If you have a separation agreement that was the basis for your divorce judgment then you should check your agreement on removing your children out of Massachusetts. Your agreement is binding on both parties and may address removal. Massachusetts law also addresses removal of a child out of Massachusetts. In Massachusetts, once a court action relating to custody is filed, neither parent can relocate a child out of Massachusetts without either permission from the other parent or a Judge.
If both parents agree to the move, it’s best to get this agreement in writing and have it notarized. This can help prevent future disputes. Depending on the terms of your separation agreement, you probably don’t have to file this agreement with the court.
If the other parent does not agree, the parent wishing to move must file a complaint for modification with the court requesting permission to remove the child. The issue on removal of the child is called the “real advantage” test. The test has two steps:
1. Determine if there is a “real advantage”
The parent must show a good reason for the move, such as a job opportunity or a support network in the new location.
2. Determine if the move is in the child’s best interest.
The court considers the impact on the child’s relationship with the noncustodial parent, as well as the child’s emotional, physical, and developmental needs.
In considering the real advantage test, the court may consider the following
The quality of the child’s life
The impact on the child’s relationship with the noncustodial parent
The impact on the child’s emotional, physical, or developmental needs
The interests of both parents
The possibility of an alternative visitation schedule for the noncustodial parent
The court may deny the request to move if the impact on the children is too severe.
If the parties can’t agree on the issue, the Court will hold a trial on the complaint for modification. At the end of the trial, the Court will issue a judgment.
