidence proving that he or she deserves sole physical custody for reasons other than the move.
- The importance of the move itself. If the reason for the move proves compelling – an involuntary job transfer for the parent providing the majority of the financial support, for example, judges will be less likely to “punish” the moving parent with reduced parenting time.
- The impact of the move on the overall parenting schedule – courts tend to favor parents who try to limit the impact of the move on the children and the other party.
Acting Unilaterally – A Cautionary Tale
A recent decision by the Appeals Court illustrates the impact of relocating without input from the court. In Zahoruiko v. Regal (2016), the parties were divorced in 2010 pursuant to a separation agreement that specifically required them to reside within 30 miles of each other within central Massachusetts and they shared a custody schedule that had them alternating responsibility for the children on weekdays and weekends. Despite this, the father moved more than 45 road miles away to Connecticut without consulting with the mother and then refused to discuss or consider a revised parenting plan following the move.
About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.