Your Separation Agreement Says What?!

Last year, the Massachusetts Appeals Court rendered a decision which, among other, reiterated longstanding legal precedent regarding a custodial parent’s ability to remove a minor child from the Commonwealth. See Schechter v. Schechter, Mass. App. Ct. No. 13-P-1035. September 9, 2015.

What sets Schechter apart from other cases dealing with removal isn’t the fact that the case required an eighteen day trial involving thirty-eight witnesses and one hundred and thirty-two exhibits (!), it was the unique fact pattern which provided that Mother not only had a G.L. c. 209A order precluding contact between Father and Mother, but also Father and child. Hence, Father’s parental visits with the minor child were suspended for at least a year. More germane to the issue of removal however, and probably because she had prevailed in precluding Father from having any parenting time with the minor child, the Mother also had the following provision as part of the separation agreement between the parties:

[Mother has the right to remove the child] from the Commonwealth of Massachusetts to the state of New York or another state if the opportunity for employment and security is more readily available elsewhere.

The Appeals Court did not like that the language “impermissibly [left] the decision whether to remove and to where to remove solely in the hands of the Mother.”

(In a previous BLOG we spelled out the muti-part test that a moving party must meet to be successful in a removal case.)

To the extent that Father’s parental rights were not terminated, and the possibility existed for Father to potentially resume parenting time with the minor child at the close of the initial year of the restraining order, the Appeals Court found that the trial judge had erred in allowing Mother to remove the child from the Commonwealth. The matter was remanded for an evidentiary hearing on the issue of removal. (NOTE: With the delays concurrent to appellate practice, by the time the Appeals Court had issued this decision, Mother and child had already been living out-of-state for several years, and were allowed to continue living out-of-state during the pendency of the evidentiary hearing. Justice?)

This case emphasizes the need for attentive counsel during the preparation and execution of a separation agreement. Contact the attorneys at Hutchins Law, P.C. today, to discuss how you can protect your parental rights.

The purpose of this article is to inform our clients of developments in the law and to provide information of general interest. It is not intended to constitute legal advice or to assume a client relationship. The content of this article could be considered advertising under the rules of the Massachusetts Supreme Judicial Court. Copyright © 2012 Hutchins Law, P.C. All Rights Reserved.