We live in mobile society where it is common for a family to re-locate from one state to another, across the country, or even to a different country with ease. Moves become much more difficult and complex in a family that has experienced a divorce, or where the parents do not reside in the same household. When one parent seeks to remove the child from the Commonwealth of Massachusetts to another area of the United States or even to another country, and where the other parent does not agree with the move, the Probate and Family Courts of the Commonwealth must get involved. The parent seeking to move with the child must file a “removal action" with the appropriate division of the Probate and Family Court.
Massachusetts General Law Chapter 208, Section 30 directly addresses removal of children from the Commonwealth. It states that if a minor child who is a native of or has resided in Massachusetts and whose custody and maintenance is under the jurisdiction of the Probate Court, the child shall not be removed from the Commonwealth without the consent of both parents. Further, the issue of removal has been fairly well litigated in Massachusetts case law. Up until recently, there was only one standard to be applied when considering the issue of removal. That standard was found in the case of Yannas vs. Frondistou-Yannis, 395 Mass 704 (1985). However, in 2006, the Court added another standard for removal cases in Mason vs. Coleman, 447 Mass 177 (2006). The Mason case made it clear that in Massachusetts the label you apply to custody really matters if removal becomes an issue in the future. In effect, the Mason case made the best interest of the child the only standard to be applied in cases where the parties had shared legal and shared physical custody of a child.
Back in 1985, the Yannis Court considered a matter where the parents had shared legal custody but the mother had physical custody of the children. The Court stated that the test for removal is two pronged. The first prong is the “real advantage test". The second prong applies the “best interest of the child" standard. If the parent could show a good, sincere motivation for the move, then the Court could consider whether the move would be in the best interest of the child. A good sincere reason to move could be that the custodial parent would be benefited emotionally, economically, socially, and/or have better access to family. The reason for the move couldnot be to deprive the noncustodial parent of visitation. If a Judge found a good sincere reason to move, then he or she would consider if the move was in the best interest of the child. The best interest calculus includes the effect of the move on the relationship of the child with the other parent and siblings, extended family, education, and general welfare. Yannis test was applied in all removal cases until 2006 when the Mason case was decided.
The test in the Mason case applies only to cases where the parties have shared legal and shared physical custody. The first prong of the Yannis test is no longer considered in cases where the parties share physical custody. The only test that applies is the “best interest test." “Where physical custody is shared, a Judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished." Mason at 184.
The Mason case was very careful to define the nature of “true" joint custody. It stated that “shared legal custody carries mutual responsibility and involvement by both parents in major decisions regarding the child’s welfare including matters of education, medical care and emotional, moral and religious development," Mason at 181-182, citing Massachusetts General Law Chapter 208, Section 31. Shared physical custody carries with it a substantial obligation for cooperation between the parents. “Such an arrangement, by its nature, involves shared commitment to coordinate extensively a variety of the details of everyday life." Mason at page 182. The Court pointed out that “it is incumbent on a parent who has been awarded joint physical custody to recognize that the viability of the endeavor is dependent on his or her ability and willingness to subordinate personal preferences to make the relationship work. Mason at 183. The Court took pains to emphasize that in a true shared legal and physical custody arrangement, neither parent is elevated above the other nor the needs of either parent will be put above the other when making considerations in removal cases. The emphasis in a Mason type case is to “favor protection of the child’s relationships with both parents because both are, in a real sense, primary to the child’s development." Mason at page 185. In effect, the Mason case made the task of drafting custody provisions, negotiating settlements, and trying cases much more nuanced for family law practitioners handling removal cases.
The practice of domestic relations law post-Mason is much more “label conscious" then in years previous. In the past, the majority of custody agreements gave legal custody to both parents and primary physical placement to one parent (usually the mother) with visitation to the other. Pre-Mason, a label was simply just that, a way to identify day to day workings of a custody arrangement. Now, the label given to custody or the amount of custodial time allotted to each parent dictates what test will be applied in the case of a removal petition. While this is a fairly esoteric legal point, it has very practical ramifications on litigants finding themselves embattled in a removal case. Again, with the level of mobility in our society, removal cases are becoming more and more common.
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