Too bad, I’m taking the children to California!

Presented by:

Holly A. Harney

Parents are placed in a precarious situation whenever one parent seeks to remove children from the Commonwealth without the consent of the other parent. These are commonly known as “removal” cases. Recently, I prevented a removal at the request of a client. The opposing parent sought to remove the minor children to California, while my client opposed.

A court may allow removal “upon cause shown” which has been interpreted to mean that the move must be in the best interests of the child. Removal petitions are evaluated under one of two analyses. When a parent with sole physical custody of the child seeks to relocate the child outside the Commonwealth over the objection of the non-custodial parent, the “real advantage” test applies. If the parent seeking removal from the Commonwealth, however, shares physical custody with the other parent the advantage of the moving party becomes merely a relevant factor in the over-all inquiry of what is in the child’s best interest.

While, of course, each case will be considered on its own, individual facts, the Court in my case declined to permit the requested relocation.

Key Point:

The best interest of the children is the overwhelming standard in all custody determinations. However, important in a court’s “removal” decision is whether reasonable accommodations could be made to ensure ongoing contact with the children and the non-custodial parent.

Special Note:

A solution the courts generally include daily contact via Skype, FaceTime or other social media and prolonged visitation when the children are not in school.