If a parent wants to move a child's residence out of the country, then the same laws apply as when the parent wants to move to another state, though the evaluation by the Court may be slightly different. The removal statute is discussed at length in our previous blog: What do I do if my ex wants to move out of state with our child?.

If you are afraid that the other parent may remove the child illegally and once the child is out of the country it may be difficult to get them back, then there is still something you can do. The U.S. Department of State has a website entitled Child Abduction Prevention with many useful tips including:

1. Be aware of your state's laws relating to removing the child from your state against the other parent's wishes. This is a crime in most states and may also be a federal crime.

2. Obtain a custody order that clearly defines both your and the other parent's rights relating to the child and any limitations on those rights.

3. Be aware of U.S. Passport law, which requires the signature of both parents to obtain a passport for a child. If you are concerned that your ex might try to obtain a passport without your signature or with a forged signature, then you should apply to The Children's Passport Issuance Alert Program. You can obtain the entry form by clicking here.

4. If your child already has a passport you can ask the Court to require its surrender.


Thank you to Robert P. Schneiders, Esq. of Canton, MA for forwarding us this information on The Children's Passport Issuance Alert Program.

In Massachusetts, M.G.L. c. 208 Section 30: Minor Children; Removal from Commonwealth; Prohibition states that a child who the Massachusetts' probate courts have jurisdiction over shall not be removed from the Commonwealth without consent of both parents or Order of the Court. This statute does not apply to vacations; generally the term "removal" refers to a change of residence.

If one parent unilaterally moves out of state with the child without the permission of the other parent and without an Order of the Court, then you must act immediately to force the return of the child. If the child resides out of state for more than six (6) months then under the laws of most states (most states having enacted the Uniform Child Custody Jurisdiction and Enforcement Act, or some variation of it), that other state will now be the "home state" and have jurisdiction over the child. You should consult with an attorney about the appropriate action to bring before a Court in order to obtain an order requiring the child to be returned (which will then have to be brought to the other state and enforced, through the use of law enforcement if necessary).

If both parents do not agree to allowing one parent to move with the child to a different state, then the parent that wants to move is required to file a Petition for Removal. If the Court has already ruled on the custody of the minor child, in a Paternity or Divorce judgment, then this it typically done with the filing of a Complaint for Modification.

The standard for approval of a request for Removal is actually a two-part test as defined in the landmark case Yannas v. Fronditsou-Yannas, 395 Mass. 704 (1985). The Court in Yannas created a two-part test:

First, the parent requesting removal must first show the court that there is a "good, sincere reason" for the move. This is often described as the "real advantage test." Examples of acceptable "good, sincere reasons" are a lucrative job opportunity, significantly greater family support, or a new spouse who resides in another state. In Pizzino v. Miller, 67 Mass. App. Ct. 865 (2006) the Court found that "a sincere desire to be with a spouse is, per se, a good and sufficient reason".

The second part of the test requires the Court to evaluate whether the move is in the best interest of the minor children. Typically if the first part of the test is meant, the "real advantage" likely carries over and demonstrates that the move is also in the best interest of the minor child. Meeting the second part of the test may be more difficult, however, in the case where both parents are significantly involved in the minor child's life, such as when there is a joint physical custody arrangement.

On April 7, 2010, the Chief Justice of the Probate and Family Courts in Massachusetts, Paula M. Carey, signed Standing Order 1-10: Special Procedures for Cases Involving Children. That order sets out the details for a pilot program in the Hampshire Division of the Probate and Family Court. The pilot program is intended to provide special services and requirements related to the resolution of child-related issues in any case involving children (such as Divorce, Separate Support, Paternity, Support/Custody/Visitation, Modification, Contempt, Guardianship and Termination of Parental Rights cases).

The order requires, among other things, that attorneys and parents/care-givers attempt to solve parenting related problems before seeking the assistance of the court, and to conduct themselves in a way that recognizes the unique issues involved in child-related cases.

More specifically, the order requires that parties and their attorneys participate in an "Introductory Meeting", no later than 45 days after the filing of Answer and/or prior to any Motion hearing. Essentially, the court is requiring a 4-way (similar to that required prior to a Pre-Trial) to try and force parties to work out parenting issues prior to presenting them to the Court.

