A July 2012 Massachusetts Appeals Court decision, Murphy v. Murphy (No. 11-P-103) emphasized the importance of a “physical custody” designation when a divorced or divorcing parent seeks to move out of state with a child.
Interstate and international moves are common for individuals pursuing education, job opportunities, or just a fresh start in life. Relocation can be more complex in a family that has experienced a divorce, or where parents do not share a household. In Massachusetts, a parent seeking to remove a child from the Commonwealth of Massachusetts over the objection of the other parent must file a “removal action” in the Probate and Family Court. See Massachusetts General Law Chapter 208, Section 30.
The standard that the court applies in a removal action depends on whether the parent has sole or joint physical custody over the child. If a parent seeking removal has sole physical custody, a court will apply the two-pronged Yannas standard, from the case of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985). The court will look first at whether the move will provide a “real advantage,” and then whether it is in the “best interests of the child.” If, however, the parent seeking removal shares physical custody of the child with another parent, the court will only apply the “best interest of the child” test, as set forth in the case of Mason v. Coleman, 447 Mass. 177 (2006). The Yannas standard is generally more favorable for the parent seeking the removal.
The recent Murphy case suggests that the Yannas standard can apply despite a recent period of shared physical custody, where the parent seeking removal is the primary caregiver and has been awarded sole physical custody. In this case, divorcing parents had a temporary joint physical custody arrangement for their child. However, the court found that the mother was the primary caregiver and awarded her sole physical custody of the parties’ child. The court allowed the mother to relocate out of state with the child, applying the two-pronged Yannas standard over the father’s objection.
If you have questions about custody or other divorce issues, including moving out-of-state, contact Hutchins Law, P.C. today.