The General Laws of Massachusetts provide that a child of divorced parents born in Massachusetts, or who has lived in the state for five years, cannot be removed from the state without his consent if the child is "of suitable age to signify his consent." Because this age is not written into the statutes, it is likely to be determined on a case-by-case basis. If the child is not old enough to agree, the child cannot be removed from the state without the consent of both parents or an order of the court. This statute also applies to situations when the parents are not married; state law holds that a child of unmarried parents is entitled to the same rights and protections as a child of married parents.
If you want to move with your underage child to another state, the first step is to ask the other parent for consent. The other parent may be concerned existing visitation schedules may change drastically, depending on where you want to move. If you want to move just across the state line, the other parent is more likely to agree. If you want to move halfway across the country, however, you are likely to face some resistance. If you and the other parent can agree on a modified visitation schedule, it is a good idea to put the agreement in writing, have it properly witnessed and file it with the court for your protection.
Asking the Court
When parents cannot agree on a request to move a child, the court has to become involved. There are several ways a parent can petition the court for permission to move a child. If you are filing a complaint for divorce or custody, you can request permission to move the child in your lawsuit. If you have already filed, you can amend you complaint to include this request; if the other parent has already filed, you can file a counterclaim in which you seek permission to move the child. If your case has concluded and you have a final order, you can file a motion or complaint for modification or a petition for removal.
If you have sole physical custody of the child, a judge will allow you to move the child to another state if you can show there is an advantage to the move and it is in the best interests of the child. The judge will look at your financial situation, in particular. Connections in the new community, such as family and friends, are also important. Generally, what is in the best interests of the custodial parent is best for the child also. The judge will want to know you are not moving to hinder the other parent’s relationship with the child.
When parents share physical custody, or when a child spends a substantial amount of time with the noncustodial parent, the burden on the parent who wants to move with the child is heightened. The focus shifts more toward the best interests of the child. In other words, although a move to another state might pose a significant financial improvement for one of the parents, the child’s continuing relationship with the other parent might be deemed more important by the judge.