Physical custody of a child is always a priority concern when a family faces divorce. In today's weak job market, there is a growing concern for what happens when a parent must relocate for a job. The current transient work environment affects quality of life and even basic sustainability for millions of families, but it is especially difficult for divorced parents. The current economy can demand relocation within the Commonwealth as well as moving out of state, and such relocation has significant implications on child custody.
Massachusetts General Law commonly refers to moving out of state with one's child as "removal," and though there are no legal restrictions on moving as an individual, the situation becomes more complicated when children are involved. The act of "removal" of a minor child of divorced parents - who is considered a native of Massachusetts by residing in the state for five or more years - is prohibited without either an agreement of both parents or an order of the court. The purpose of this removal law is to protect the rights of the noncustodial parent and maintain family relationships following divorce. The law looks for a balance between protecting both parents' rights to custody of the child with the rights of a parent to relocate in search of a better life for him or herself.
The first step when the parent with primary custody relocates is always to try to have both parents agree on the move. If the individuals cannot come to an agreement regarding the relocation and visitation rights, then the case may be heard in court. Although there is very little Massachusetts General Law regarding removal, there is a good deal of case law on the issue. This case law has generally become the standard for deciding a relocation custody case because many unforeseen issues have arisen from the removal of a child by the parent with primary custody.
The Commonwealth of Massachusetts does not require much if the parent is looking to relocate within the state, unless this move would significantly interfere with the other parent's ability to visit. When necessary, legal procedures similar to those for moving out of state can be applied when the move is to a far region of the state that would affect the visitation rights of the noncustodial parent.
Moving out of Massachusetts is a more involved legal process because of its obvious implications on family relationships. For a parent with joint custody to move out of the state, there are higher legal standards than for a parent with sole custody. The main concern is obviously visitation rights for the parent who does not have primary custody, but the welfare of the child is also considered. The benefit of the relocation in this situation is highly scrutinized, measuring it against the possible harm a drastic move could cause the child.
When a parent with sole custody wishes to move out of state with his or her child, the court must still decide that the relocation is in the child's best interest and will want to hear how the move will emotionally, economically and socially benefit the family. The judge must deem that you have good and sincere reasons for the relocation, which may include remarriage, and the court will generally find that if the move is good for the parent, it is also beneficial for the child.
An unmarried mother does not need to go through such extensive legal steps when relocating. For cases where there is no biological father on record, such as before any paternity test has been performed. This means that custody has not been established, as a mother is considered the only parent of the child and therefore awarded sole custody if a biological father has not been identified. A parent who is a victim of domestic violence may need to leave the state quickly, but the Commonwealth still recommends consulting an attorney first to a void any potential custody issues. If appropriate, a restraining order may be granted to receive temporary custody and allow the child to leave the state with the parent.
Ideally, both parents will discuss the relocation and an agreement of parties will take place, but if the noncustodial parent objects to the move, judicial approval through probate and family court will be necessary. In the current economy, relocation for employment opportunities is common, and financial benefits or obligations to a current employer are typically found by the court to be sufficient reasons for an out-of-state move.
As with any divorce or custody issue, it is always best to seek an attorney's guidance before negotiating with the other parent or beginning the court process. Here at P&P Law, we utilize over 25 years of legal experience to assist with all types of family law issues. If you are facing a possible relocation issue, contact us to schedule a free consultation and decide what the best method is to fit your unique legal needs.
