Supreme Judicial Court signals that it may become more difficult for primary custodial parents to move children out of the Commonwealth

In Massachusetts, petitions for the removal or relocation of a child from the Commonwealth are evaluated under one of two legal analyses, depending on whether one parent has sole/primary custody or the parents share physical custody. Where one parent has primary physical custody of the child(ren) a judge will determine whether there is cause shown to permit relocation by applying the “real advantage” analysis first set forth in the case of Yannas v. Frondistou-Yannas.The interests of the custodial parent weigh heavily in the real advantage test, as a custodial parent will be permitted to relocate if the move offers a genuine, recognizable advantage to that parent and is consistent with the child’s best interests.

However, when physical custody is shared, the importance to the child of one parent’s advantage in relocating outside the Commonwealth is greatly reduced, and the focus therefore shifts to protecting the child’s relationship with both parents. Under these circumstances, the governing standard is the traditional “best interests of the child” standard first set forth in the case of Mason v. Coleman. The primary distinction between these analyses is the weight that should be assigned to the benefits that relocation would provide the parent seeking to move. While removal requests under the real advantage standard have typically been allowed, it is very difficult to relocate with a child when the removal petition is analyzed under the best interests standard.

In a recent decision, the Supreme Judicial Court affirmed the current binary standard regarding removing or relocating a child from the Commonwealth of Massachusetts when one parent has primary physical custody of the children while simultaneously suggesting that this standard may be revised in the future to give less weight to whether the removal provides a real advantage to the custodial parent. In Miller v. Miller, the Court seemed to question the wisdom of the Yannas-Mason framework, indicating that this legal standard may be reexamined in the future and leaving open the possibility that the real advantage standard may be abandoned entirely in favor of applying the best interests analysis to all removal cases, regardless of the parties’ custody arrangement. Were the Court to simply apply the best interests standard to all removal cases, it would become much more difficult for a custodial parent to move out of Massachusetts with their child(ren).


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