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.

As discussed in a previous post, M.G.L. c. 208 Section 30 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, but rather is intended to prevent the "removal" of children to another state of residence without permission of both parents or the Court's permission.

In a 2003 decision, the Massachusetts Appellate Court expanded this prohibition on removal to include relocation within the Commonwealth if the relocation would "involve significant disruption of the noncustodial parent's visitation rights and the parents cannot agree." D.C. v. J.S., 58 Mass. App. Ct. 351, 355-356 (2003).

If your ex is threatening to move to another part of the state with your children and it would significantly disrupt your parenting time with the children, then you can ask the Court to prevent this move. If the Court agrees that the move would significantly disrupt your parenting time then the court should apply the same standard as in a case involving a removal out of state. It may be prudent for a parent who wants to move, even within the Commonwealth, to ask the Court's permission if the other parent disagrees. This could prevent costly requirements if the Court disallowed the move afterwards.

What happens to your case when you move out of state, depends on the type of case, and what stage your case is currently in.

Divorce Cases:

If your Divorce case has not been filed yet and you or your spouse move to another state, that state may gain jurisdiction over your case after a certain period of residency. For persons moving into Massachusetts from other states, Massachusetts gains jurisdiction over your case after 1 year of residency (or in other unique circumstances) and you can then file for Divorce in Massachusetts. If you want to file in another state you will have to meet their residency requirement before you can file there. In addition, another state may not be able to take full control over your entire case if you have left children or property behind in Massachusetts. You should consult with an attorney in both states if you are in this situation to make sure you choose the appropriate forum for your case.

If your Divorce case has already been filed in Massachusetts and you or your spouse move to another state, then Massachusetts still maintains jurisdiction over you and your case. That means that Massachusetts can still make decisions about your property, children, and support issues, even if you don't live here anymore. Although, there are unique issues that relate to relocating children out of state, for the most part you will still need to participate in the Massachusetts divorce case. If you hire an attorney you may not have to attend all hearings, because they can attend for you and explain to the Court the unique circumstances of your case and your current residence out-of-state.

If you have settled a Massachusetts divorce case and both parties agree that there has been an irretrievable breakdown of the marriage and agree on all other issues related to their marriage, as described in a Separation Agreement, then you can file a Joint Petition for Divorce under the provisions of Section 1A. In most cases, both you and your spouse must attend the uncontested divorce hearing and testify under oath that your marriage has suffered an irretrievable breakdown and that you signed the Separation Agreement freely and voluntarily. It is possible for only one party to appear at the hearing if there are special circumstances that prevent the other party from attending. To be excused from the uncontesting hearing you must file a Motion and Affidavit stating the reasons why the party cannot attend. The Affidavit should also include the testimony necessary for the uncontested hearing. You should consult an attorney regarding the drafting of the necessary language.

Modification/Contempt cases:

If you have a Divorce or Paternity Judgment in Massachusetts but have since moved out of state, Massachusetts will still retainer jurisdiction over certain parts of your case. For example, if your children still live in Massachusetts then any Modification or Contempt actions relating to the custody, visitation or support of the children will still take place in a Massachusetts Court. If you have moved out of state with the children you should consult with an attorney to figure out which state now has jurisdiction over these issues.

At Kelsey & Trask, P.C. we have handled many cases for out-of-state clients and can conduct a Free 1-Hour Consultation via telephone or Skype if you are interested in learning more about our services and how we would help you with your case.