February '02 - Leaving Town

Sometimes after a divorce one of the parties may wish to move out of state.  The reason may be to move back home, a job opportunity came up, or maybe they just need a change of scene.  Whatever the reason, a problem arises when he or she has physical custody of the children.  Massachusetts has a law which prevents you from moving out-of-state with your kids unless the other parent consents, or you can convince the court that there is good cause for the move.

So how do you convince the court?  There is a two-step test you have to pass.  First is the Real Advantage test.  Under this, you must show that your reason for moving is that it will be a real advantage to you.  For example, if you are moving to attend college, that is a real advantage.  By contrast, if you are moving to "find yourself", you will more likely "find yourself" without your kids. 

Once you have shown that your motives for moving are genuine, (and not just to spite your ex), you must then pass the second test, known as the Best Interests standard.  Here, you must prove to the court that the move will be in your children's best interest.  Examples the court looks at are what they will have for housing, education, social activities, a religious environment, and  contact with extended family members.  It is very important to show the court you have planned for all these contingencies before your move.

Under the second test, you can expect the other parent to raise the following objection to your move:  "Your Honor, this move would not be in the best interests of my child because it would seriously impair his visitations with me."  This is certainly a valid argument.  A cross-country move would require weekly visits to become semi-annual visits.  But the courts have considered this argument at length and have concluded that it alone is not a controlling factor.  To them, fewer visits of longer duration are a workable solution to the problem. 

A final point to consider is the actual length of the move.  A move from Boston to Providence will certainly be more favorably considered than a move from Boston to San Diego.  But regardless of where you are moving, make sure you have your motives and the consequences to the children outlined for the court's consideration.