Removal

Divorce | Alimony | Removal | Custody | Support | Paternity | Abuse 

Massachusetts has laws about moving out of state with your

children. Massachusetts laws refer to this as “removal” of the

child from the state. These removal laws deal with when a parent

must ask the other parent for consent to remove the child, and when, if

the other parent does not give consent, the parent who seeks to remove

the child must get permission from a judge.

When do I have to get permission to leave the state with my child?

If you are divorced,

there is a law about when you must get permission from the other

parent or a judge before you move away from Massachusetts with the

child.

If you are still married to the other parent,

but are not divorced and have not been to court, under Massachusetts

law you and your spouse share custody of the child. That means

that it is lawful for either parent to remove the child from the

state. Where the parents have not been to court for a custody

decision, however, even removing your child lawfully, without

permission, may contribute to the other (non-removing) parent being

awarded custody. That is because shared custody means that each

parent is entitled to share in making important decisions about the

child’s welfare. Relocating to another state is an important decision

about a child’s welfare. Removing a child on your own, without the

agreement of a parent with whom you share custody or permission of a

judge, might violate the other parent’s shared custody rights and might

be seen by a judge as acting against the child’s best

interests. If you and your spouse cannot agree about whether the

child should be removed from Massachusetts, you probably should ask a

judge for permission.

If you were never married to the other parent,

and even if

you have custody of the child, you might still be well-advised to seek

the other parent’s agreement or permission from a judge if there is no

agreement. Even though there is no clear legal requirement about

getting permission as there is for divorced parents, Massachusetts law

says that “Children born to parents who are not married to each other

shall be entitled to the rights and protections of the law as all other

children.”

If you are a victim of domestic violence,

you may need to

leave the state quickly, or at least your area, with your child in

order to be safe. If it is at all possible, you should still consult

with an attorney before you leave. You may be able to obtain a

restraining order that includes temporary custody and permission to

remove the child from Massachusetts, as essential to the child’s being

safe.

Does the removal law that requires getting permission apply to all children?

No. The removal law requires getting permission if the child was born

in Massachusetts or has lived in Massachusetts for five years, if the

child is not old enough to give his or her consent, and if a probate

and family court has jurisdiction (that is, authority) to make a

custody decision about that particular child. The court has

jurisdiction if you are currently involved in any case concerning the

child. Such cases include divorce, paternity, and support

cases. The court also may have jurisdiction if you were involved

in such a case in the past.

If I do ask a judge for permission to remove my child from Massachusetts, what do I need to show?

You need to show the judge that the move is in your child’s “best

interests”. In order to show that the move is in your child’s best

interests, you must first show that you have a good and sincere reason

for moving and that your reason for moving is not to keep the other

parent from having contact with the child.

You must also show that the move is in the child’s best interests

taking into account all legally relevant factors: whether the child’s

quality of life may be improved; whether the custodial parent’s quality

of life may be improved; the possible effect of reducing or eliminating

the child’s relationship with the non-custodial parent; how moving or

not moving will effect the emotional, physical, or developmental needs

of the child.

Under Massachusetts law, no one of those factors is controlling. The judge considers all of the factors, together.

What can happen if I remove my child from Massachusetts without getting permission from the other parent or a judge?

If you remove your child from Massachusetts without getting required

permission or consent, a Massachusetts court may still have

“jurisdiction”, that is, authority, to make binding decisions about

custody of the child. That means that a Massachusetts judge may

conduct hearings about the lawfulness of the removal and about which

parent should have custody, even in your absence. A court in a

state to which you have removed a child unlawfully may be required to

enforce a custody decision by a Massachusetts judge.


If you are unsure about whether your situation requires getting

consent from the other parent or whether you need to get permission

from a judge, you should consult an attorney.

470 Washington Street, Norwood, MA 02062 | P.O. Box 1154, Newport, RI 02840 | T. 617.284.3804. | F. 617.507.5852 | cynthia@maccauslandlaw.com