Removal and Yannas Test

August 23, 2016

 

One of the biggest challenges in custody agreements is when the custodial parent wants to move out of Massachusetts, but the non-custodial parent objects because it would disrupt the non-custodial parent’s parenting-time[1] with the child.  This issue was recently addressed in the case of Rosenwasser v. Rosenwasser in the Massachusetts Appeals Court.[2]  The case is an important read for anyone who wants an overview of how the Massachusetts courts deal with removal cases and how judge’s balance the interests between the custodial parent, the non-custodial parent, and the child.

           

The Rosenwasser Case

In Rosenwasser v. Rosenwasser, a father with sole physical custody of his daughter wanted to move to Florida because he had better business opportunities there and also had the emotional support of his family to help him raise his child.  The mother, who had previously been absent from her daughter’s life, had just begun to reestablish a relationship with her daughter.  When she learned about the father’s desire to move to Florida, she objected and claimed that it would destroy the relationship that she was slowly repairing.  Additionally, the mother claimed that she could not afford regular trips to Florida to continue a consistent parenting-time schedule.  Initially, in the Probate and Family Court, a judge denied the father’s removal request.  Then the father appealed to the Massachusetts Appeals Court and the Appeal’s Court reversed the lower court decision and approved the father’s removal request.

 

The Appeal’s Court came to this conclusion by looking at two pieces of law: first, the Massachusetts removal statute at M.G.L. chapter 208, section 30, and second, the 1985 case of Yannas v. Yannas, 395 Mass. 704 (1985).  The Massachusetts removal statute states that a parent, against the objection of the other parent, may remove a minor child from Massachusetts “upon cause shown.”  The statute does not define what “upon cause shown” means, however the Supreme Judicial Court of Massachusetts clarified the phrase’s meaning in Yannas v. Yannas. In Yannas, a test was established to determine whether the custodial parent has demonstrated sufficient “cause” to remove the child from the state.  The test is known as the “real-advantage” test.

 

The “Real Advantage” Test

The “real advantage” is two-pronged.  First, the custodial parent must prove that that the move provides a “real advantage” to the custodial parent.  Second, the custodial parent must prove that the move is in the best interest of the child.  If the custodial parent can prove both things, the court will grant the removal request.

           

Prong One:  Is The Move A Real Advantage to the Custodial Parent?

The first prong of the “real advantage” test requires the court to determine if the move will be a “real advantage” to the custodial parent.  The first prong is satisfied if the custodial parent can prove two things:

 

First, the custodial parent must prove that he or she has a good, sincere reason for moving to the new state.  To prove a good, sincere reason for moving, the court will typically look at whether relocating will improve the custodial parent’s financial circumstances and/or help the custodial parent develop emotional support in the new state.Second, the custodial parent must prove the absence of a motive to deprive the non-custodial parent of reasonable parenting-time. To prove an absence of a motive to deprive the non-custodial parent of reasonable parenting time, the court will look at whether the custodial parent has been amenable to alternative parenting schedules and/or willing to reduce the non-custodial parent’s child support obligation in order to off-set the non-custodial parent’s travel expenses.

 

Prong Two: Is the Move in the Best Interest of the Child?

The second prong of the “real advantage” test requires the custodial parent to prove that the move is in the best interest of the child. The court weighs several factors when judging if the move is in the best interest of the child, and none of the relevant factors are “controlling.” In other words, one factor is not given more weight than another. The factors that the court weighs when determining if the move is in the best interest of the child are the following: Whether the quality of the child’s life will be improved, including any improvement that may flow from an improvement in the quality of the custodial parent’s life; Any possible adverse effects of the elimination or curtailment of the child’s association with the non-custodial parent; The extent to which moving or not moving will affect the child’s emotional, physical or developmental needs the interests of both parents; and the possibility of an alternative visitation schedule for the non-custodial parent. After weighing all of these five factors, the court determines whether, based on the totality of the circumstances, the move is in the best interest of the child. In the Rossenwasser case, the father was able to satisfy both prongs of the “real advantage” test and therefore the court granted his request to move to Florida. He was able to prove that the move would be in his best interest and also the best interest of his daughter. Although the mother had a strong argument for wanting to keep their daughter in Massachusetts, the evidence overwhelming proved that the child was best served in a new environment where the father would be able to better provide for the child financially and emotionally.

 

If you are a custodial parent who wants to move out of Massachusetts, or a non-custodial parent who wants to understand his or her rights in a removal proceeding, please contact Attorney Muska Yousuf of the Denby Law Office. Attorney Yousuf can be reached by email at myousuf@denbylawpc.com or telephone at 781-536-5826.

 

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[1] Rosenwasser v. Rosenwasser, Appeals Court, Docket No. 14-P-1601

 

[2] We at the Denby Law Office choose to use the phrase “parenting-time” instead of “visitation” when describing a non-custodial parents’ time with his or her child. We believe this phrase honors the relationship between a non-custodial parent and the child and emphasizes the importance of cooperative co-parenting in a child’s development. 

 

 

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