Written by attorney Teresa M. Harkins La Vita

The Woodside case and removal of children from Massachusetts

In a divorce, it is not uncommon for one parent to request removal of children from the Commonwealth. Unless the parties agree, the Probate and Family Court will hear the case pursuant to G.L. c. 208, section 30. The Mass. Appeals Court recently discussed and analyzed the standard for removal of children from Mass. in C. Michael Woodside vs. Sharry A. Woodside, Mass. App. Ct., No. 10-P-149, slip op. (June 24, 2011).

In Woodside, the trial court allowed the wife to remove the parties' two children to Maine and ordered the husband to pay alimony. The husband appealed. He challenged the standard of removal used by the trial court judge, asserting that the "real advantage" test of Yannas v. Frondistou-Yannas, 395 Mass. 704 (1985), was not appropriate because the wife was not the sole physical custodian of the parties' children. The husband also argued that even if the "real advantage" test was appropriately used, the trial court judge reached the wrong conclusion in allowing removal.

The Appeals Court explained that there are two standards applied to removal cases. When one parent has sole physical custody of a child, the "real advantage" test is used. The first prong of this test is that the custodial parent has a sincere reason for wanting to relocate and the custodial parent is not trying to deprive the noncustodial parent of reasonable parenting time with the child. The second prong of this test is whether the removal is in the best interests of the child. When the parents share physical custody, the advantage of the move to the petitioning parent becomes only one factor in the overall consideration of the best interests of the child.

The parents' custodial arrangement will dictate which analysis will apply to a given removal case. In Woodside, the wife was found to be the primary custodian of the children. Thus, use of the "real advantage" test was appropriate. Moreover, the wife proved that relocating with the children would be a real advantage to her in employment prospects and being close to family in Maine. The wife was not relocating to deprive the husband of a relationship with his children, and in fact was found to be supportive of visitation. Lastly, the Appeals Court determined that removal would positively impact the emotional, physical, and developmental needs of the children partly due to the improvement in the quality of the wife's life by the relocation.

The Appeals Court affirmed the decision, allowing the wife to remove the children to Maine.

The information you obtain from this Legal Guide is not, nor is it intended to be, legal advice. This Legal Guide is for informational purposes only. If you need legal advice regarding your own situation, please consult an attorney.

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