In some divorces/post-divorce situations, one parent wants to move with the parties’ children to another state, or even another country. This is called “removal,” and requires either the permission of the other parent or the approval of the probate court. Removal is commonly driven by a new job or spouse, a desire to return to a previous hometown in which friends and extended family live, or a need to move to a more affordable location.
Massachusetts’ highest court recently released a new removal decision in the case of Miller v. Miller. For many years, we have had two standards for the court’s analysis of whether to allow removal: the “real advantage” standard under Yannas v. Frondistou-Yannas—where one parent has primary physical custody of the children—that slightly favors the custodial parent seeking removal; and the “best interests” standard under Mason v. Coleman—where the parties share physical custody (roughly, 50/50)—that puts the parties on equal footing. Until now, cases typically fell under one standard or the other, based on existing custody stipulations, orders, or judgments.
In Miller v. Miller, though, the Supreme Judicial Court has fine-tuned the law a bit. From now on, probate courts must perform a “functional analysis.” This means that, regardless of whether there is a stipulation, temporary order, or judgment in place that details the custody arrangement and parenting schedule, the judge must look at what the reality is. What are the facts? Are the parties abiding by the stipulation, order, or judgment? Is the “non-custodial” parent actually doing 45%, or 65%, of the parenting?
Removal cases necessarily involve some heartache, especially for a non-custodial parent. If removal is allowed, that parent will likely see the children much less often, but for larger blocks of time, such as most three-day weekends, most school vacation weeks, and most of the summer. Expensive travel may be involved. And there is a big difference between having your children move to Rhode Island, and having them move to Oregon or Japan.
The best way to seek or oppose removal is to plan well in advance. Discuss this possibility with your lawyer. If you are considering seeking removal, or are concerned that your children’s other parent will seek removal, meet with your counsel early to understand what factors can or will affect the outcome. Your behavior and attitude during litigation will be significant factors.