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Removal of Children from the Commonwealth

Posted on July 8, 2009 by Gail Otis

After a divorce judgment has been entered in a case, the children of the couple remain subject to the authority of the court so long as they live in the Commonwealth. Because of this, when a custodial parent seeks to move out of the Commonwealth with the children, and cannot get consent from the other parent, the custodial parent must seek approval from the court in what is called a removal proceeding. In making its decision, the court will consider several factors in an attempt to determine whether removal of the children should be allowed.

In what has been called the real advantage standard, the judge is required to make two specific findings before a child may be removed from the state. First, the judge must find that the custodial parent has a legitimate and sincere reason for wanting to leave the state. The courts believe that the quality of life of children after divorce is intertwined with the well-being of the custodial parent and so the custodial parent's interests are relevant to the well-being of the children. In making the determination as to whether there is a sincere reason for the move, a judge may consider the social, emotional, and economic advantages to the parent. The custodial parent cannot be solely motivated by a goal of disrupting the non-custodial parent's relationship with his or her children. Mixed motives may be acceptable so long as the main reason is to improve the quality of life of the custodial parent and, thus, the children.

The judge must also determine that the move will be in the best interest of the children by considering whether their quality of life will be improved by the change, taking into account the possible adverse effects to the children's relationship with their non-custodial parent. The fact that visitation with the non-custodial parent will likely change is not a controlling factor in the determination but will be assessed in addition to the reasonableness of alternate forms of visitation. The negative effects of being away from one parent may be outweighed by the possibility of strengthening relationships with supportive relatives such as grandparents or aunts and uncles.

In the past the courts have considered that requests to move that are based on job offers, new marriages, or to be closer to family were, usually, a real advantage. Some non-custodial parents have sought a change in custody based on the custodial parent's request for removal. The Court has held, however, that the mere fact that a request for removal has been made is not, itself, sufficient reason to change custody. The non-custodial parent seeking a change in custody must show a material and substantial change in circumstances aside from the other parent's request to move.

If you are seeking to remove your children from the Commonwealth, or if the other parent is seeking to do so, you should consult a family law attorney.

Written by Vanessa St. Leger, NUSL 2010, who is enjoying a co-op in family law with Otis & Associates, P.C. this summer. Edited by Gail P. Otis, Esquire.

Custody Issues, Divorce, Removal Tags: custody, Divorce, relocation, Removal Comments (0) Trackbacks (0)

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