Can I relocate with my child after divorce?

Photo of Jeffrey A. Soilson

If you’re a parent of a minor child of divorce in Massachusetts, can you relocate to a different state or country with your child (an issue the courts call “removal”)?

Assuming no negotiated agreement to relocate with your co-parent (a preferred outcome in resolving these highly contentious disputes), and to help you answer this question in the context of contested litigation, Fitch family law attorneys will walk you through a judge’s required functional analysis that is based on current Massachusetts law. It’s a complicated process of gathering the facts of your particular case and connecting them to the correct legal standard.

First, in deciding whether you should be permitted to permanently remove your child from Massachusetts to relocate to another location, your judge will determine whether physical custody of your child is sole or shared. If you have sole physical custody, the judge will apply the “real advantage” standard to your removal request. If you share physical custody, the judge will evaluate your removal request based on the “best interests” standard. When there is no prior custody order with a categorical custodial determination (or even if there is one, but your actual parenting practices differ from what the court order specifies), the judge must first make a factual inquiry regarding your parenting responsibilities to determine whether it more closely resembles sole or shared custody, and then apply the corresponding legal standard.

So, what does all this mean? In basic terms, the more parenting time your co-parent has, the more weight is given to their objection to your removal request. The more parenting time you have, the more weight will be given to the advantages a move will offer you. If the process works as intended, here is how the judge’s functional analysis might look at trial:

First, the judge will examine your allocation of custody and parenting responsibilities. The judge wants to hear how you divide your child’s care. Focus on the physical and emotional care of your child, as well as day-to-day tasks such as feeding, clothing and bathing. Focus on availability to parent and your ability to place your child’s interests ahead of your own. For example, does your co-parent’s work-related travel have an impact on their ability to implement a shared parenting time requiring parents to live in close proximity? How is the quality of communication with your child when your co-parent is away? Does your co-parent miss allotted parenting time? Seek to make up missed allotted parenting time? How is your co-parent’s ability and desire to cooperate amicably and communicate with you to raise your child?

Second, assuming your case does not involve co-parenting that is essentially equal, you’ll have to provide the judge with admissible evidence that there is a “real advantage” in your moving to your new location. Do you have a well-paying job offer there (despite having applied for numerous positions in Massachusetts)? Are you able to show the judge that you are motivated to move for good reasons, such as an extended family support system in the new location, or remarriage followed by your new spouse’s job transfer – and not a desire to deprive your co-parent of parenting time.

Finally, you’ll have to help the judge collectively consider the interests of all of those involved – your child, the custodial parent, and the noncustodial parent – and balance those interests in order to determine whether removal is in your child’s best interests. The judge will have to consider whether the quality of your child’s life may be improved by relocation. This naturally includes any improvement in your child’s life that flows from an improvement in the quality of your life. Will removal help you better provide for your child’s emotional, physical or developmental needs? Will your child be attending a better school? Receiving better medical care? Have support from loving, extended family with whom your child has had frequent and extensive contact since birth? Will your child be in closer contact with life-long friends? In a place where your child knows the local language? Upon relocation, will you be a parent who is less financially strapped, less stressed, and in an overall happier state of mind? Will removal have a detrimental effect on the relationship your child has with their other loving parent? Can alternative visitation arrangements achieve ongoing and meaningful contact? Does a time difference have an impact on telephone or online communication between your child and their other parent? Can an adjustment to, or order of no, child support soften the financial impact of additional travel expenses?

For more information about removal cases, please contact the family law attorneys at Fitch Law Partners LLP.


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