If there is a custody order in place, can I take my kids out of the state?
It depends. Generally, whether you can take your child out of the state for a short period of time depends on what your custody order says. The custody order may allow you to take your child out of the state, prohibit you from taking your child out of the state, or it may not address the issue at all. If you do want to leave for a short period of time and the other parent does not consent, the judge may require that you post a bond (money) or other type of security to ensure that you will return the child to MA.1 Note: If your custody order specifically does not allow you to take your child out of the state without permission from the court or the other parent, and you do so anyway and violate the order, there is a chance that you could be charged with either contempt of court, parental kidnapping, or both.2
If you are in danger and need to leave the state to protect yourself or your child, you may be able to file for temporary emergency custody in the state that you flee to. Getting a temporary order will mean that you have legal custody of your child for the time being, and therefore it is OK to be outside Massachusetts, while that order is in effect. However, this is difficult to get, especially if there is an ongoing custody case in MA. We strongly suggest that you talk to a lawyer in the state you plan to flee to before arriving there if this is something you are thinking about doing. Go to MA Finding a Lawyer for free and paid lawyers. For more information about what you would have to prove to get temporary custody, please see Can I get temporary emergency custody.
If you are planning to move out of MA permanently, you will most likely have to apply in court to modify (change) your custody order. If the other parent has visitation rights, or if you share custody with the other parent, the visitation order would have to be re-worked to accommodate the fact that you would be living far away. It will be up to a judge to decide whether or not the child can leave MA (based on what the judge believes is in the child’s best interests). When making this decision, the judge will likely consider the possibility that the move will improve your child’s life (including any improvement in your life that may benefit the child), and the possible negative effects that it could have on your child, including not being able to visit with the other parent on a regular basis.3
1 M.G.L.A. 208 § 30
2 See M.G.L.A. 265 § 26A
3 See Pizzino v. Miller, 858 N.E.2d. 1112 (Mass. App. 2006)