The order also encourages people to seek the assistance of other professionals as necessary to assist in the proper development of parenting and care-giver plans.

These requirements will increase initial attorney's fees and costs to clients. The benefits to the children, however, could be substantial by focusing early on how a court case (such as a divorce case) affects the children, and trying to address these issues early.

For further information on this program, its origins and its goals readThe Origins of a Child Focused Family Court Model. written by Gail L. Perlman, the First Justice of the Hampshire Division of the Massachusetts Probate and Family Court. The article is available on page 3 of the Spring 2010 issue of the Family Mediation Quarterly.

The most common reason for divorcing spouses to continue living in the same house is because neither wants to leave their children behind. When a parent leaves the home and moves to another location without an agreement for parenting plan in place, they are essentially ceding physical custody to the other parent. Physical custody is simply defined as who the children reside with and unless there is a plan in place, if only one parent lives in the children's home, then that parent necessarily has physical custody (it is possible for a parent to move out with the children, but this is unusual except in cases of abuse).

While many parents will fight over who can remain in the home during this time period, this argument is a distraction from the reality that eventually divorcing spouses will live separate and apart. It makes more sense for the spouse who will eventually move to begin investigating their other options as soon as possible, and for parents to work out a realistic parenting plan prior to that move. Rather than use this argument as a ploy to fight over the children, discussing practical resolutions will focus both parents on how much time each will spend with their child instead of focusing on what they are losing. Divorce will never leave each person whole, but to the greatest extent possible parents should strive to keep their children from getting caught in the middle of any disputes.

A Caregiver Authorization is an alternative to going to court for a guardianship of a minor. It is a form that allows a parent to give a Caregiver the power to make medical and education decisions for a child. A Caregiver is someone the child lives with who is not a parent.

A Caregiver Authorization is different from a Guardianship in a few major ways:

1. It does not give the Caregiver custody of the child, only the right to make decisions.

2. It does not take away any powers from the parents, and the parents retain final decision making authority.

3. A Caregiver Authorization can be revoked by a parent via letter to the caregiver.

A Caregiver Authorization is good for two years or until a parent revokes it.

For more information regarding why you would use a Caregiver Authorization and how to complete it read the Massachusetts Caregiver Instructions provided by the Court.

Click here to obtain the Caregiver Authorization Form.

In our previous post we explained what a parent coordinator is.

But it's also important to point out that Parent Coordinators cannot solve all of your problems, especially if you're not willing to work with them.

Parent Coordinators are NOT Therapists. They are not hired to help you deal with your personal issues, but rather for the specific purpose of helping you learn to co-parent effectively.

Parent Coordinators are NOT Couples Therapists. They are also not hired to help you "fix" or understand your relationship with your ex. Their job is to help you help your children by learning to communicate better.

Parent Coordinators are NOT Mediators. While some of what they do is similar to mediation, you're not trying to reach an agreement on a specific issue. One specific issue may result in your calling the coordinator, but long term the process is not about mediating one issue, but learning how to resolve all parenting issues more civilly.

Parent Coordinators are NOT Judges. Sometimes a parent coordinator will make a decision similar to a Judge if the parties have agreed to give them that authority. However, any decision is only binding until reviewed by the Court. And the use of this power is unusual because it defeats the goal of having the parents begin to work these issues out together rather than always seeking outside help.

Parent Coordinators are NOT Guardian Ad Litems. A Guardian At Litem reports to the Court on issues such as custody, after an investigation. It is not the job of a Parent Coordinator to report to the Court or to take sides.

According to the Guidelines for Parenting Coordination developed by the AFCC Task Force on Parenting Coordination:

"Parenting coordination is a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."

In other words, a Parent Coordinator helps parents avoid court by mediating their co-parenting disagreements.

