When a Parent Wants to Relocate with a Child

November 19, 2009 by  
Filed under Divorce

Copy of Laurie-Israel-013 2nd Twitter copyWe live in a very mobile society. People come to Massachusetts for their education and for job opportunities from all over the U.S. and foreign countries. This poses a problem when a spouse wishes to go back home  after a divorce– to their state (or home country) where their extended family lives and want to take the children of the marriage with them.  (The technical term for this is “removal”. )

The problem also comes up with job loss and employment opportunities for a spouse who has joint or primary custody of the children. It is a difficult problem for spouses to deal with even in an ongoing marriage. So when spouses are divorcing (or have already divorced), when the level of cooperation and good will may be at a lower point, it is especially difficult.

In divorces, I have seen the following permutations:

Both divorcing spouses decide it’s best to move to the city or country chosen by one. Or sometimes the primary parent spouse moves away with the children and without the other former spouse. Sometimes the non-primary parent moves away without the children. The decision regarding removal needs to be made gently, thoughtfully and carefully, with the utmost attention to the needs and well-being of the children.

It is important to have children near extended family, if possible. But it is also important for the children to be near both parents, if possible.  Sometimes a spouse needs to move to get  family support and help taking care of the children, or to earn a livelihood. No matter how you slice it, when a parent leaves permanently with children, it is a hard situation.

In cases where a parent has primary physical custody, a court may permit that parent with the child or children if he/she shows that there is a “real advantage” to the move. See Yannas v. Frondistou-Yannas, 395 Mass. 704, 705, 706, 711 (1985). Under the real advantage test, “[s]hould it be found that there is a genuine, recognizable advantage to the custodial parent from the move, the inquiry then turns to whether the move is consistent with the children’s best interests. In the analysis, the consideration of the advantages to the custodial parent still remains a significant factor in the equation. Pizzino v. Miller, 67 Mass. App. Ct. 865, 870 (2005).   In cases that have gone to litigation on this issue, it’s a fairly high burden of proof to meet.

The American Law Institute’s Principles of the Law of Family Dissolution in Chapter 2 has also weighed in on the issue of removal. It asserts that “[T]he court should allow a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose”.   And the American Academy of Matrimonial Attorneys (AAMA) has issued a proposed Model Relocation Act, which in sections 405 and 406 articulates factors to be considered, and factors not to be considered when determining a contested removal. Interesting in the (short) list of what is not to be considered is whether the parent seeking relocation has said that he/she would not relocate if the removal petition was denied.

Because removal is such a difficult juncture for parents with close ties to children, removal issues are good topics to use alternative dispute resolution techniques to resolve, such as Mediation or Collaborative Law. They require the utmost in flexibility, good will, and clear thinking on the part of the parents, with capable assistance by attorneys or mediators.

© 2009  Laurie Israel.  All rights reserved.

Laurie Israel  is engaged in helping divorcing and divorced resolve their disputes in the most humane way possible.   She is joined in her practice of family law at the firm with Karen Van Kooy.

Laurie Israel,  founder of the firm Israel, Van Kooy & Days, LLC  has a tax background and an interest in what makes marriages break down. She is on the board of the Massachusetts Council on Family Mediation, and is a board member and is active in the Massachusetts Collaborative Law Council.  She writes and presents on prenuptial agreements, collaborative law, mediation and marriage.

 

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