Category Archives: Custody

Think before you act.

Mother and father arguing in front of Christmas tree, children sitting in the corner

As the holiday season approaches please realize that your children did not ask to have families that live separate and apart. It is important to follow the court order, if you and your ex cannot agree otherwise. Ignoring the terms of a court order can be detrimental for the entire family.

When one parent decides to unilaterally change the terms of a court order, the child is often put in the middle of the situation, which usually escalates to a battle. Often the children are aware they are supposed to be going with the other parent and are disappointed, and sometimes think, they are being stood-up (creating hostility).

Boy with teddy bear and parents fighting

The parent who does not receive his/her parenting time often has plans that either needs to be changed or cancelled altogether. If they decide to continue with the plans (without their children) than very often every family member comments about the non-complying ex and their evil behaviors. These comments are often heard by the children at future family functions. The children become sad or angry with their family and/or either parent.

Whether the court order was decided either by an agreement of the parties or by a judge, someone decided that the schedule was in the best interest of your children. To simply disrupt the schedule because you decided is not in the best interest of the children.

While we all understand that the holidays are meaningful and important and you want your children with you, it cannot always be that way growing up in separate homes. That is just something you have to accept as a parent and try to consider the other parent and most importantly your children.

Assuming a parent breaches the court order then the party who lost the parenting time may seek a complaint for contempt. In that contempt action the non-complying party may be responsible to 1) provide additional parenting time, 2) loose parenting time at the next scheduled holiday, 3) be responsible for other parent attorney’s fees and costs, 4) loose custody of the children, and/or 5) be sentenced to the house of corrections.

Removal of children out of state

This is American and I can choose to live wherever I want to. I do not need the court to tell me where I can go and where I cannot. Refusal t allow me to move is violation of my Fifth and Fourteen amendments to the US Constitution. If I want to leave Massachusetts then I can, right?

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If you have children and the other parent wants to continue to live in Massachusetts and does not want you to take the children to another state permanently then the answer is not a simple one.

We are only minutes from the Connecticut border now so an extra five
minutes drive will not make any difference.

I have heard this statement so many times in my practice and the truth is that it does matter and it does matter a lot.

In most separation agreements (terms of the divorce), there is language that precludes one parent from permanently leaving the Commonwealth of Massachusetts without a court order or obtaining other parents’ permission. Even without that language in the separation agreements, Massachusetts General Laws, c. 208, § 30, states that children “shall not . . . be removed out of this commonwealth without such consent . . . without the consent of both parents, unless the court upon cause shown otherwise orders.”

In other words, both parents must agree or the court must approve the parent to take the children out of the Commonwealth. The reasoning behind this, in part, was to prevent a parent from alienating the other parent or prohibiting the child-parent relationship/bond.

If the other parent does consent then it is best to get it in writing, and whenever possible, to make it a court ordered modification.

There are different standards required by the parent in order to prove that they should be permitted to move out of the Commonwealth with their children. The most well known is based on the “Real Advantage” test as established in Yannas v. Frondistou-Yannas, 395 Mass. 704, 1985. While Yannas is an old case it is still good law and is applied in full, or in part, in removal cases. The real advantage test is a two-prong test and both prongs must be met in order for the court to allow removal.

“If the custodial parent establishes a good, sincere reason for wanting to remove to another jurisdiction, none of the relevant factors becomes controlling in deciding the best interests of the child, but rather they must be considered collectively. Every person, parent and child, has an interest to be considered. The judicial safeguard of those interests lies in careful and clear fact-finding and not in imposing heightened burdens of proof or in inequitably identifying constitutional rights in favor of one person against another.” Yannas 712-713.
When considering moving out of the Commonwealth with your children it is best to consult wt. an attorney months in advance to better understand the law and what a move would legally entail.

The Yannas case pertains when one parent is the custodian. In situation where the parents share custody, then Mason v. Coleman is more applicable. 447 Mass. 177 (2006). “Shared physical custody contemplates that ‘a child shall have periods of residing with and being under the supervision of each parent . . . assur[ing] . . . frequent and continued contact with both parents’.” G. L. c. 208, s. 31. The court must determine what is the child bets interst given all relevant factors.