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Moving out of Massachusetts with your children

Massachusetts has laws about moving out of state with your
children. Massachusetts laws refer to this as “removal” of the
child from the state. These removal laws deal with when a parent
must ask the other parent for consent to remove the child, and when, if
the other parent does not give consent, the parent who seeks to remove
the child must get permission from a judge.

When do I have to get permission to leave the state with my child?

If you are divorced,

there is a law about when you must get permission from the other
parent or a judge before you move away from Massachusetts with the
child.

If you are still married to the other parent,

but are not divorced and have not been to court, under Massachusetts
law you and your spouse share custody of the child. That means
that it is lawful for either parent to remove the child from the
state. Where the parents have not been to court for a custody
decision, however, even removing your child lawfully, without
permission, may contribute to the other (non-removing) parent being
awarded custody. That is because shared custody means that each
parent is entitled to share in making important decisions about the
child’s welfare. Relocating to another state is an important decision
about a child’s welfare. Removing a child on your own, without the
agreement of a parent with whom you share custody or permission of a
judge, might violate the other parent’s shared custody rights and might
be seen by a judge as acting against the child’s best
interests. If you and your spouse cannot agree about whether the
child should be removed from Massachusetts, you probably should ask a
judge for permission.

If you were never married to the other parent,

and even if
you have custody of the child, you might still be well-advised to seek
the other parent’s agreement or permission from a judge if there is no
agreement. Even though there is no clear legal requirement about
getting permission as there is for divorced parents, Massachusetts law
says that “Children born to parents who are not married to each other
shall be entitled to the rights and protections of the law as all other
children.”

If you are a victim of domestic violence,

you may need to
leave the state quickly, or at least your area, with your child in
order to be safe. If it is at all possible, you should still consult
with an attorney before you leave. You may be able to obtain a
restraining order that includes temporary custody and permission to
remove the child from Massachusetts, as essential to the child’s being
safe.

Does the removal law that requires getting permission apply to all children?

No. The removal law requires getting permission if the child was born
in Massachusetts or has lived in Massachusetts for five years, if the
child is not old enough to give his or her consent, and if a probate
and family court has jurisdiction (that is, authority) to make a
custody decision about that particular child. The court has
jurisdiction if you are currently involved in any case concerning the
child. Such cases include divorce, paternity, and support
cases. The court also may have jurisdiction if you were involved
in such a case in the past.

 

If I do ask a judge for permission to remove my child from Massachusetts, what do I need to show?

You need to show the judge that the move is in your child’s “best
interests”. In order to show that the move is in your child’s best
interests, you must first show that you have a good and sincere reason
for moving and that your reason for moving is not to keep the other
parent from having contact with the child.

 

You must also show that the move is in the child’s best interests
taking into account all legally relevant factors: whether the child’s
quality of life may be improved; whether the custodial parent’s quality
of life may be improved; the possible effect of reducing or eliminating
the child’s relationship with the non-custodial parent; how moving or
not moving will effect the emotional, physical, or developmental needs
of the child.

Under Massachusetts law, no one of those factors is controlling. The judge considers all of the factors, together.

What can happen if I remove my child from Massachusetts without getting permission from the other parent or a judge?

If you remove your child from Massachusetts without getting required
permission or consent, a Massachusetts court may still have
“jurisdiction”, that is, authority, to make binding decisions about
custody of the child. That means that a Massachusetts judge may
conduct hearings about the lawfulness of the removal and about which
parent should have custody, even in your absence. A court in a
state to which you have removed a child unlawfully may be required to
enforce a custody decision by a Massachusetts judge.

If you are unsure about whether your situation requires getting
consent from the other parent or whether you need to get permission
from a judge, you should consult an attorney.

Produced by MLRI
Created September, 2006

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