Removal Cases – A Trial Situation

Hi there,

I bet that most divorce lawyers and Probate Judges will tell you that among the toughest cases they see are so called removal cases – where one parent wants to leave the state with the children, leaving the other parent behind.  It is now also clear that moving across the state so that parenting is disrupted can also be grounds for application of the removal laws.

If the departing parent is going to a neighboring state this may be something that can be worked out without a trial and a Guardian ad Litem.  However a move beyond a 2 or 3 hour drive can be disastrous to a parent/child relationship.

The reasons for asking to leave (and you must get either written permission from the other parent or a court order allowing the move) can be very valid and necessary as well, a job, a new spouse, familial support all of these can be critical to the moving parent.

Massachusetts handles removal cases in 2 ways based on what the parenting situation is. If the moving parent is the physical custodian, meaning that  the children’s primary residence is with him or her then the standard is different from the standard when the parties share physical custody

There are 4 leading cases that discuss removal under Massachusetts law: Yannas v Frondistou-Yannas, 395 Mass. 704 (1985): Mason v. Coleman 447 Mass.177 (2006): Katzman vs Healey, (decided September 7, 2010) and Altomare vs. Altomare, (September 8, 2010).

If the parent seeking removal is the physical custodian then there is a two prong test.  First, the Judge must decide that there is a "real advantage" in the move for the parent seeking it.  This means also that the removing parent NOT be found to be seeking removal just to spite the other parent or make the relationship with the children difficult.  If the court finds there is NO real advantage then the case is over, however this is something generally only reached after trial.  If there is a real advantage then the test becomes the best interest of the children with a great deal of weight given to the fact that their welfare is entwined with that of the custodial parent.  Thus, the court has to consider if the mother has a real advantage most likely the kids in her care will too. 

If the parents have true shared physical custody: not just a recitation in an agreement that the plan is shared physical but an approximately equal division of the time; the standard is much tougher for the parent who is seeking to go.  The real advantage test is gone and both parents have equal rights and responsibilities so the "best interests of the child" focus is on just that.  The court may very well may consider the kid’s need for continuity of community to override one parent’s desire to move with the child.

All of these are issues if they arise that can frequently make a trial necessary.  They are also possibilities to consider prior to entering a divorce agreement as well.

Best,

Nancy