I recently participated with a client in an uncontested divorce hearing where the Probate and Family Court Judge presiding over the matter said something I have not heard many judges say at an uncontested divorce hearing. Addressing both parents, the Judge called attention to the removal language contained in the divorce agreement, making specific note to the residential parent. The Judge pointed out that while the language contained in the agreement only referenced removal of the children out of the Commonwealth, if the residential parent wanted to relocate with the children within the Commonwealth – but at such a distance that would impact the current parenting schedule – the residential parent may need to seek the Court’s permission to do so before she moved. While most divorce agreements contain specific language prohibiting out-of-state removal, very rarely do separation agreements provide similar restrictions for in-state relocation of a great distance, yet Massachusetts caselaw does restrict in-state “removal.” I was pleased that the Judge in this case called attention to this issue so that both parents were reminded of their obligations post-divorce with respect to the other parent’s relationship and parenting time with the children.
M.G.L. c. 208 section 30 prohibits the removal of minor children from the Commonwealth who are natives of or have resided in the Commonwealth for five years or more, except with the consent of both parents or by order of the Court “upon cause shown.” The burden of proving “cause shown” is on the parent seeking to remove the children from the Commonwealth. How “cause shown” is proven by the parent seeking removal will depend upon whether there is a true shared physical custodial arrangement or whether one parent could be considered the primary custodial parent. If the Court awards shared physical custody, the removal analysis proceeds under the standard set forth in Mason v. Coleman, 447 Mass. 177 (2006) – the best interest of the children. If the Court awards one parent physical custody, the removal analysis proceeds under the standard in Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985) – a two-prong test of (1) the real advantage test and (2) the best interest of the children. When determining whether a parent has primary physical custody or if the parties share physical custody, the court will look at the actual parenting plan in practice, not just the label set forth in the judgment or agreement. When a parent seeks to remove the children as part of a divorce – so there is no judgment or final agreement in place to dictate the custodial arrangement – the court must first determine what physical custodial arrangement is in the best interests of the children before then looking at the issue of removal.
The court will apply out-of-state removal principles to a parent’s request to relocate with the children within the Commonwealth in cases where the relocation would involve significant disruption to parenting time and the parents cannot agree. See Altomare v. Altomare, 77 Mass.App.Ct. 601 (2010). Out-of-state removal principals are applied to in-state moves in cases where the relocation would significantly disrupt the noncustodial parent’s parenting time and relationship with the children. Examples of an in-state removal that would trigger the out-of-state removal standard include moves that involve significant time for travel, such as removal from Lenox to the Cape or from Amesbury to Martha’s Vineyard. There is no strict mile limit, but generally, a distance that appreciably impacts the parenting schedule and the relationship between the parent and the children. Depending upon the parenting schedule, it could mean a relocation of even an hour or two away. The reasoning behind this restriction on a parent’s ability to relocate with the children within the Commonwealth is that the impact to parenting time and the relationship with the children of that in-state relocation resembles the impact when a parent seeks to remove the children outside of the Commonwealth.
While in-state removal principles limit a parent’s ability to relocate with the children, nothing in the statute nor the case law prohibits a parent’s ability to relocate without the children. There is no restriction placed on a parent themself from moving wherever they desire. However, it is important for a parent seeking to relocate with the children to keep restrictions in mind. If a parent is seeking to remove the children from the Commonwealth or relocate within the Commonwealth where the relocation would involve significant disruption to parenting time, it is important that the moving parent seek the other parent’s or the Court’s permission to do so BEFORE moving.
For more information regarding relocating with your children during or after a divorce, please check out the Relocating With Your Children Amid Divorce webinar on the Burns & Levinson Divorce Law Monitor blog, hosted by Robin M. Lynch Nardone, Esquire, and Francine Gardikas, Esquire.
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