Child Custody Disputes and Removal

The primary consideration in resolving a custody dispute is, "What is in the best interests of the child? " The focus is from the vantage point of the child, as opposed to the wants and desires of one parent or the other. The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.

Child custody is often the most contentious and rancor filled aspect of a divorce or paternity matter. Usually, the individuals who suffer the most in a custody dispute are the children because often the parents are blinded by their desires and fail to recognize completely the desires and needs of the children.

In making a decision relative to the custody of children, the rights of the parents will, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children will determine their custody. When considering the happiness and welfare of the child, courts consider whether or not the child's present or past living conditions adversely affect his physical, mental, moral or emotional health.

Generally, courts assume (in the absence of reason to the contrary) that the best interests of a child are served by having continuing and frequent contact with both parents. If one parent attempts to undermine the relationship between the child and the other parent, this factor could be considered in providing custody or additional visitation to the other parent.

There are two elements of custody, Legal Custody and Physical Custody. They can be either sole or shared or a combination.

Legal Custody is the right and responsibility to make major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development. Physical Custody is a question of where the child primarily lives.

In Shared Legal Custody situations the parents continue to be mutually responsible and involved in major decisions regarding the child's welfare including matters of education, medical care and emotional, moral and religious development.

In Shared Physical Custody situations a child has periods of residing with and being under the supervision of each parent, however, each parent is responsible to assure the child frequent and continued contact with the other parent.

In Massachusetts, the courts have said that it is in the " best interests of the child " to preserve the current placement with a parent, if it is a satisfactory one, and that stability and continuity with the child's primary caregiver is itself an important factor in a child's successful upbringing. "

Removal can be defined as changing a child's residence from one state to another, or even within a state. Generally, a custodial parent may not permanently remove the child from one state to another without consent of the other parent or approval of the court having jurisdiction over the matter.

Frequently, when a court must decide whether to permit children to move out of state, the standard is the " real advantage " test. The advantage may be economic or support of family residing in another jurisdiction or it may be any other good, sincere reason for wanting to remove.

Above all else, the removal must be in the best interests of the child. If it is found that there is a genuine, recognizable advantage to the custodial parent from the move, the question then is whether the move is consistent with the children's best interests.

The non-custodial parents' rights are considered. The non-custodial parent continues to have the right to make decisions concerning the care, custody, and control of his or her children. One of the strongest considerations regarding the non-custodial parent is whether the motive for removal is to deprive the non-custodial parent of reasonable visitation. Nonetheless, that the non-custodial parent's visitation may be affected is not the sole determinant in a removal matter.

The consideration of the advantage to the custodial parent and the consideration of the best interests of the child overlap. Will the quality of the child's life be improved by the change (including any improvement flowing from improvement in the quality of the custodial parent's life)? Is there a possible adverse effect of the elimination or curtailment of the child's association with the non-custodial parent? Will moving or not moving affect the emotional, physical, or developmental needs of the child?

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The Law Offices of Hans R. Hailey are located in Boston and Westwood, Massachusetts. Divorce and family law attorneys from the Law Offices of Hans R. Hailey frequently represent clients in family law claims in Boston and throughout Massachusetts.