Wednesday, August 2, 2006

Case Law Development: Massachusetts Supreme Court Denies Relocation of Parent who has Joint Custody of Child

The Massachusetts Supreme Court upholds a trial court's denial of a mother's relocation in a case in which the parents had joint physical and legal custody.  Massachusetts provides that children may be removed from the commonwealth only with the consent of both parents or "upon cause shown," meaning a showing that removal is in the children's best interests. 

The case is a prime example of the difficulties of relocation cases.  Father and Mother shared roughly equal custody of their two children.  Both had remarried.  Father had moved to New Hampshire, about 17 miles away.  "The mother objected privately but had little advance notice of the move and did not file suit to prevent it."  Some weeks after father's notice to move, Mother gave notice of her intent to relocate with her new husband, his two children and their newborn, to New Hampshire, where mother's parents live.  Father objected and each parent filed for sole custody.

The trial court denied Mother's requested relocation and ruled that the joint custody arrangement should continue.  Among the factors the court considered where the special educational needs of the older child, which the judge found would be better served by continuing to attend the private school in Massachusetts, that allegations by the children that they had been abused by one of their stepsiblings weighed against increased time in the mother's household; that uprooting the children would be detrimental to their interests; that the move would cause a reduction of the father's parenting time that would not be in the children's interests; and that there was insufficient evidence of financial imperative to justify the mother's move to Bristol.  The court rejected the GAL's recommendation in favor of the relocation. 

The Supreme Court of Massachusetts held that the trial court's decision was not an abuse of discretion.  The court cited a number of authorities from other states, and a number of law review articles on the subject, along with the ALI Principles.  The court observed that:

Where physical custody is shared, the "best interest" calculus pertaining to removal is appreciably different from those situations that involve sole physical custody...  Where physical custody is shared, a judge's willingness to elevate one parent's interest in relocating freely with the children is often diminished... No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and respon-sibilities with respect to the children. The importance to the children of one parent's advantage in relocating outside the Commonwealth is greatly reduced.

Mason v. Coleman, 447 Mass. 177; 850 N.E.2d 513 (Modified Opinion July 27, 2006)
Opinion on web (last visited August 1, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/08/case_law_develo_1.html

Custody (parenting plans) | Permalink

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