Do you have a final divorce or separation agreement from Massachusetts and now want to relocate with your child(ren), in or out of state? Do you have an ex-spouse who is threatening to relocate with your child(ren), and you want to stop the move? In Massachusetts, the law of “removal” governs whether a parent can relocate a child to another state (or a long distance away, in state).
If you were divorced in Massachusetts and want to relocate in state with your child(ren), the court will generally allow such a relocation so long as it does not have a material negative impact on the divorce or separation agreement. If the distance created by the move will have a material negative impact on your divorce or separation agreement, then you may need to get the consent from the other parent or petition the court to allow you to move. M.G.L. c208 § 30.
If you were divorced or getting divorced in Massachusetts, or if you are the parent of children out of wedlock and you wish to remove your children permanently from Massachusetts, this will be tougher than moving within the state. If your child(ren) is old enough to give his/her consent to the relocation, and your child(ren) is from Massachusetts or lived in Massachusetts for five (5) years and is still under the Family and Probate Court’s jurisdiction, then you will be granted permission to relocate as long as your child(ren) gives his/her consent. M.G.L. c208 § 30. If your child(ren) is under age to give his/her consent, then you will need either to get written consent from the other parent or petition the court to allow for removal. M.G.L. c208 § 30.
Consent From Both Parents:
The easiest way to remove your children to another state is to obtain written consent from your ex-spouse (or other parent) and present it to the court for approval. Absent obtaining such consent, you must obtain a court order of removal.
Consent From the Courts:
If you are unable to get written consent from your ex-spouse, and your child(ren) is not old enough to give his/her consent, you can petition the court to remove the children from Massachusetts. How a court will determine whether to approve a removal request will depend on what type of child custody arrangement you have established in your divorce judgment or separation agreement.
In Massachusetts, courts have developed two different tests respecting whether to allow for the removal of a child(ren) from Massachusetts, depending on the type of child custody arrangement you have.
Yannas Test:
The court will apply the “Yannas Test” when considering a removal case in which one parent has been awarded physical custody of the child(ren). The “Yannas Test” uses a two-part test. First, the court will look to see if there is a demonstrated “real advantage” for the removal. Yannas v Frondistou-Yannas, 395 Mass 704 (1985). This “real advantage” means that there must be a good reason for removal, such as a job change that would greatly improve the ability to support the child(ren). Under the second part of the test, the court will look to see what is in the “best interest of the child(ren).” When determining what is in the “best interest of the child(ren),” the court will not only look to what is in the child(ren)’s best interest, but will also consider the interest of the parent who wants to move out of state. The court will look at both what are the advantages created by the move as well as what are the disadvantages to the parent wanting to relocate if removal is denied. This gives the parent seeking to relocate a big advantage because the court considers how the move will not only benefit the child(ren), but also considers the impact to the parent wanting to move.
In Rosenwasser v Rosenwasser, 89 Mass. App. Ct. 577, the court further extrapolated on the notion and stated that in addition to taking a look at the benefits to the custodial parent wanting to relocate, the court also needs to take into account what the hardships might be on the custodial parent if they are not allowed to relocate and are forced to remain in Massachusetts. “The advantages and disadvantages of moving or not moving to the parent who has sole physical custody are significant factors in the “best interest of the child(ren)) equation.” Rosenwasser at 587, citing Katzman v. Healy, 77 Mass. App. Ct. 589 at 595-596 (2010).
Mason Test:
When the parents have been awarded joint physical custody of the child(ren), the court will apply the “Mason Test”. The “Mason Test” only requires that the court takes into consideration the “best interest of the children” when deciding whether to grant a removal request. The “Mason Test” does not allow the court to weigh the advantages of the parent who wants to relocate or hardships if the parent seeking to relocate is forced to stay. Mason v. Coleman, 447 Mass 177 (2006).