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Moving (with Children) After Divorce in Massachusetts
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Massachusetts divorce lawyer Nicole K. Levy uses a recent Appeals Court decision to illustrate the complications faced by former spouses who seek to move with their children following a divorce.

Like many states, Massachusetts has seen a significant push towards greater shared physical custody arrangements for divorced parents in recent years as a result of the father’s rights movement. An increase in shared physical custody arrangements carries some drawbacks, however. Among these drawbacks is reduced flexibility for parents seeking to move, where the “back and forth” nature of a shared physical custody schedule requires parents to live in relatively close proximity to each other.

Parties who agree to share physical custody must consider how the parenting schedule could affect a future move by either parent. The results have been an uptick in divorce agreements that restrict the number of miles a party may move following a divorce. What happens when a party violates a provision of their divorce agreement limiting his or her ability to relocate beyond a certain range as part of a parenting plan? The Appeals Court recently addressed this issue in Zahoruiko v. Regal (2016). The Court’s unpublished opinion provides a useful jumping off point for a discussion about the complications faced by former spouses who seek to move following a divorce.

We have written frequently about the challenges faced by parents seeking to remove children from the Commonwealth through a permanent relocation to another state. When an out-of-state move is challenged by the other parent, such “removal cases” are some of the most challenging, expensive and hard-to-predict family law cases that attorneys face. When parents share physical custody, however, even relatively routine in-state moves can turn complicated, where one parent’s move can ultimately impact parenting time, school choices, transportation, and even child support.

Table of Contents for this Blog:

  • The Zahoruiko Divorce: Agreement: Featuring a 30-mile Restriction on Either Party’s Right to Move
  • Reducing the Moving Party’s Parenting Time: When Parties Relocate Without a Court’s Input
  • Different Relocation Standards: Sole Physical Custody vs. Shared Physical Custody
  • Good Faith Efforts: Courts Tend to Favor Parents who try to Limit the Impact of a Move on the Children and Other Party
  • Post-Divorce Moves: A Complex Array of Challenges and Potential Outcomes

The Zahoruiko Divorce: Agreement: Featuring a 30-mile Restriction on Either Party’s Right to Move

In Zahoruiko, the parties were divorced in 2010 pursuant to a separation agreement that specifically contemplated what would happen if one party chose to move. Under the agreement, the parties shared legal and physical custody of the children. The agreement included a requirement that “that the parties were to reside within thirty miles of each other within central Massachusetts”. The agreement also included a “parenting schedule whereby [the parties] would essentially alternate primary responsibility for the children on weekdays and weekends.”


When one parent relocates after a divorce, it can be hard to keep a shared physical custody schedule intact.

Despite the agreement’s relocation restrictions, the father elected to move more than 30 miles away from the mother – to Connecticut. Indeed, the father moved to Connecticut without the mother’s notice or consent, despite sharing physical custody. Following the move, the mother filed a complaint for modification that “requested that the father’s parenting time be modified to reflect his change in residence and the best interests of the children.”

In its recitation of facts, the Appeals Court noted that:

[F]rom February, 2010, until June, 2014, the parties lived in Grafton, Massachusetts, less than two miles apart. In June, 2014, the father moved to Tolland, Connecticut with his fiancée, over forty-five road miles from the mother’s residence in Grafton. Despite the terms of the parties’ agreement, the father refused to discuss a revised parenting plan in contemplation of the move.

Following a trial, the probate and family court judge decided to reduce the father’s parenting time as a result of the move:

The judge noted that the children resided in Grafton, their school enrollment was in Grafton, their friends were in Grafton, and their extracurricular activities were in Grafton. The judge found that it was not in the children’s best interest to commute from Connecticut to Massachusetts under the prior shared parenting schedule. In the judge’s view, the road miles required too much unnecessary time in an automobile on a school night and the father, not the children, should make the commute.

