Rhode Island and Massachusetts Standards for Relocation/Removal of Children

Rhode Island and Massachusetts Standards for Relocation/Removal of Children

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In Child Custody, Divorce and Child Support
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  1. RHODE ISLAND STANDARDS FOR RELOCATION/REMOVAL OF CHILDREN

      In Rhode Island, child-relocation custody disputes are decided in accordance with the Rhode Island Supreme Court decision of Dupré v. Dupré, 857 A.2d 242, 257-60 (R.I.2004). In Dupré, the Rhode Island Supreme Court identified relevant factors for the Family Court to consider in child-relocation custody disputes, these non-exhaustive factors incorporated, are as follows:

  1. The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the non-relocating parent.
  2. The reasonable likelihood that the relocation will enhance the general quality of life for both the child and the parent seeking the relocation, including, but not limited to, economic and emotional benefits, and educational opportunities.
  3. The probable impact that the relocation will have on the child’s physical, educational, and emotional development. Any special needs of the child should also be taken into account in considering this factor.
  4. The feasibility of preserving the relationship between the non-relocating parent and child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
  5. The existence of extended family or other support systems available to the child in both locations.
  6. Each parent’s reasons for seeking or opposing the relocation.
  7. In cases of international relocation, the question of whether the country to which the child is to be relocated is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction will be an important consideration.
  8. To the extent that they may be relevant to the relocation inquiry, the Pettinato factors also will be significant.
    1. The wishes of the child’s parent or parents regarding the child’s custody.
    2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
    3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.
    4. The child’s adjustment to the child’s home, school, and community.
    5. The mental and physical health of all individuals involved.
    6. The stability of the child’s home environment.
    7. The moral fitness of the child’s parents.
    8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

                See Pettinato v. Pettinato, 582 A.2d 909 at 913-14 (R.I. 1990).

       If the Relocation decision is made as part of the divorce or initial custody proceedings, both parents share an equal burden of demonstrating with which parent the child’s interests will be best served. If the Relocation decision is part of a post- final judgment proceeding, then the moving party would bear the burden of showing by a preponderance of evidence that “the conditions or circumstances existing at the time the decree was entered have so changed that it should be modified in the interest of the child’s welfare.” See McDonough v. McDonough,  962 A.2d 47, 52 -53 (R.I. 2009)

       II. MASSACHUSETTS STANDARDS FOR RELOCATION/REMOVAL OF CHILDREN

       MGL 208 § 30, provides as follows:

       A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purposes of this and the two preceding sections.

Under Massachusetts law, there are two different standards that apply to a Complaint requesting a child’s removal/relocation:

  1. The “Real Advantage” Test. This standard applies when the moving party had been awarded sole physical custody or has a clear majority of custodial responsibility:
    • “The court should allow a parent who has been exercising the clear majority of custodial responsibility to relocate with the child if that parent shows that the relocation is for a valid purpose, in good faith, and to a location that is reasonable in light of the purpose” See Yannas v. Frondistou-Yannas, 395 Mass. 704, 705, 706, 711, 481 N.E.2d 1153 (1985) (parents had “joint legal custody,” but mother had “physical custody”). Cf. Principles of the Law of Family Dissolution, supra at § 2.17(4)(a)
    • Under the real advantage test, “[s]hould it be found that there is a genuine, recognizable advantage to the custodial parent from the move, the inquiry then turns to whether the move is consistent with the children’s best interests. It is important to emphasize that consideration of the advantages to the custodial parent does not disappear, but instead remains a significant factor in the equation.” Pizzino v. Miller, 67 Mass.App.Ct. at 870, 858 N.E.2d 1112” Abbott v. Virusso, 68 Mass.App.Ct. 326, 330-331, 862 N.E.2d 52, 56 (Mass. App. Ct. 2007)
    • Under the real advantage test, the first step is determine whether there is a good, sincere reason to move.  “[T]he first consideration [in the process of determining the best interests of a child] is whether there is a good reason for the move, a ‘real advantage.’ ” Yannas v. Frondistou-Yannas, supra at 711, 481 N.E.2d 1153. This requires that the custodial parent establish “a good, sincere reason for wanting to remove to another jurisdiction.” Ibid. The judge must consider both “the soundness of the reason for moving, and the presence or absence of a motive to deprive the noncustodial parent of reasonable visitation.” Ibid. See Rosenthal v. Maney, 51 Mass.App.Ct. 257, 267, 745 N.E.2d 350 (2001).” Abbott v. Virusso, 68 Mass.App.Ct. 326, 330-331, 862 N.E.2d 52, 56 (Mass. App. Ct. 2007)
    • Under the real advantage test, the second step is to determine whether the proposed move is in the best interest of the children. “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.” Yannas v. Frondistou-Yannas, 395 Mass. at 711-712, 481 N.E.2d 1153. Rosenthal v. Maney, 51 Mass.App.Ct. at 267-268, 745 N.E.2d 350. “[B]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child’s best interest requires that the interests of the custodial parent be taken into account.” Yannas v. Frondistou-Yannas, supra at 710, 481 N.E.2d 1153, quoting from Cooper v. Cooper, 99 N.J. 42, 54, 491 A.2d 606 (1984). See Hale v. Hale, 12 Mass.App.Ct. 812, 815, 429 N.E.2d 340 (1981); Rosenthal v. Maney, supra at 266, 745 N.E.2d 350. At this second stage, “[e]very person, parent and child, has an interest to be considered.” Yannas v. Frondistou-Yannas, supra at 712, 481 N.E.2d 1153. Abbott v. Virusso, 68 Mass.App.Ct. 326, 332, 862 N.E.2d 52, 57 (Mass. App.Ct.2007);
  2. On a Complaint for Removal where parties have joint physical custody or share equally in custodial responsibility, the “real advantage” test does not apply and standard is whether move is in best interests of the child:
    • “Where physical custody is shared, the “best interest” calculus pertaining to removal is appreciably different from those situations that involve sole physical custody. American Law Institute’s (ALI) Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.17(1), (4)(c) (2002). See In re Marriage of Burgess, 13 Cal.4th 25, 40 n. 12, 51 Cal.Rptr.2d 444, 913 P.2d 473 (1996); In re Marriage of Francis, 919 P.2d 776, 786 n. 12 (Colo.1996), overruled in part on other grounds, In re Marriage of Ciesluk, 113 P.3d 135, 138 (Colo.2005); Baures v. Lewis, 167 N.J. 91, 116, 770 A.2d 214 (2001). See also Richards, Children’s Rights v. Parents’ Rights: A Proposed Solution to the Custodial Relocation Conundrum, 29 N.M. L.Rev. 245, 264 (1999) (removal standard should differentiate between cases involving primary residential parent and those involving shared physical custody).” Mason v. Coleman, 447 Mass. 177, 184–86, 850 N.E.2d 513, 518–20 (2006).
    • “Where physical custody is shared, a judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished. Terry, Relocation: Moving Forward, or Moving Backward?, 15 J. Am. Acad. Matrimonial Law. 167, 212–213 (1998). No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and responsibilities with respect to the children. The importance to the children of one parent’s advantage in relocating outside the Commonwealth is greatly reduced. See Wallerstein, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 318 (1996) (“a parent with true joint physical custody proposing a move should be required to prove that [relocation] is in the best interest of the child, and not merely desired by the moving parent”). ALI Principles of the Law of Family Dissolution, supra at § 2.17(1), (4)(c) (see note 10, supra), recently adopted by the ALI, supports the view that where “neither parent has been exercising a clear majority of custodial responsibility,” the effect of the relocation on the child is a “relevant factor[ ]” in determining the child’s best interests.” Mason v. Coleman, 447 Mass. 177, 184–86, 850 N.E.2d 513, 518–20 (2006)
    • “Where physical custody is shared and neither parent has a clear majority of custodial responsibility, the child’s interests will typically “favor protection of the child’s relationships with both parents because both are, in a real sense, primary to the child’s development.” Wallerstein, supra at 318. Distant relocation often impedes “frequent and continued contact” with the remaining joint custodian. See G.L. c. 208, § 31; Kindregan, Family Interests in Competition: Relocation and Visitation, 36 Suffolk U.L.Rev. 31, 36 (2002) (Kindregan). Cf. In re Marriage of Seagondollar, 139 Cal.App.4th 1116, 1119, 43 Cal.Rptr.3d 575 (2006) (removal from California “necessarily interferes with the other parent’s ability to have frequent and continuing contact with” children).” Mason v. Coleman, 447 Mass. 177, 184–86, 850 N.E.2d 513, 518–20 (2006).
    • “Joint physical custody need not necessarily be impeded by relocation outside the Commonwealth. In some cases, distance between the parents may not greatly increase as a result of removal. In addition, there are significant differences in the individual tolerances of the custodians and the children. Wallerstein, supra at 320 (“Travel plans and arrangements should be tailored to the age, temperament, and wishes of the child”). Cf. Kindregan, supra at 53 (shuttling of children between households “by air, bus, or rail … extremely disruptive of the child’s social life and development”). It is a question for a judge, taking into account all of the facts, whether an increase in travel time between households and schools brought about by removal, and other burdens of distance, will significantly impair either parent’s ability to exercise existing responsibilities, and ultimately whether removal is in a child’s best interests.”Mason v. Coleman, 447 Mass. 177, 184–86, 850 N.E.2d 513, 518–20 (2006):
    • In deciding the applicable removal standard, either under the “real advantage” or “best interest” analysis, where there is no custody order the judge must first evaluate the parties’ custodial arrangement and determine whether it more closely resembles sole or shared custody. Miller v. Miller, No. SJC-12298, 2018 WL 387970 (Mass. Jan. 12, 2018)