Moving With Children After Divorce

02/11/2011- Robinson Donovan Case Digest

One aspect of today's mobile society is the frequency with which families relocate. It is complicated enough when a family is intact, but when parents no longer reside together, the relocation of a custodial parent can lead to protracted and expensive litigation. In the recent case of Anna Katzman vs. Timothy Healy the Massachusetts Appeals Court reinforced the standards that a judge must consider when determining whether or not a child can be moved by one parent away from the other parent. In cases where one parent has sole physical custody of the children, the 1985 case of Yannas v. Frondistou-Yannas, established a two-pronged test to determine if permission to move a child should be granted. The first test under Yannas is whether there is a real advantage to the custodial parent in moving. If the first test is met, then the second test is whether or not the move is in the best interest of the children when balanced with the interests of the custodial parent. The consideration of what is in the best interest of the children includes the advantages or disadvantages of moving to the parent who has sole physical custody under the theory that this parent's well-being is interwoven with the wellbeing of the child. In cases where the parents have joint physical custody, the court must apply the standards set forth in the 2006 case of Mason v. Coleman, by considering the child's relationship with both parents and typically "favor the protection of the child's relationships with both parents because both are, in a real sense, primary to the child's development."

In addition to reinforcing the standards for review, Katzman also reminds us of the challenges of litigation. After a twenty-three (23) day trial beginning in 2008 and a decision by the trial judge that Ms. Katzman could not move with the children from Massachusetts to New York, the Appeals Court, in September of 2010, over a year after the case began, ruled that the case should be returned to the Probate Court for further consideration of the question of removal of the children. By September of 2010, both parties had remarried and had additional children, but though they had moved on, they were still faced with continuing to litigate a physical move almost three years later.

This article is a general summary only and does not constitute legal advice.

Carla W. Newton is an attorney at Robinson Donovan, P.C. For questions about child custody or any other Family Law matters, please contact your RD attorney or Attorney Newton at (413) 732-2301.