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Family Law

Can a divorced parent who has physical custody remove a child out of the Commonwealth of Massachusetts?

Massachusett's State House, State House, Commonwealth of Massachusetts
Commonwealth of Massachusetts State House

Can a divorced parent who has physical custody remove a child out of the Commonwealth of
Massachusetts? The simple answer is not without permission from the other parent or the Court. If you
do not have physical custody of the child and you do not consent to the move, the custodial parent must
“show cause” to the Court before removing the child. In other words, the Court will determine (1)
whether removal of the child would provide a real advantage to the custodial parent, and (2) if removal
is in the best interest of the child. The custodial parent must show three things: (1) they have a good
reason for moving, (2) their intent is not to deprive the noncustodial parent, and (3) the removal is in
the child’s best interest.

In the 2016 case Marci Rosenwasser v. Ronald Rosenwasser 1 , the Father, who had physical custody of his
daughter, asked the Trial Court to move with his child to Florida. The Trial Court determined that
although removal of the child was advantageous to the Father, removal was not in the best interest of
the child because the mother was unable to have suitable visitation with the child. The Father appealed
the Trial Court’s decision. The Appeals Court agreed that the Father was able to show that moving to
Florida was advantageous to him because it would improve his financial circumstances and allow his
family and friends to provide emotional and physical support to him and the child.

The Appeals Court, however, disagreed with the Trial Court regarding whether the move to Florida was in the best interest of the child, and determined that disruption in visitation of the parent without custody does not automatically outweigh the advantages that moving would have on the parent with custody. The
Appeals Court sent the case back to the Trial Court and instructed the Trial Court to consider the
Father’s interests, the impact of economic and emotional benefits on the child’s quality of life, the
child’s needs, the child’s relationship and routine with both parents, and the reasonableness of the
proposed parenting plan.