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Implications of Working Out-of-State on Shared Parenting Plans

The increase in housing prices in Massachusetts and the ability to work remotely has afforded many people the opportunity for out-of-state home ownership in lower cost-of-living locations.  However, for parties with a shared parenting plan the calculus surrounding that decision can be quite complex as in many cases the same will require a court order approving the permanent “removal” of a minor child out of the Commonwealth.

In Massachusetts, with respect to the removal issue, the “Yannas” test applies to cases where one party has physical custody and the “Mason” test applies in cases of joint physical custody. If there is joint custody of the children, under Mason, it is presumed that the children are fully integrated into both households. Therefore, the children’s relationships with both parents need to be protected, insofar as possible. Although, the Yannas and Mason standards both focus on the best interests of the child, they differ regarding the proper framework within which to evaluate those best interests.

To satisfy the Yannas test, a sole custodian seeking removal must demonstrate that the move will provide him/her with a “real advantage.” Once the court finds the existence of a real advantage, it must then find that the move out of state is in the best interests of the child. To do just that, there will be a balancing of the interests, whereby the court will examine the advantages and disadvantages of moving or not moving not only to the child, but also to the parent who has sole custody. The Court will look to whether the non-custodial parent is unfit or has not exercised visitation and how involved the non-custodial parent is in the child’s daily life.

If the Court was to find the existence of a “real advantage” the Court must conduct a “best interest of the child” analysis, which includes consideration of three distinct points of view:

(1) The Potential Effects of Removal on the Child

It is a fact-driven process and the Court will look to many things in determining same including, but not limited to: how the new school system compares to that in which the child is currently enrolled; who has been the child’s primary caretaker; proximity to family; and the effect of the proposed visitation schedule on the child.

(2) The Interests of the Custodial Parent

The Court will look to what, if any, effect removal will have on the custodial parent’s employment, financial security and social network. The Court will also look to whether the custodial parent will be socially isolated, as the Appeals Court has held that a parent’s happiness undeniably affects the quality of parenting. Specifically, a Court may access the extent to which a parent’s unhappiness impacts a child and the practical effects of the move is the parent is expected to have a better quality of life.

3) The Interests of the Non-Custodial Parent

The Court will look to whether the non-custodial parent is unfit or has not exercised visitation and how involved the non-custodial parent is in the child’s daily life.

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