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Moving out of Massachusetts with your children

Produced by MLRI
Created September, 2006

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 you 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

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 MassLegalHelp
Created February 2019

How can I stop the other parent from taking our child out of the country?

If you think the other parent might take your child out of the country, you can ask the Probate and Family Court for an order that:

  • Forbids the other parent from leaving the United States with your child. And
  • Puts your child name on the federal Do Not Depart list.

If your child’s name is on the Do Not Depart list, when the Transportation Security Administration (TSA) scans your child’s passport at the airport, they will get an alert. And TSA will not let your child through security.

You should have a lawyer to help you ask for this court order. A lawyer can:

  • Show the judge why you need the order.
  • Explain the federal Do Not Depart list. And
  • Make sure TSA knows your child is on the Do Not Depart list.

 

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