USA – MASSACHUSETTS Law and Practice Contributed by: Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff and Mariah G. Tappan, Verrill Dana, LLP
each parent. Conversely, sole physical custody gener - ally reflects that a child resides with only one parent subject to visitation by the other parent. Where physical custody is shared, courts rely on the best interests of the child standard, grounded in the needs and circumstances surrounding the individual child in question. (See Mason v Coleman , 447 Mass. 177, 183-184 (2006).) In contrast, where one parent has primary physical custody, or greater custodial responsibility than the other parent, the two-part “real advantage” test applies. (See Yannas v Frondistou - Yannas , 395 Mass. 704 (1985).) The greatest distinc - tion between the two standards is the weight that a court must assign to the benefits that relocation would have on the parent seeking to relocate the child from Massachusetts. In the case Mason v Coleman , the court addressed the mother’s request to relocate the children to a bor - dering state, where parents shared physical and legal custody of two children and exercised approximately equal parenting time. ( Mason v Coleman , 447 Mass. 177, 178 (2018).) The Trial Court concluded that relo - cation was not in the children’s best interests. (Id.) In reaching its conclusion, the Trial Court considered: (i) the suitability of schooling options for each child; (ii) the fact that the children would be “uprooted” from the life they were accustomed to; (iii) the impact that a reduction of the father’s parenting time would have on the children; and (iv) the financial consequences that a move would have. (Id.) The mother appealed, but the Appellate Court upheld the Trial Court’s decision, reasoning that the Trial Court had appropriately con - sidered the best interests of the children. (Id. at 179.) In the case Yannas v Frondistou - Yannas , the court addressed removal where one parent has sole physi - cal custody of a child. Both parents filed appeals chal - lenging aspects of their divorce judgment, including the mother’s relocation of the parties’ two children to Greece. ( Yannas v Frondistou - Yannas , 395 Mass. 704, 706 (1985).) The Appellate Court explained that, where the party seeking removal is the child’s pri - mary caregiver, a court must apply the “real advan - tage test” two-part inquiry. (Id. at 710-712.) First, the court must consider whether the custodial parent can demonstrate a good and sincere reason for want -
ing to relocate the child. (Id. at 711.) Next, the judge must consider whether the parent seeking relocation is motivated by a desire to deprive the noncustodial parent of parenting time with the child. (Id.) The Appel - late Court upheld the Trial Court’s decision to allow the mother to remove the children to Greece, citing numerous supporting factors, including: the move would be financially, emotionally, and socially advan - tageous to the mother; the children would benefit and could strengthen their ties to family and Greek cul - ture; the children will receive excellent schooling; and the father will be able to visit the children often over The wishes and feelings of a child in a relocation action may be relevant in the court’s analysis, but they are not a determining factor. M.G.L. Ch. 208, Section 30 guides practitioners in this regard, creating a two-tier framework based on the child’s age. Absent a Court Order, a child of “suitable age to signify consent” can - not be relocated from Massachusetts without that child’s consent. In contrast, relocation of a younger child requires either the consent of both parents or a Court Order. extended periods of time. (Id. at 712.) 2.3.2 Wishes and Feelings of the Child “Suitable age” has yet to be defined in Massachusetts case law or statutes. Instead, “suitable age” is deter - mined on a case-by-case basis, considering a child’s age, maturity, intellect, skill, and academic abilities. (See Murray v Super , 87 Mass. App. Ct. 146 (2015).) In practice, this individualised inquiry means that the preferences of two children that are of the same or similar age may be treated differently by the court based on their developmental levels and understand - ing. When a child is below “suitable age,” a court may still consider the child’s preferences as a factor in the court’s relocation analysis. However, Massachusetts courts have consistently held that the preferences of a child below “suitable age” must be treated with cau - tion and are not a decisive factor in the overall relo - cation analysis. Said differently, the preferences of a child below “suitable age” are one factor among many that a court may consider in determining whether relo - cation is in a child’s best interests.
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