The judge modified the parenting plan to provide the father with “parenting time on alternating weekends from Friday after school to Monday morning at school, and on ‘the Thursday before and the Tuesday after [the] mother’s weekend from 4 P.M. to 7 P.M.’ In addition, the father was to have four nonconsecutive weeks of summer vacation with the children, and parenting time on certain holidays and other vacation days.” The Appeals Court affirmed the probate and family court judge’s decision, confirming the soundness of the judge’s rationale.

Reducing the Moving Party’s Parenting Time: When Parties Relocate Without a Court’s Input

In its review of the lower court decision, the Appeals Court focused on numerous factors, including:

  • That the divorce agreement provided an express provision limiting in-state relocations to a 30-mile radius, which the father clearly violated.
  • That the father failed to consult with the mother prior to moving more than 45 miles away.
  • That the father refused to discuss or consider a revised parenting plan with mother following the move.

The Court ultimately found that the judge’s decision centered on the children, rather than the father’s conduct. (The decision did address the father’s non-compliance with the agreement’s restriction on relocation, but took pains to confirm that the change in custody was based on the children’s best interest, and not a form of punishment against father for his conduct.) Reviewing the facts of the case, the Appeals Court observed the following: “

The judge found that the children’s lives centered around the town of Grafton, where their mother resided, and that it was not in the best interests of the children to commute from Connecticut to Massachusetts under the prior shared parenting schedule.”

The Court was particularly concerned that due to the father’s relocation, the “parties’ daughter would be required to get up almost two and one-half hours before the commencement of her school day and, assuming no delays on the road, would spend roughly one and one-half hours in the father’s car before school.”

Interestingly, the case was not decided based on the Massachusetts removal statute, Ch. 208, s. 30, which provides:

A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders.

In a footnote, the Appeals Court noted that “there is no indication that either the parties or the judge proceeded at trial under that statute”. There are a couple of reasons that neither the probate and family court judge nor the parties relied on Ch. 208, s. 30 at their trial. First, the case law surrounding Ch. 208, s. 30 focuses almost exclusively on cases in which the primary custodial parent seeks to relocate out of state.

In the end, the reason the lower court did not apply Ch. 208, s. 30 may come down to the simple fact that the father in Zahoruiko did not “remove” the children from Massachusetts, where the mother retained 50% custody of the children, and the children continued to attend school in Grafton. (Indeed, under Massachusetts law, a citizen is domiciled in whatever town that he or she sleeps at least 50% of the time, meaning the children arguably continued to “reside” in Grafton, despite the father’s move.)

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Different Relocation Standards: Sole Physical Custody vs. Shared Physical Custody

In the removal context, it is important to recognize that Massachusetts courts apply different standards when evaluating a proposed move by a parent with sole physical custody over his or her children versus a parent who shares physical custody. As the Appeals Court recently observed in English v. English (2015):

If the party seeking removal is thesole physical custodian of the child[], then the judge must consider the request under a two-prong test set forth in Yannas. The judge must first consider whether there is a good reason for the move, a real advantage. As explained in Yannas, the `real advantage’ test is grounded on the realization that after a divorce a child’s subsequent relationship with both parents can never be the same as before the divorce … [and] that the child’s quality of life and style of life are provided by the custodial parent. … Although the best interests of the children always remain the paramount concern, [b]ecause the best interests of a child are so interwoven with the well-being of the custodial parent, the determination of the child’s best interest requires that the interests of the custodial parent be taken in account. (Citations omitted) (Emphasis added.)

The English opinion further explains that if the parties share physical custody, the Appeals Court noted that a different test applies:

If the party seeking removalshares physical custody with the other parent, then the best interest calculus pertaining to removal is appreciably different from those situations that involve sole physical custody. … Where physical custody is shared, a judge’s willingness to elevate one parent’s interest in relocating freely with the children is often diminished. No longer is the fortune of simply one custodial parent so tightly interwoven with that of the child; both parents have equal rights and responsibilities with respect to the children. The importance to the children of one parent’s advantage in relocating outside the Commonwealth is greatly reduced. (Citations omitted.) (Emphasis added.)

