The Challenges of Removal

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.

 

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