Divorcing Parents and Moving Children

When contemplating a divorce, one spouse may desire to relocate to another state, for various reasons. If there are children involved in the divorce, and the spouse desiring to relocate is the primary custodian of those children, moving to another state is not a guarantee. A recent decision by the Massachusetts Appeals Court added to the already established case law governing removal, by clarifying that the best interests of the children trump any real advantage gained by the custodial parent. See Murray v. Super, Mass. App. Ct. No. 14-P-518, March 16, 2015. See also Yannas v. Frondistou-Yannas, 395 Mass. 704, 710-711 (1985).       

In Super, the parties were divorced in 2011. In 2012, the mother, who was the primary physical custodian of the children, filed a modification alleging that she was to be married to a resident of California, and therefore sought to remove the children to California with her. The trial judge agreed that moving to California would be a real advantage to the mother, but dismissed mother’s complaint, because the move “was not in the best interests of the children or the interests of the father.”

In discussing the best interests of the children standard, there are five relevant factors: 1) whether the quality of the children’s lives will be improved, 2) any possible “adverse effect of the elimination or curtailment of the children’s association with the noncustodial parent,” 3) “the extent to which moving or not moving will affect the children’s emotional, physical or developmental needs,” 4) the interests of both parents, and 5) the possibility of an alternative visitation schedule for the noncustodial parent. Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006), quoting from Yannas, supra at 711-712.

Because each case presents different facts and circumstances, a divorcing or divorced individual would be unwise to simply look at the above list and determine for themselves that their particular situation would qualify them to remove children to a different state.

This case emphasizes that it is best to involve experienced legal counsel in cases involving the removal of children from one state to another. Contact Hutchins Law, P.C. today to discuss any questions relative to divorce and family law.

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