Child Removal-The Legal Standard

You have custody of your child and you want to move out of state with your children.  However, you must either have the express written permission of your ex-spouse or you must file an action with the Court seeking its permission to move.  In that case, how does the Court decide?

In deciding whether a custodial parent may remove a child from the Commonwealth, as in other custody issues, the Court is ultimately concerned with the best interest of the Children.  With specific regard to a removal question, the “real advantage” test is applied in determining the child’s best interests.  Yannas v. Frondistrou-Yannas, 395 Mass. 704, 710-712 (1985) (“Yannas”).  Application of the real advantage test first requires the judge to decide whether the custodial parent has established a “good, sincere reason” for the move, i.e., a “real advantage”.  If the custodial parent meets the burden of establishing such a “real advantage”, then the judge should consider the effect of removal on the child, the interests of and relative advantages to the custodial parent in moving (including, “the soundness of the reason for moving, and the presence or absence of a motive to deprive the non-custodial parent of reasonable visitation”), and the interests of the non-custodial parent.

When deciding to file an action to be allowed to move from Massachusetts with your children (including post-divorce) it will serve you to familiarize yourself with the legal standard set forth in the Yannas case cited above.  You may well consider planning in advance as to how you can show the Court why the move is:  1) In the best interest of the children; 2) Is a real advantage to you and the children; 3) Devoid of motive to deprive your ex-spouse of contact with the children.

As a result, you should consider visiting the school your children will attend, meeting with their likely teachers, and researching the schools performance rating.  You should establish good and sincere reasons for supporting the move and prepare a proposed plan of how your ex-spouse will have time with the children (i.e., extended summer and school vacation time).