Robin Lynch Nardone and Francine Gardikas will be leading a free webinar, “Relocating With Your Children Amid Divorce” on February 10, 2021 at 12:00 noon ET. The webinar is part of an ongoing series sponsored by Burns & Levinson’s Divorce Law Monitor blog.

Q. How difficult is it for one divorcing parent to move out of state with their children?

Lynch Nardone: The specific facts of each individual case determine the likelihood of success when one parent makes a request to remove children from the Commonwealth of Massachusetts. The most important criteria is what is in the best interests of the children – this is what ultimately determines whether or not a move will be permitted.

Q. What issues does the court consider when deciding if a parent can relocate far away from the other parent? Do some circumstances hold more weight than others?

Gardikas: The court considers a number of factors based on if one parent has primary custody of the child or if there is a shared parenting arrangement. If one parent has a primary custody, that parent must first prove that there is a real advantage to moving and that real advantage (often a new job or family support) will trickle down to the child and be in the child’s best interest. If there is a shared custodial arrangement, the court looks at the child’s best interests and his or her relationship with the parent who is not seeking removal and how the distance will impact that parent/child relationship. Ultimately, the court must place greatest emphasis on the child’s best interest.

Q. What happens when one parent won’t agree to the other parent moving out of state with their shared minor children? Will the court intervene or leave it up to the exes or soon-to-be exes to negotiate?

Lynch Nardone: If the parties cannot agree, then the parent seeking to remove the children from Massachusetts must petition the court for approval. If this is done during the divorce process, then the court will make a determination about removal at the same time that the court is determining what parenting plan is in the best interests of the children. If the parties are already divorced and a parenting plan is in place, the parent seeking to move files a Complaint for Modification and asks the court to allow removal. The court will make the determination after weighing the appropriate factors after trial.

Q. With courts backed up due to the Covid crisis, how is this impacting if and when a parent can move with his or her children?

Gardikas: The Covid crisis has caused the wheels of justice to come to a near screeching halt. While the courts are open to help litigants, cases are moving through the court system at a glacial pace. Some courts are not scheduling trials until 2022 and this will have a direct impact on whether a party can remove a child if removal is contested. It is possible that a court may hear a request should there be an emergency basis but removing on a temporary basis is not typically allowed.

Q. Is there anything a parent can do to put themselves or their situation in a more favorable light to greenlight or stop a move?

Lynch Nardone: A parent needs to have a sincere reason to move out of state, which cannot be motivated by a desire to deprive the other parent of contact with the children. A parent who has family, an offer of employment, a better housing situation, or even a spouse out of state stands a better chance of obtaining removal than someone who simply wants to move out of state to try out a new location. In terms of preventing a move, showing why it would not be in the best interests of the children to make a move, including an inferior school system in the new location, lack of necessary medical/psychological care, lack of a solid support system, and the negative impact on the relationship with the parent remaining in Massachusetts are all factors that may prevent a parent from removing the children.

Q. How do you get parents to the negotiating table when you hit an impasse?

Lynch Nardone: It can be difficult to negotiate surrounding a removal given either there is a move or there is not – leaving no middle ground. However, there can be some give and take that might make a move feasible or might make a parent agree not to move. There are also instances where a parent will agree to make the move with the other parent and children when employment circumstances will allow– such that they all move out of Massachusetts. With the backup in the court system due to the pandemic, trying out alternative dispute resolution has become much more appealing, as it can bring a much quicker resolution. While there are instances where parents are simply unable to come to agreement, the delay in getting a decision from the court has helped many parents to come to the table to try to work things out.

Q. What are some of the most creative custody or visitation arrangements you have helped parents create to make moving possible?

Lynch Nardone: When the out of state move is close enough to allow for weekend time, often the noncustodial parent will get more weekend and holiday time with the children, such as three weekends each month, plus the school holidays. When the move involves airline travel, we often see noncustodial parents having all of the three day weekends, school vacations, and the majority of the summer with the children.

Gardikas: Similar to what Robin has said, the party who remains in the home state will typically enjoy more of the fun time – weekends and summers. In some cases, I have had clients, after much thought and planning decide to move to same area the child and other party moved. Certainly unusual, but in both cases, the party who eventually moved was able to establish a new live and career.

Robin Lynch Nardone chairs the Divorce & Family Law Group and co-chairs the Private Client Group at the law firm of Burns & Levinson in Boston. She has more than 20 years’ experience helping clients through challenging family law matters with a specialty in handling high conflict and high net worth disputes. She has extensive experience handling child removal cases and is a trained family law mediator. She can be reached at rlnardone@burnslev.com.

Francine Gardikas is a partner in the Private Client Group at Burns & Levinson in Boston. She concentrates her practice on probate and family court litigation in Massachusetts and has many years of experience helping clients through challenging family law matters with a specialty in handling high net worth divorce and high conflict custody/parenting disputes. She can be reached at fgardikas@burnslev.com.