USA – MASSACHUSETTS Law and Practice Contributed by: Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff and Mariah G. Tappan, Verrill Dana, LLP
2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation The factors a court may consider when determining whether to allow a relocation include, but are not lim - ited to: • the relocating parent’s reason for relocation; • how the relocation would impact the child’s quality of life – including improvements stemming from the custodial parent’s wellbeing (ie, securing employ - ment, and professional advancements); • proximity to extended family; • lower cost of living; • the child’s emotional, physical and developmental needs; • the impact on the child’s relationship with the non- relocating parent; • the feasibility of alternative visitation arrangements; and • the interests of both parents. No single factor is controlling. Instead, the factors must be considered collectively. Should one parent seek permission from the court to remove a child/children from Massachusetts, M.G.L. Ch. 208, Section 30 governs, setting forth the notion that a minor child of divorced parents who is a native of or has resided in Massachusetts for five years or more must not be relocated from Massachusetts with - out the consent of both parents or by Court Order. Notably, M.G.L. Ch. 208, Section 30 is applicable to both married and unmarried couples. Case law then guides Massachusetts practitioners in the interpre - tation of this statute and the execution of relocation matters. Relocation must be in the best interest of the child or children whom a party is seeking to relocate. Accordingly, practitioners must consider and evaluate what factors determine whether removal is in a child’s best interest. The applicable relocation standard differs depend - ing on whether the case involves a primary custodial parent or involves shared physical custody. Shared physical custody exists when a child resides with both parents and has frequent and consistent contact with
If there is no parental consent, there are two ways for a person to adopt a child, both of which require a peti - tion for adoption: (i) if the person to be adopted is 18 or older; or (ii) if the court finds that allowing the peti - tion is in the child’s best interest. In looking at whether the adoption is in the child’s best interest, the court must consider a variety of factors as detailed in the statute. These factors relate to the child’s relationship with the potential adoptive parent, the relationship with the legal parents, the level of neglect or abuse that may have been present, etc. 1.5 Relevance of Marriage at Point of
Conception or Birth See previous sections. 1.6 Same-Sex Relationships See previous sections. 1.7 Adoption See previous sections.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
Any child of divorced parents who was born in Mas - sachusetts, or who has resided in Massachusetts for at least five years, cannot be moved out of Massa - chusetts without the consent of both parents or court order. Although the relevant statute, M.G.L. Ch. 208, Section 30, applies only to married parents, the Mas - sachusetts Supreme Court held that the same rules must apply for children of unmarried parents. The Massachusetts Supreme Court decided that both legal parents must agree to move the child outside of Massachusetts. ( Smith v McDonald , 458 Mass. 540 (2010).) 2.2 Relocation Without Full Consent M.G.L. Ch. 208, Section 30, as well as the court in Smith v MacDonald , is clear that if the parents are unable to agree, the court may issue an Order. If the required consent cannot be obtained, then the issue of relocation has to be decided by the court, often through a trial.
181 C HILD RELOC AT I ON 20 26
CHAMBERS.COM
Powered by FlippingBook