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Removals/Move -Aways
Non-custodial parents frequently face the possibility of move-aways, in which the custodial parent proceeds to move the children to another state. Recent case law has spoken to this issue, as listed and discussed below.
Links
California Move-Away
One state court system's take on move-away spouses is discussed in this insightful article.
Preventing Domestic Move-Aways
Preventing Domestic Move-Aways provides an article with helpful information for fathers who are dealing with a move-away situation.
Facts
- According to the Senate Committee on Judiciary, Report on Family Law, Relocation of Custodial Parents:
Seventy-five percent of custodial mothers move at least once within four years after separation or divorce.
Research
Some of the following research reports and articles are accessible via the Internet. Others are not accessible on the web as they require a password, such as those law review articles found on Lexis Nexis and Westlaw. Articles may be found in your local library or law library.
Charles P. Kindergran, Jr. Family Interests in Competition: Relocation and Visitation, 36 Suffolk U.L.Rev. 31, 62 (2002).
Suffolk University Law Professor discusses the competing interests of families split by divorce, including the idea that judicial restraint on one parent's right to travel creates an infringement on that parent's constitutional rights.
Suffolk University Law Review
Holtz, Kimberly K. Move-Away Custody Disputes: The Implications of Case-by-Case Analysis and the Need for Legislation. 35 Santa Clara L. Rev. 319 (1995)
A discussion of move-aways and what must be done to further the best interests of the child.
Santa Clara Law Review
Case Law
Massachusetts Case Law
Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (Mass. 2002) (HTML format)
The Court of Appeals determined that the mother's attempt to move with her child to Italy was not in the best interests of the child, as the court weighed all evidence and opined that the mother was not capable of distinguishing her interests from those of her child.
Rosenthal v. Maney, 51 Mass. App. Ct. 257 (Mass. 2001)
Mother wished to move son to Providence from Massachusetts, 55 miles away from the child's non-custodial father. The court held that a move as such would give the non-custodial parent a claim for custody unless the mother could show a significant change in circumstances compelling such a move.
Williams v. Pitney, 409 Mass. 449 (Mass. 1991)
Mother and father had agreed in a private separation agreement that the mother, the custodial parent, would not move away with the children. Modification of the couple's separation agreement by the court allowed the mother to move away. The father appealed the modification and the court upheld the order, finding that the move-away was in the best interest of the children.
Yannas v. Frondistou-Yannas, 481 N.E. 2d 1153 (Mass. 1985)
The Supreme Judicial Court of Massachusetts authorized mother to move children to Greece against the protests of the father. The court held that there was no presumtion of joint custody with minor children.
Case Law from Other Jurisdictions
In re Marriage of LaMusga, 88 P.3d 81 (Ca. 2004) (MS Word format)
Recent California move-away case in which the state's highest court reversed a court of appeals decision awarding custody to the mother-plaintiff in her attempt to move-away to Ohio. The court of appeals held that the move-away was allowable if it was made in good faith and the non-custodial parent could not prove that the move was essential to the detriment of the children. The Supreme Court reversed the decision of the appeals court.
Jaramillo v. Jaramillo, 823 P.2d 299 (N.M. 1991)
The question presented to the Supreme Court of New Mexico in this case was whether placing the burden of proof on the resisting parent in potential move-away situations infringes upon the custodial parent's constitutional right to travel. The court determined that the burden should be placed on the custodial parent: to prove that the move is in the best interest of the child.
Taylor v. Taylor, 849 S.W. 2d 319 (TN 1993)
Custody of three-year-old girl awarded to mother, who later remarried. A lower court decision prohibited the mother from moving away with the child to Iowa. The court of appeals affirmed the judgment. Upon review, the Supreme Court of Tennessee reversed the lower court's judgment on the grounds that the mother's new husband was living and attending school in Iowa and the move would thus be in the best interest of the child.
Proposed Legislation
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