Child Removal: Explained

Child holding hand with parent

When one parent wishes to move out of state with the parties’ minor children, custodial issues may arise. Massachusetts laws governing child removal prevent divorced parents from removing their child from the state without consent. Removal is when a parent permanently leaves the state with the child. The applicable Massachusetts statute on child removal can be found at G.L. c.208 s.30, which provides:

A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purposes of this and the two preceding sections.

This law applies to parents who were once married in addition to parents who were never married but have dealt with paternity or custody actions.

For the statute to come into effect:

  1. The child must be a Massachusetts native OR have resided in Massachusetts for a minimum of five years.
  2. The Probate Court must have jurisdiction over the child’s custody and maintenance. (The child is the subject of a court action or order.)
  3. There must be a dispute over the removal of the child from Massachusetts.

To remove the child from the Commonwealth, consent plays a critical role in the legal analysis. When a child is of a suitable age to consent, the parent seeking removal must have their consent to move. Alternatively, if the child is not of consenting age, the parent seeking removal must either (a) receive consent from the other parent or (b) have a court order. The statute does not specify an age of consent, leaving it to the Court’s discretion. Therefore, the Probate Court becomes involved when the issue of removal is in dispute, either between the child and parent or between co-parents. Withholding consent will necessitate litigation.

Due to their fact-specific nature, removal cases are very complex and are often difficult to predict the outcome of. As a result, many of these cases require the assistance of a Guardian ad litem and/or a trial. However, no matter what facts are at play, the best interest of the child will always be at the forefront of any decision. There are many legitimate reasons a parent seeks to move to another state or country. This includes financial motives like moving for work and social motives like moving closer to family members. The Court will consider these good faith reasons in addition to other factors by applying the “real advantage/good and sincere reason for the move” standard. The ‘real advantage’ standard was outlined in the landmark case, Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985) and considers factors such as the following:

  • Whether the child's quality of life will improve from the move. This may naturally flow from a positive change in the custodial parent’s quality of life.
  • The potential adverse effect of the child’s relationship to the noncustodial parent.
  • The degree to which the decision will impact the child’s physical, emotional, or developmental wellbeing.

The best interests of the child are so interwoven with the custodial parent’s well-being that the parent’s interests must also be factored into the analysis, as a matter of policy. For example, if one parent wishes to move for a higher paying job in a location with an excellent school district, this positively impacts the child’s livelihood as well. However, even if a parent has an incredibly valid reason to move, this is not a controlling factor that automatically guarantees the removal be granted.

Before moving out of state with your child, it is advisable to speak with an attorney to ensure no issues with custody arrangements arise. If the other side is in agreement with the move, ensure that their consent is captured in a written document in your possession. Contact our office to schedule an appointment to consult with one of our attorneys about a pending child removal action. To learn more about how child custody, in general, is decided, read this recent article.

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