As noted in our recent removal blogs, the recent trend in Massachusetts removal cases has been to devalue the “real advantage” portion of the Yannas test. As a result, courts seem increasingly less inclined to grant requests by custodial parents to relocate children out of state. (However, a recent Appeals Court case, Rosenwasser v. Rosenwasser, seemed to buck this trend by re-emphasizing the importance of the “real advantage” test).

For all its faults, the “real advantage” test gives judges, lawyers and parties a framework in which to understand and predict how a probate court judge might rule on a proposed move. Conversely, the “best interest of the child” standard that applies to moves requested by parents who share physical custody is so vague as to be nearly meaningless.

(Despite the ambiguity of the “best interests” test, there are three important factors that often impact relocation cases decided under the standard. First, a parent who presents facts proving that he or she deserves sole physical custody for reasons entirely separate from the move is more likely to prevail in his or her relocation case. Second, the importance of the move itself may prove critical in such cases. If the parent has extremely compelling reasons for his or her move – such as an involuntary job transfer for the parent providing most of the financial support for the children – a court is less likely to prevent a move by “punishing” the moving parent with reduced parenting time. Third, there is the impact of the move on the overall schedule. Generally speaking, probate and family court judges try to avoid radically modifying the parenting schedule when both parties are sincere, committed and loving parents. Judges will often reward a moving parent who demonstrates an openness to tweaking the schedule to maximize the convenience for the children and other parent.)

Good Faith Efforts: Courts Tend to Favor Parents who try to Limit the Impact of a Move on the Children and Other Party

The Zahoruiko decision may have been different if the father had simply asked the court to modify the parenting schedule to allow his move by filing a more traditional complaint for modification. Had the father persuaded the court that he could offer the children a better life in Connecticut, perhaps the judge would have awarded primary custody to him. Instead, the father moved unilaterally, then insisted that the schedule should continue as if the move never occurred. Such inflexibility probably harmed the father’s case.

Similarly, if the father had engaged in good faith negotiations with the mother to tweak the schedule, to minimize the impact of the move, such efforts would have probably helped his cause with the judge. Similarly, if the father had proposed such “tweaks” to the probate court judge, the father would have probably exerted more control over the final schedule ordered by the judge.

Post-Divorce Moves: A Complex Array of Challenges and Potential Outcomes

In the end, Zahoruiko reflects the many complications that can arise out of a parent’s desire to move, in or out of state, and how these issues may be complicated by designations of shared vs. sole custody, and the procedural choices made by the moving parent. There are many factors to consider when considering the range of outcomes in relocation cases.

At one end of the spectrum, there may be a party who wishes to move to a neighboring state, perhaps Rhode Island. A move to Rhode Island may be minor in terms of distance. (Moving to Providence from Attleboro is far less drastic than moving to Newburyport, for example). However, if the moving party is the custodial parent, it would trigger a “removal case” that requires a court’s permission, even if the move was five miles from the previous residence. (Ironically, Zahoruiko suggests that a similar parent with shared physical custody could move to Rhode Island without needing a court’s permission at all.)

At the other end of the spectrum, a party may wish to move from Hanover to Amherst. Simply being “in state” does not automatically mean the move cannot be challenged by the non-moving party. Such a drastic change in location may affect the transportation time, the children’s schooling, their sports, and the parenting schedule (which may then affect child support). This may trigger a removal analysis, despite the moving party not crossing state borders. Just as likely, such a move may require some practical adjustments to the parenting schedule that a court must then approve.

All of this tells us that it is important to consider the implications of a move when parties are negotiating a divorce agreement. Whether a specific provision limiting the range of a potential move is appropriate varies from case to case, parties and their attorneys should explore the possibility of a move before finalizing an agreement.

About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in located in Hingham, Massachusetts and East Sandwich, Massachusetts. She is also a mediator for South Shore Divorce Mediation.

Schedule a consultation with Nicole K. Levy today at (781) 253-2049 or send her an email.

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