Although some states have statutes that define Parent Coordinator's powers, in Massachusetts there is no statutory authority for parenting coordination. Judges differ on whether they have authority to order Parent Coordinators without a statute granting them that authority. Arguably the discretion afforded Judges to create orders for the best interest of the children could be extended to order the parents to cooperate with a parent coordinator. In all cases, though, Judges can affirm an agreement of the parties to use a parent coordinator.

This type of agreement is often recommended by attorneys in high conflict cases as a potential solution to avoiding multiple court hearings. In many instances a parent coordinator can be cheaper than going back to court again and again, and more effective because they not only assist with the immediate problem but help parents learn how to communicate with each other. If successful, the parents will no longer need the assistance of the court or eventually even the parent coordinator to help them co-parent effectively.

In Tuesday's New York Times, there was an article entitled "Losing Fatherhood" that explores how DNA testing has changed the face of Fatherhood in America. It's an interesting read and raises the question of what does it really mean to be a Father.

Last night on the ABC comedy the Modern Family, the patriarch played by Ed O'Neill (of Al Bundy fame) states that "90% of being a Father is just showing up."

In Modern Family Ed O'Neill's character, Jay Pritchett, has an adult gay son who is in a couple and has an adopted daughter, and an adult daughter who is married with three children as well. In addition, Jay Pritchett has re-married to a younger woman and has a step-son. Although there are three distinct families in the show, all with different "father figures", they are all tied together by their relationship to Jay.

In last night's episode (available online here) Jay plays the role of grand-father, father and step-father and in all of these interactions, Jay shows what it means to be a Father. By just "showing up" he is not perfect, but he is involved, protective and loving. This is especially obvious in the show when his step-son's biological father fails to show up for a visitation.

For me, this show highlights the fact that whether or not a family is "traditional" or "non-traditional" we can all still tell the difference parents can make in a family by being involved and at least "showing-up."

According to a 12 year study by Dr. Robert E. Emery, Ph.D., a Professor of Psychology and Director of the Center for Children, Families, and the Law at the University of Virginia, Mediation can have a dramatic impact on children of divorce and their relationship with a non-residential parent. Dr. Emery summarizes his findings in the recent issue of the Family Mediation Quarterly.

The study used a coin-flip to decide whether high-conflict custody cases would try a short-term (five hour average) mediation. The results of only five hours of mediation were amazing, especially with relation to the children.

Twelve years after the average divorce in America, nonresident parents saw their children weekly in only 11% of cases. In the cases where the parties tried mediation based solely on a coin-flip 28% of nonresident parents saw their children weekly after 12 years. This is a significant difference and the difference is even more significant with reference to telephone contact (weekly telephone contact: national average 18% & mediation average 52%).

To see how these effects extended to other parental involvmenet as well (school, discipline, religous upbringing, etc.) check out the article on the MCFM's website here.

Even in high conflict cases these results suggest that just giving mediation a try can be beneficial to your child's relationship with their parents and therefore beneficial to your child's health. Tough statistics to ignore if you care about your children.

To schedule a 1-Hour Free Mediation Consultation with Kelsey & Trask, P.C. call 508.655.5980 or e-mail us.

A recent Op-ed article in the New York times, entitled No Fault of Their Own, suggests that we should change the way custody decisions are made to minimize litigation and fighting over children. The author notes that custody battles, that leave the issue of what is in "the best interest of the child" to the Judge to decide, often result in trials over who is the "better" parent.

This is a valid point. The damage that these types of battles can cause to children warrants a different approach to family law than to the practice of other types of law. While zealous advocacy for a corporate client whose vendor screwed them on a contract might necessitate a trial or dictate destructive cross-examination, in family law this type of litigious approach hurts children.

I often explain to my clients that it is not constructive when they form their view or their goals in a divorce case with a negative comment about their ex-spouse. I want my clients to tell me what their life looks like in five years, so together we can figure out how to get them to that goal, not what they "deserve" to receive from their ex-spouse. I believe this is the point of no-fault divorce.

Similarly, I like the concept of No-Fault custody. I want my clients to tell me what is best for their children, by telling me about their children's schedules, and activities and friends. Telling me what a bad parent the other person is, doesn't describe what is best for the child. In fact it's simply a waste of time unless that parent is so bad that they are unfit.

