The following is provided for informational purposes only. It is not meant to be comprehensive or to be interpreted as legal advice. It also shall not be interpreted in such a manner as to form an attorney-client relationship. For such advice, consult an experienced Family Law attorney.
After a divorce case is filed either party is restrained from removing any child from the Commonwealth of Massachusetts. When a party seeks to remove a child from the Commonwealth on a permanent basis, the court will apply a "real advantage" test which is grounded upon the "realization that after a divorce a child's subsequent relationship with both parents can never be the same as before the divorce... and that the child's quality of life and style of life are provided by the custodial parent." Yannis v. Frondistou-Yannis, 395 Mass. 70,710 (1985) citing Cooper v. Cooper, 99 N.J. 42,53 (1984).
Removal cases can be among the most difficult cases for litigants and their children. The courts are very cognizant of the fact that allowing a parent to remove a child may severely impact the relationship between the child and the non-custodial parent. Also, after a parent has been permitted to remove a child and the child has resided out of the Commonwealth of Massachusetts for a period exceeding six months, the Commonwealth loses jurisdiction over custody and visitation matters pertaining to the child. It is for these reasons that the court is reluctant to permit such removals without strong justification.
Situations where the court may be generally inclined to permit such removals include the remarriage of the custodial parent and/or a very significant employment opportunity outside of Massachusetts. Also, there is probably more of a predisposition of the courts to allow removal to states that are geographically closer.
The extent of the involvement of the non-custodial parent in the life of the child will also very often play an important role in the decision of the court as to whether to allow the removal.
Lastly, in removal cases that do settle or are ordered by the court, child support payments by the non-custodial parent are often reduced on the theory that there will be increased out of state visitation expenses.
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