by Jessica Dubin
In E.K. v. S.C., 97 Mass. App. Ct. 403 (2020), the Appeals Court established a new removal inquiry that applies when an out-of-state, non-custodial parent seeks custody of a child living in Massachusetts and requests permission to move the child to the state where that parent resides. Previously, case law had addressed only the standards applicable to requests to remove a child out-of-state by a parent living in Massachusetts, and had established three different inquiries depending on the child’s custodial status.
The parties in this case were never married and had one child. As part of the judgment of paternity, the court awarded the parties shared legal custody of their child, primary physical custody to the mother, and parenting time of one weeknight per week and every other weekend to the father. Approximately six years later, the father filed a Complaint for Modification seeking sole legal custody and permission to move the child to New Hampshire, where the father already lived. He alleged that the mother was acting contrary to the health, education and welfare of the child by unilaterally stopping the child’s medication, withdrawing him from a special needs school program without the father’s consent, and maintaining uninhabitable living conditions. After a bench trial, the judge found for the father.
The Appeals Court’s Decision
After concluding that the trial judge’s detailed findings of fact supported her conclusion that a material and substantial change of circumstances had occurred warranting a change in custody, the Appeals Court turned to the novel question of what removal inquiry should apply when a non-custodial parent seeks to relocate a child out-of-state to the state where that parent resides. The Court set forth a three-part inquiry:
- First, the judge must analyze whether a parent’s move out-of-state was motivated by a desire to deprive the custodial parent of time with the child. If the judge finds that the intent of the move was not to interfere with the custodial parent’s relationship with the child and that the move was not designed to establish a basis to request a change in physical custody, then the judge should proceed to the second inquiry.
- Second, the judge must determine whether the out-of-state parent is rooted in the community where that parent seeks to move the child. Factors analyzed as part of this inquiry may include the parent’s employment, financial situation, housing, family composition, and social and emotional benefits of that parent’s circumstances. If the judge finds that the parent is rooted in the community, this may be considered a “real advantage” to that parent. Once the out-of-state-parent demonstrates a “good, sincere reason” for the move, the judge should proceed to the third inquiry.
- If the first two inquiries favor the out-of-state parent, then the judge must determine the best interests of the child, including the impact the proposed move would have on each parent and the resultant effect on the child. The factors to be considered in this analysis include: “(1) 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;’ (2) any possible ‘adverse effect of the elimination or curtailment of the child[ ]’s association with the noncustodial parent’; (3) ‘the extent to which moving or not moving will affect the [child’s] emotional, physical, or developmental needs’; (4) the interests of both parents; and (5) the possibility of an alternative visitation schedule for the noncustodial parent.” Murray v. Super, 87 Mass. App. Ct. 146, 150 (2015), quoting Dickenson v. Cogswell, 66 Mass. App. Ct. 442, 447 (2006).
Applying the “clearly erroneous” standard of review, the Appeals Court affirmed the trial judge’s findings that the father’s move to New Hampshire occurred long before any custody modification proceeding was contemplated and that he was firmly rooted in his community. Accordingly, the Court concluded that the father’s decision to move to and remain in New Hampshire provided him with a real advantage. Proceeding to the best interests of the child analysis, the Court held that the trial judge’s findings addressed all of the Murray factors and were supported by the record. The Court accepted the judge’s final determination that the father had the better ability to address the child’s significant needs.
Four different removal inquiries now exist. Which inquiry will apply depends on the facts of each particular case. The four inquiries that exist after E K. v. S.C. are as follows:
- when a parent who lives in Massachusetts has sole physical custody and seeks removal to another state, that request is analyzed using the real advantage standard pursuant to Yannas v. Frondistou-Yannas, 395 Mass. 704, 711-712 (1985);
- when a parent who lives in Massachusetts has shared physical custody and seeks removal to another state, that request is analyzed using the best interests of the child standard pursuant to Mason v. Coleman, 447 Mass. 177, 184-185 (2006);
- when a parent who lives in Massachusetts seeks removal to another state and no prior custody order exists, a judge must first perform a functional analysis regarding the parties’ respective parenting responsibilities to determine whether those more closely approximate sole or shared custody, and then apply the corresponding Yannas or Mason standard, pursuant to Miller v. Miller, 478 Mass. 642, 643 (2018); and
- when a non-custodial parent who lives outside of Massachusetts seeks removal to the state where the parent resides, the request is analyzed using the three-pronged inquiry outlined above pursuant to E.K. v. S.C.
 Although beyond the scope of this article, the Appeals Court also resolved these procedural issues: (i) motions for reconsideration continue to be subject to the requirements of Standing Order 2-99 even though such motions were deleted from the Standing Order in 2012; (ii) although the trial judge should not have issued a temporary order changing custody without contemporaneous findings of fact, her failure to do so should not result in reversal on technical grounds when the mother failed to demonstrate prejudice from the delayed findings of fact; and (iii) the trial judge did not abuse her discretion in denying the mother’s motion to reopen evidence.
Jessica Dubin is a partner at Lee & Rivers LLP where she concentrates her practice on all aspects of family law. Jessica is a member of the Boston Bar Association’s Council and Family Law Section Steering Committee, and serves on the Board of Editors of The Boston Bar Journal.