People are much more mobile today than they were just a few years ago. This frequently creates a situation post-divorce where the parent who is the primary caretaker of the children, or who has “physical custody,” needs to relocate due to job opportunities, remarriage, or other family commitments. This will obviously affect the non-custodial parent and their parenting time, so how does the court handle this situation?
Can I move with my kids?
We are commonly asked by parents whether they are able to move out of state, or even out of town, with the children either after or as a part of the divorce process. This issue, referred to as removal, is difficult and fact-specific. There is little middle ground for settlement; the relocation is allowed or it is not. In this article we discuss scenarios that most commonly arise, but the outcome depends significantly on the facts of each situation, and the decision of the judge can turn based on a very specific, and sometimes overlooked, fact.
Moving the children to a new town
If the parents have joint legal custody, the non-moving parent has a say in whether the kids move to another town. Even if the move is a short distance, the move may mean changes in the children’s schools, activities, or healthcare providers. These are all legal custody issues and the decision needs to be made together. One parent does not have the right to change school districts if both parties do not agree. In that case, a court decision regarding the change would be necessary.
Moving the children to a new state
When one parent wants to move to anther state, the analysis is much more complicated. There have been several cases decided on this issue, and a recent case, Murray v. Super, 14P518 (2015), the court clarified the way in which attorneys and parties should analyze removal cases.
When one parent wants to move out of the Commonwealth with the children, the court first looks the parenting plan for the children both on paper and in practice. The court then looks at what benefits the moving parent will have if they are allowed to move. Some factors the court may consider are career opportunities, increased earnings, residence of a new spouse, family support after the move, living arrangements, and overall quality of life. Considering those factors, the court then evaluates how the move will affect the children’s lives and whether they will experience an improved quality of life with a happier parent, two-adult household, improved school district, improved opportunities for activities and enrichment, as well as the effect on the relationship with the non-moving parent.
Historically the court would consider the effect on the relationship between the child and the non-moving parent, but greater emphasis was placed on the improved quality of life of the moving parent and children. This focus was changed with the Murray decision. In Murray, the Court found that the mother, who wanted to move the children to California, had a real advantage to moving in that her new spouse resided there and provided her with financial and emotional stability. The court, however, decided that it was not in the children’s best interest to move even though it was agreed by both parents that the quality of education and standard of living in California would be the same as in Massachusetts. However, the children would have to leave their community base and peer groups. The court focused on the relationship with the father who was very active in the children’s lives, attended functions, coached athletic activities, attended church, and utilized all of his parenting time. The father saw the children at least 1/3 of the year. The court found that the move would not be in the children’s best interest because the quantity, and more importantly, the quality of parenting time could not be replicated if the children moved. Moving forward, attorneys and the parties should carefully consider the effect any relocation would have on the existing relationship between the children and the non-moving parent, no matter what opportunities may present themselves for the moving parent.
There exists many factors to consider when one parent wants to move out of state with the children, particularly when the move is of a substantial distance. The court has to weigh the interests of the moving parent, and the children, but also the non-moving parent and how the move would effect the relationship. These are often difficult and emotional cases that require an in depth analysis of the specific facts of the case.