Members Helping Members: My Bar Access Q&A

Issue January/February 2018

Q:

I have another question. This one is a little time-sensitive. Many thanks in advance for any feedback.
 
Brief facts: Party A and Party B were married out of state. They have one minor child who is less than two years old. About eight months ago, they moved to MA. The “irretrievable breakdown of the marriage” arguably occurred here in MA soon after they arrived. Party A would like to file for divorce. His main concern is that Party B is going to take the child out of MA.

My “million dollar question” is: what is the best way to get an order preventing Party B from taking the child out of MA?

More specifically ...

1. First, does MA have jurisdiction for the divorce? Neither party has resided in MA for at least one year. However, I think I could argue that MA does have jurisdiction because the breakdown of the marriage arguably occurred here in MA. I do believe that Party B is going to contest jurisdiction.

2. If MA does not have jurisdiction for the divorce, what are my best options? Keeping in mind that the primary concern for Party A is that Party B is going to take the child out of MA. Would a Complaint for Separate Support be best? Complaint for Custody? And then seek a temporary order that neither party can permanently remove the child pending further order of the court? MA has jurisdiction to make a custody determination because the child has been here more than six months (this is the child’s home state). But what is the best way to obtain not just a custody determination, but an order preventing relocating out of state?

3. Finally, does the removal statute apply? Right now they are married and there is no custody order from a court, so each spouse has equal custody and could take the child out of state. But assuming I do file for divorce (question 1) or file for separate support/custody (question 2), does the removal statute apply?

I think the answer to question three is a “no” (although I am hoping it is a “yes!”). According to my research, the removal law applies only if the child was born in MA or has lived here for five years. Here the child was born out of state and has not lived here for the last five years (child is not yet two years old). 

Any suggestions? The primary concern right now is to prevent Party B from taking the child out of MA. 

Many thanks as always.

Mark Scialdone, Law Offices of Mark R. Scialdone, Boston

A:

My initial “answer” to your question would be to file a complaint for divorce on the grounds of irretrievable breakdown and a motion for temporary orders seeking the restriction on removal. If they moved here together and have separated since, it will be difficult to argue that the irretrievable breakdown of the marriage did not occur in Massachusetts, so jurisdiction should be available. (If the court were to suggest otherwise at a hearing on a Motion to Dismiss, you could file a Complaint for Custody.)

As to the question of whether the removal statute applies: I think your assessment of the law is correct — it does not — but my experience is that most Probate & Family Court judges would apply it, at least if you get in before a move. I hope this helps. (Where do I collect my million dollars?)

Best,

Stephanie Goldenhersh, 
Harvard Legal Aid Bureau, Cambridge

A:

The SJC just issued a case on removal that lays out a nice discussion of Massachusetts removal law and how to analyze removal when there is no pre-existing custody order and also discusses whether sec. 30 applies in various situations (unmarried parents, less than five years resident of MA, etc.). Well worth reading. There’s also a concurring opinion that’s interesting.

Very basically, the standard the court must apply depends on whether there is a primary custodial parent Yannas “real advantage”) or a shared physical custody situation (Mason
“best interests of child”). Where there are no court orders OR where there is a court order but the true, actual parenting schedule is different, the court must do a “functional analysis” of the actual facts around the existing parenting plan and determine whether or not it approximates sole physical or shared physical custody. Once that determination is made, the court must apply the appropriate standard. In all cases, the best interests of the child is paramount.

The case is Miller v. Miller, SJC 12298 (Jan. 12, 2018). “We hold that the judge must first perform a functional analysis, which may require a factual inquiry, regarding the parties’ respective parenting responsibilities to determine whether it more closely approximates sole or shared custody, and then apply the corresponding standard.

"We also take this opportunity to emphasize that the best interests of the child is always the paramount consideration in any question involving removal."

Patricia Levesh, 
Family Law Unit, Greater Boston Legal Services, Boston

My Bar Access is an exclusive, online MBA community. Log in at www.massbar.org/access to virtually connect with fellow members and share practice information and tips through discussions, blogs and more.