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Removal of Children from the Commonwealth

By Olivia Williams , Associate Attorney, Law Group, P.C.

Olivia Williams One of the most complex issues faced by the Probate and Family Court arises when one parent wishes to relocate out of Massachusetts with a minor child, or "remove" the child from the state. The removal statute found in M.G.L. ch. 208 § 30 states that "A minor child of divorced parents...shall not, if of suitable age to signify his consent, be removed out of this Commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders." Though the statute refers to a child of divorced parents, it has also been applied to children born out of wedlock.

The statue provides two easy methods to remove a child out of the Commonwealth. First, if the child is of suitable age, then he or she can consent to the removal. Second, one parent may consent to the child's removal by the other parent. However, the majority of removal cases involve either children who are not old enough to consent, or involve the other parent opposing the removal. In this situation, the statute authorizes the Court to order the removal "upon good cause shown."

Over the years, the courts have been tasked with determining what exactly the vague language "good cause shown" means. Fortunately, the case law has been relatively settled after the Supreme Judicial Court's precedential case, Yannas v. Frontistou-Yannas, 395 Mass. 704 (1985), which primarily focused on interpreting this phrase. The court began its analysis by broadly stating that "good cause" means that it would be in the best interest of the child, including whether the child's quality of life would be improved, the effect the move would have on the child's relationship with the non-custodial parent, and the emotional and developmental effects of the move on the child.

More specifically, the court in Yannas and later courts alike placed significant weight on whether the custodial parent has demonstrated a "good, sincere reason" for wanting to remove the child. A "good" reason to remove the child has been interpreted to include a move closer to extended family, a move by the custodial parent for better job prospects, and a move for a new spouse's employment. A "sincere" reason for seeking removal is one that is not motivated by a desire to diminish or preclude contact between the non-custodial parent and the child. Once this "good, sincere reason" threshold has been met, a court will then determine all other factors affecting the "best interest of the child" collectively to reach its decision.

There is no easy answer to the removal question. Most often, it becomes an extremely contentious and emotionally charged issue. The most important thing to remember for a removal case, as well as any other case involving children, is that the courts will always act in the best interest of the child and seek to preserve the child's relationship with the non-custodial parent.

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