Having kids means making a lot of sacrifices, but raising kids with an ex means making even more. If you or your ex want to move away (“relocate”) and take your kids along, you’ll have to power through some legal processes before you can leave.
A parent always has the right to move away if the kids aren’t coming along. A parent also has the right to move away, with the children, but only if the other parent agrees.
However, if a child is a native of Massachusetts or has lived in the commonwealth for five years, and the child is the subject of a custody and visitation order stemming from a divorce, custody, or paternity case, then a parent can’t move the child outside the commonwealth, or a great distance away within the commonwealth, without the other parent's permission or a valid court order allowing the move upon cause shown. “Upon cause shown” means that the judge rules that relocation is what’s best for the child.
If you want to relocate with your child, you must give the non-moving parent notice. Notice will give the other parent an opportunity to object and then both of you will be able to go to court and ask a judge to allow or to block the move. If you both agree to the move, write down your agreement, and take it to your local courthouse.
Massachusetts doesn’t have specific requirements about the type of notice you should give, or how far in advance you should provide it. But as a matter of common sense, you should provide the other parent with written notice of the date you intend to move, the new address, and the reason for the move. You should do this as far in advance as possible, unless you’re afraid that notice would endanger you or should child, in which case you should go to your courthouse and ask for help.
If parents can’t agree about a relocation, either of them can go to the family court and ask for an order either allowing or blocking the move. The judge will then schedule a hearing, and may also require one or both parents to pay a bond (which is a financial payment that’s returned after the judge decides the case) to make sure no one moves without permission. The court can also choose to issue a writ (legal order) preventing the parties from moving until the judge can write a final order. At the hearing, the judge will listen to testimony and consider evidence about the impact of the move on the children.
Don’t move away with your kids when your ex disagrees and the court hasn’t ruled yet. Consult a lawyer first.
The key driver a court will use to decide whether to permit or block a rule is the child’s best interests. Simply put, if a move isn’t in a child’s best interests, the judge won’t allow it. To determine best interests, Massachusetts has two different types of processes, depending on the history of the case.
First, if the parents have joint (shared) custody the court will apply a traditional best interests analysis. The judge will look at evidence about the following questions:
Second, if one parent has primary custody (meaning, the parties share some custody and visitation rights, but the child spends most of the time living with one parent), then the judge will apply the “real advantage” standard to the case. The court uses this test because when a child spends most of the time with one parent, the child’s well-being becomes closely intertwined with the parent’s well-being. Whether there’s a real advantage to a move is determined through a two-part test:
Depending on the facts, the courts have allowed relocations in cases where a move serves the child’s best interests. For example, in one case, the court allowed a mother to move away to Illinois over the father’s objections. The move decreased, but didn’t totally undermine, the frequency of the children’s contact with their father. Further, any detriment was outweighed by the tremendous advantage to the children of living closer to their maternal grandparents and other extended family and of attending better schools.
In another case, the courts allowed a mother to move her children to California, where the mother had secured a better job. The move would be tremendously beneficial to the mother in that it would eliminate her financial worries and the ensuing depression and malaise they caused. The court found that the benefits to the mother trickled down to her children and outweighed the disadvantage of spending less time with the father.
The court reached a different result in a case where a mother wanted to move her son to California. The father previously had frequent contact and a very close relationship with his son, and moving the boy to another coast fundamentally undermined that relationship. The child was far too young to be forced into a bi-coastal lifestyle, and the “benefits” of the move to the mother (who would have been worse off financially after the move) were insufficient to outweigh the harm to her son.
If you or your ex have custody or visitation rights and want to relocate with your children, you should contact an experienced Massachusetts family law attorney to assess your situation, advise you about your rights and obligations, and represent you in court.