How Far Can I Move with Joint Custody?

You need a fresh start. And there’s a great opportunity available for you. But you’d have to move. And the problem is that you share custody of your kids with your ex. How should you go about planning this?

“Removal” is when a parent wants to move with children from MA to another state. We’ll cover what the legal standard is for such a move when parents have joint custody and how best to plan for it.

First, it’s important to understand that a parent cannot legally move out of state with a child without either agreement from the other parent or a court order - regardless of whether you have sole or joint custody.

Although removal law doesn’t technically apply to intra-state moves (e.g. from Eastern to Western MA), if the move would result in a significant change in the parenting arrangement, the issue is likely to receive a similar analysis.

On the issue of removal, the court considers several factors: the child-care responsibilities and involvement of each parent, the distance between the children’s current home and the proposed new location, education, the motive of the moving parent, employment opportunities for the moving parent, location of other family members of the children, how the move will affect the emotional, physical or developmental needs of the children, social advantages to the children, availability of contact with both parents, home environments of the children, and effects of increased travel, among other factors.

Although the above factors are considered in every case, there are different legal standards for the move depending on your custody arrangement. By custody, I’m referring to “physical” custody, which is about the parenting time breakdown. A parent has “sole” custody of the children when that parent has the children approximately 2/3 of the time. This is different than “legal custody, which is about which parent makes the major decisions for the child, for example on issues of health care and schooling.

When a parent has shared physical custody of the children, that generally means the parents have an approximately equal amount of parenting time. When that’s the arrangement, and a parent wants to move out-of-state with the children, the burden is higher than if the moving parent had sole custody.

Let’s examine in more detail the different legal standards for an out-of-state move in sole v. shared custody cases.

When a parent has sole custody, the court considers whether there’s a “real advantage” to the primary care parent in moving. In other words, if the move significantly benefits that parent, the court reasons that the benefit to the parent trickles down to the children because their interests are heavily intertwined. Although the court also considers the “best interest” of the child, a “real advantage” to the primary care parent can carry significant weight.

However, in a shared custody arrangement, the moving parent has to show that the move is in the “best interest” of the children. In these cases, the court does not attach significant weight to how the move benefits the moving parent.

What happens when the parenting time is 60/40? Then the court must determine whether the arrangement is more consistent with shared or sole custody and use the corresponding standard.

As a practical matter, regardless of the exact parenting time breakdown, the court should examine each parents’ caretaking role and connection to the children. Where the bond is stronger between the children and the moving parent as compared to the other parent, the moving parents’ personal interest in moving is more significant. But where parenting responsibility is shared and the children are significantly and approximately equally bonded to both parents, the burden should be - and is - higher for the moving parent to justify the move.

Of course, law evolves. I’m writing this in February, 2019, and the MA Supreme Court or the legislature may change this legal analysis in the future. But for now, if you have shared custody of your children and you want to move to another state, your evidentiary burden is higher than if you had sole custody, and the move has to be in the children’s best interest based on the factors above - without too much regard to how it benefits you individually.

If you have any questions about removal, feel free to contact our office.

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