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Relocation of Children Outside of Massachusetts

A parent may need to move out of Massachusetts for a number of reasons. In most circumstances, the courts in the new state uphold and enforce custody and support orders from Massachusetts. If litigation is ongoing in Massachusetts pertaining to custody of a child, you will need permission from the court or the other parent to move to another state. The relocation of a child to another state is referred to as a “removal” action. Under Massachusetts General Law, Chapter 208, Section 30, a minor child of divorced parents who is a native of or who has resided five years within Massachusetts and who is under the jurisdiction of the court cannot be removed if under the age of consent without either an agreement of both parents or court order. Further, if the child was born in Massachusetts or has lived here for five years and litigation is ongoing or you were involved previously in Massachusetts in litigation pertaining to divorce, separate support, custody or paternity action, the “removal” law applies. It does not only apply to parents who are divorced.

If the parties are still married and there is no custody order, the parties share custody of the children. Technically the “removal” law does not apply. However, when a parent seeks to leave the state with a child, it is best to obtain permission from the court. Even moving from one part of the state to another can have an impact on a parenting plan.

If a parent seeks custody of a child in Massachusetts, under the Massachusetts Child Custody Jurisdiction Act, a custody matter can be heard in Massachusetts if the child’s home state is Massachusetts, there is no home state, or an emergency exists and the child is in Massachusetts. The “home state” is the state where the child has lived for six months before the case was filed with the court. If a parent leaves without a custody order, the other parent can seek custody with the court in Massachusetts within six months from leaving the state. A permanent custody order cannot be obtained in any other state until the child has resided in the new state for six months.

When obtaining permission from the other parent to move out of state, it is a good idea to have an agreement notarized and filed with the court. If the other parent does not consent, the court will need to make an order. If you have sole physical custody, the judge will let you remove the child if it is in the child’s best interests. The judge will apply the “real advantage” test as follows: why you want to move, are the reasons good and sincere, how will the relocation benefit you and the child. Also, the reason for your move cannot be to prevent the other parent from seeing the child. If the parties share physical custody or the other parent is very involved in the child’s life, the court will focus on the best interests of the child in moving. If you want to prevent removal, a party can file a complaint with the court to restrain removal of the child from Massachusetts.

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