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Massachusetts Appeals Court Denies Mother's Request to Move Children to California

In Massachusetts, a custodial parent may not remove a minor child from the Commonwealth without the child's consent if the child is old enough to give it. If the child is too young to provide consent, the custodial parent may not remove the child without the consent of the other parent, unless the court orders otherwise "upon cause shown." G.L. c. 208, ยง 30. airplane-flying-1431418-639x433-300x204.jpg

Massachusetts courts use a two-prong test to determine if cause has been shown. The first step is determining if the move is a "real advantage," which means that there is a good reason to move the child. If this test is met, the second step is determining if the move is in the child's best interests. When there is a conflict between a real advantage of the custodial parent and the best interests of the child, the child's interests take priority. In looking at the best interests of the child, the court considers a number of factors, including whether the child's quality of life will improve, whether there may be a negative effect resulting from the changed relationship with the non-custodial parent, the extent that the child's emotional, physical, or developmental needs will be affected, the interests of the parents, and whether an alternative visitation schedule for the noncustodial parent is possible,

In Murray v. Super, the mother wanted to move her three minor children to California. The mother and father shared legal custody, but the mother had primary physical custody. The father was required by the divorce judgment to pay $850 per week in child support and 25% of any bonus he received.

In July 2012, the mother filed a complaint for modification, seeking removal of the children to California. She indicated she planned to get married in August to a man who lived in Danville, California. The father also filed a complaint for modification, seeking a reduction in child support because of the financial support the mother would receive from her new husband and seeking a defined holiday and vacation schedule. The judge found that while there was a real advantage, the move was not in the best interests of the children or the father. The judge dismissed the mother's complaint and reduced the father's child support obligation. The mother appealed.

The judge found that moving to California was in the interests of the mother and would be a real advantage. The judge considered the mother's remarriage and her difficulty in being away from her new husband, as well as the benefits for her in living in California with her husband. The mother's brother and his family also lived in Danville, California, and her parents lived about two hours from that town. The mother's new husband shared caregiving responsibilities for his daughter, who has disabilities. Additionally, the mother would not have to work outside the home if she were allowed to move. The judge found that these advantages would have a positive effect on the children.

The judge then considered the best interests of the children. She found that the move would cause the children to lose the stability and structure of their lives in Massachusetts. They had lived in the same town their whole lives and had built a network of friends through school, church, and other activities. They would also lose the regular weekly contact they had with their father.

The judge also found that the mother was focusing on the positive aspects of the move without insight into the negative effects on the children. Additionally, the judge found that the mother selectively informed the father of what the children were doing. The children had told the Guardian Ad Litem that they did not want their parents to live so far apart.

In examining the relationship between the children and their father, the judge found that there was a strong bond, and the father was very active in the kids' lives. The judge also found that the mother generally rejected the father's requests for additional time with the children. The judge found that the move would reduce the frequency and quality of the father's time with his children and would be stressful for the children and the father.

In looking at the developmental needs of the children, the court noted that none of them had special needs. Although they had strong roots in their current community, the opportunities for them in California would be approximately equivalent.

In looking at the interests of the parents, the judge found that the move would be an advantage for the mother, but the mother had not thoroughly considered how the move would affect the father and the children. She had not investigated what opportunities would be available to them in terms of academics or their extracurricular activities. The father would be unable to continue the quality and quantity of parenting time he spent with the children in Massachusetts, so the move would not be in his best interests.

In terms of alternative visitation, the judge found the mother had not made realistic suggestions regarding how the father and kids could maintain the type of contact they had in Massachusetts.

Ultimately, the appeals court agreed with the judge's findings and found no error in her determination that the benefits the move would have for the mother did not outweigh the negative effects it would have on the children and the father.

The appeals court did, however, vacate and remand the modification of child support, noting there were insufficient findings in the record to reduce the child support. Additionally, the judge had eliminated the requirement that the father pay 25% of any bonus. The appeals court stated that this requirement should be reinstated because neither party had requested it be eliminated and because removing it could result in the mother receiving less than the amount to which she would otherwise be entitled.

This case shows the importance of considering and presenting evidence on how children will be affected by a proposed move. The appeals court mentioned the mother's lack of insight into the negative effects the move would have on the children.

If you have a family law issue in Massachusetts, a skilled Massachusetts family law attorney can assist you. Contact the Law Offices of Richard Mucci at (781) 729-3999.

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