The author of the op-ed article concludes that mandatory mediation or amendments to the way child support is calculated could help move the system towards No-Fault custody. I believe that regardless of whether couples mediate, or what the child support is, common-sense is the key to resolving custody battles. 99% of custody disputes can be solved by parents, and attorneys, who are willing to set aside the fight, participating in an open an honest four-way conference (with or without a mediator) about what is actually best for the child with reference to the child's needs and activities and schedule.

I don't know if No-Fault Custody is something the state can legislate due to the need for the law to protect against the truly un-fit parents. But I do know that less children would be harmed by divorce if more attorneys and more parents would practice No-Fault Custody.

For more information about proposed resolutions of co-parenting issues, please read our Custody page and the Association of Family and Conciliation Courts brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.

In most cases bringing your new significant other or your children to court with you is a bad idea.

Bringing a Significant Other:

In most cases having a third party in the courthouse (especially a significant other) inflames the other party and makes settlement less likely. While this is not always the case, the risk of making settlement more difficult is usually not worth the benefit of having a third party there.

Also, court is relatively boring. Your significant other will be able to wait with you in the courthouse but he/she will not be able to attend any family service meetings (i.e. required mediation prior to the court hearing). Court involves a lot of waiting around and there is usually something better that people can be doing with their time. For these reasons I usually recommend that clients come alone to court, but in the end it is your call.

Bringing your Children:

Whether or not the hearing involves your children bringing them to court with you is a bad idea for numerous reasons.

1. There is a saying that in criminal court we see bad people acting their best, and in family court we see good people acting their worst. Family court is a stressful place and oftentimes involves very personal and emotional issues. Exposing your children to this is unnecessary and can be damaging psychologically.

2. There is nothing for children to do in the courthouse. These buildings are not designed with children in mind and are not fun places to be. Your children will be able to wait with you in the courthouse but they will not be able to attend any family service meetings (i.e. required mediation prior to the court hearing) and they are typically not allowed in the courtrooms. Court involves a lot of waiting around and children will be very bored.

3. In the event the case does involve your children, it is even more damaging to have them in court. Children pick up on more than most people give them credit for, and knowing that a court hearing is happening (never-mind being there) can be very stressful for children. Children will take responsibility for the outcome even though they have no control over it and blame themselves if their parent is unhappy. Don't place this burden on your child.

4. Finally, there is no added value to having your children in court. In the unlikely event that the Judge wants family service to speak to your children, you will be given the opportunity to come back with them. Having them there at the time of hearing exposes them to unnecessary stress without any potential benefit.

For more information about best practices to protect your children from the detrimental affects of court actions between parents read the following brochure: Planning for Shared Parenting: A Guide for Parents Living Apart.

YOUR KIDS GET HURT! It seems obvious, but unfortunately many couples get caught up in the emotion of divorce and lose their ability to see their actions objectively.

This is one of the reasons the Massachusetts Probate & Family Courts under Standing Order 99-1 require parents with minor children to attend the Court-sponsored Parents Apart education program. The Program discusses the impact of Divorce on children and tries to help parents understand how sending messages through children can be so damaging to children.

If you need more convincing read this Rant posted on Craigslist by a child of divorce (Warning: the rant contains strong language).

A brochure which lists the names, addresses and telephone numbers of the various organizations that provide the Parent Education program, in alphabetical order by town, is available by clicking here.

I have recently become a Father and I spend a lot of time amazed at how my daughter changes every day. Those changes mean that her needs continue to change and grow, and paying attention to those changes is part of effective parenting.

Every case is different, especially when it comes to family dynamics, so every case requires your attorney to listen and learn about YOUR family. Because every family is so different, there cannot be specific guidelines on custody and visitation for every family or even every child.

The Court does try to recognize that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete, and also that at each stage, a child's needs are different.

In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges was formed. They wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart. Our firm recommends that any parent involved in a custody case read this brochure and use it as a starting point for thinking about and discussing how their child's unique needs can be met by a well-thought out and tailored Parenting Plan, and how that Parenting Plan will have to change as the child grows older.