This summer I have had the benefit of a hard working and talented intern in my office.  Liz Sexton has completed her first year at the New England School of Law.  She jumped at the opportunity to write a blog entry for my site and I am grateful for her first entry below.

Deciding with whom a child will live is a difficult decision for both courts and parents.  However, it is even more challenging when the custodial parent wants to move with the child out of the Commonwealth.  Determining what is in the best interests of the child is paramount to a court’s decision allowing a minor child to depart with the custodial parent to another state.  What does the court consider in deciding to grant the removal of a minor child?

Massachusetts General Law c. 208, section 30 states that a minor child cannot be removed without the consent of both parents, “unless the court upon cause shown otherwise orders.”   Case law in the area of child custody and removal has grown since Yannas in 1985, which identified the “real advantage standard” in determining what is in the best interests of a child.

The custodial parent must establish a good, sincere reason for wanting to move from Massachusetts.  Reasons usually include an improved financial situation, an opportunity for employment, and an increased sense of personal security.  A custodial parent who seeks to move to diminish the relationship between the child and the non-custodial parent or other relatives, may fall short of establishing a good, sincere reason for the move.

Once a good, sincere reason is established, none of the relevant factors in deciding the best interests of the child become controlling but must be looked at collectively. The factors considered by the court include the interests of the noncustodial parent, the affect of his or her relationship with the child, the cost of visiting the child who may live far away, the affect on the noncustodial parents role in the child’s life, and the impact of the move on the child’s emotional, physical and developmental needs.

The judge has broad discretion in determining if removal is appropriate, which means that the judge determines whether the child’s life will be improved by the move and the adverse effects on the child’s quality of life because of the move. In the end, it is the judge’s decision, after objectively examining all relevant factors, to determine whether removal is appropriate.

Couples and families that are facing divorce are often full of questions about what their reconstituted family will look like in the future. All those involved are concerned with how the courts and the law will impact the child custody and child support issues they face.

When a judge makes decisions regarding the custody of children in a divorce, she will apply the standard of what will promote the child’s best interest. Massachusetts General Law c. 208, section 31 states that “the happiness and welfare of the children shall determine their custody.” Appellate Court decisions have confirmed that judges have broad discretion in these matters. A variety of factors may be considered by a judge when formulating decisions regarding custody including the age, sex and developmental stage of the child, each parent’s home environment, and the judge’s own observations of the parents.

Judges may make determinations regarding legal custody that provides authority for making the major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development. The judge will also make a determination of physical custody that provides for where the child will reside and which parent will have supervision over the child.

Massachusetts General Law c. 208, section 28 provides for child support and states that there shall be a rebuttable presumption that the amount of the order, which would result from the application of the guidelines, is the appropriate amount of child support to be ordered. The Chief Justice for Administration and Management of the Trial Court puts forth the guidelines referred to in c. 208, section 28.

The Family Court also has a standing order that requires parents who are party to a divorce action to participate in a mandatory parenting class within sixty days of the petition or complaint for divorce being filed. Failure to comply with this mandatory deadline may result in penalties assessed by the court.

Mandatory deadlines, complex guidelines, and broad judicial discretion in matters of physical and legal custody can all provide heightened levels of stress for a couple going through one of the most traumatic processes in their lives.

Mediation and Collaborative Law both provide the opportunity for divorcing couples to reconstitute their family in a confidential, cost effective and more convenient process. In either process, the pressure of some of the arbitrary deadlines can be removed. While the child support guidelines will have to be followed regardless of the process chosen, in either mediation or Collaborative Law, they can be explained and analyzed in a thoughtful and less stressful environment.

Finally, nothing is more important to a loving parent than the legal and physical custody of their child. Providing an opportunity to fully explore the best interests of the child in the opinion of the child’s parents is paramount. Mediation and the Collaborative Law process provide the best environments in which these decisions can be made.

For more information on how mediation or Collaborative Law can help your family with issues of child custody and child support, contact my office.