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Mediating A Child Removal Case

By Howard Goldstein , Esquire

(Reprinted from the Massachusetts Council on Family Mediation Quarterly, Vol.2. No.1 Winter 2003.)

Among the most wrenching of all post-divorce family disputes is the conflict that arises when one parent feels compelled to move out of state with the children; hence the term "removal case." According to G.L. c. 208, § 30:
"A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders...."
As is often the case, the law is wide open to interpretation. What is a "suitable age" to signify consent, and what is "cause shown?" In Yannas v. Frondistou-Yannis, 395 Mass. 704 (1985), the Supreme Judicial Court held that "[i]n this process the first consideration is whether there is a good reason for the move, a 'real advantage.'" The parent seeking to remove the child must establish "a good, sincere reason...." (Yannas at 711.) The "Real Advantage Test" however is no less subject to interpretation than the statute. Ultimately, parents who cannot agree on these arrangements will find themselves in court.

Courts must consider a variety of factors, including whether the quality of the child's life will be improved by the change and to any improvements in the quality of the custodial parent's life. The court must also assess the interest of the custodial parent in moving, including the soundness of the reason for moving and the presence or absence of a motive to deprive the non-custodial parent of reasonable visitation. The fact that visitation by the non-custodial parent will be changed to his or her disadvantage cannot be controlling.

Given the state of our law it is likely that the primary custodial parent (for ease of reading I will refer to the custodial parent as the mother) will be permitted to leave the state with a minor child, absent some evidence that the move is being made primarily to defeat the non-custodial (hereafter, father's) parent's visitation rights. This seems especially true when an unemployed parent is seeking work out of state - an all too common occurrence in the current economic climate. So what is there to mediate?

In many ways the mediation of a child removal case is no different from any other mediation. Both parents understand that if they fail to agree their only recourse will be an imposed, litigated settlement. Litigation of removal cases can be especially harmful to post-divorce families. The financial expense and emotional bitterness of litigating of a child removal case compels a mediator to stress that the parent who "wins" in court will have won a Pyrrhic victory. It is hard enough for parents to manage long distance relationships in the best of circumstances. The rancor created by protracted litigation only makes it worse. It is this reality that makes mediation an appealing alternative in removal cases.

As I planned the mediation of my removal case I was tempted to start by educating both clients on the state of the law. Fortunately I had the good sense to ask for advice. John Fiske advised me to avoid any reference to the law or the potential outcome in court for as long as possible. He urged me to make sure that each parent have a chance to fully express their feelings and wishes for their children at the first meeting. They were to be encouraged to voice their concerns about the move without addressing outcomes too early in the process.

John suggested that by not being too evaluative, the mediator can enable the father to talk (hopefully, in a sincere and heartfelt way) about how devastated he feels about the loss of regular contact with his children. This could lead to an expression of his concern for the well-being of his kids. Only the most self-absorbed parent would be unable to recognize that any child accustomed to routine contact with one parent will be detrimentally affected by the loss of that parent. An open discussion can reduce tensions and help diffuse angry and hurt feelings.

In the safety of the mediation the mother can be encouraged to share some of her mixed feeling about moving. Her rationale for moving need not negate her genuine sorrow at how her children (and her ex-husband) will feel in their loss of regular contact with each other. Hopefully, the mother can be helped to appreciate the benefit of doing whatever is reasonably possible to help maintain the relationship between the father and their children. The father's unwillingness to consent to the move need not prevent him from acknowledging that his ex-wife's wish to move is rooted in good faith. The mother may realize that the father's objection to the move is based not only upon his own wish to see his children, but also out of a legitimate concern regarding the impact his absence from his child's life will have on their child. A conversation about "Is this move really necessary?" which airs all the pros and cons can result in each of the parties deeper understanding of each other.

Phil Woodbury suggested that I read an article by John M. Haynes entitled "John and Mary: Sharing Parenting after Divorce."(1) Haynes gave his clients a homework assignment to work on between sessions. I incorporated it verbatim in my mediated removal case and found it very effective. Haynes asked three questions:
"John, what would you want from Mary in order to agree to her position that your child should live primarily with her? Mary, what would you want from John in order to agree with his position that the child should stay behind with him? And while each of you is thinking about this question, I want you also to think about what you could offer the other in order to get him or her to agree to your position?"
Haynes insisted that the parents not state their views immediately at the session. Instead he encouraged them to give a lot of thought to the questions between sessions. If the clients take these questions seriously, they will reach creatively for ideas to make the move less onerous for the "left-behind" parent. These questions also ask both parents to "walk in each others shoes," a potentially transformative exercise in any mediation.

In Haynes' case the outcome of this assignment was an emotional breakthrough. In any case these questions should evoke a wide range of practical options for making the move less traumatic for the post-divorce family. These could include financial considerations, scheduling options for visitation, technological solutions (e.g. "virtual" visitation), cell phones, and emails. In my case the Haynes exercise helped concretize ways of truly involving the father in the important events in his child's life. It elicited: invitations for the father to visit and participate in the decision about which schools and neighborhoods in the out-of-state location the child would attend, and requests for the father join the child for important events such as birthdays and the first day of school in the new community. Constructive suggestions go a long way toward making the geographic distance feel less burdensome for all concerned.

Of course if the mother is in a position to subsidize the father's travel (and other "distance" related expenses), it could aid in reaching agreement. For parents of more modest means, financial incentives could be difficult to devise, but they are always worth considering, even if largely symbolic. If the parents can be focused on the joint task of making the best of a sad but unavoidable situation, they can come up with some very creative and sensitive ways to cause the least amount of disruption. There is almost no chance of that occurring in a litigated setting.

The exercise described by Haynes could result in surprising outcomes. Experienced mediators know that parties often take positions they don't truly believe in due to pressure from family, friends, or other "constituents" whose opinions they value. Focusing consideration on how the move might really feel if it occurred might cause that party to reconsider their position. It is up to the mediator to be alert to such a potential in each removal case and be prepared to assist in face-saving strategies that make it easier for the parties to change their positions. For example, the mother might be getting pressure from family or friends in another state to return "home" despite the fact that it is the worst thing for her psychologically. In private the mediator can assist the mother in exploring her ambivalence and if necessary, devise strategies to deal with the disappointment that her family may feel if she chooses to stay in Massachusetts. Caucusing with the mediator may be beneficial for the father as well.

Another consideration is whether the children should be involved in any way in the mediation. In litigation the children would probably be interviewed by a court appointed GAL. Depending upon the age and the consent of the parents, a mediator may offer to meet with a child. Alternatively, a mediator might consider facilitating (through a therapist or school counselor), a reasoned discussion with the minor child, in the interest of ascertaining the wishes of the child. Janet Wiseman shared an experience in mediating a removal case where the concerns of both parents about their child led her to meet with the child. After learning of the child's feelings the mother decided not to leave the state. Although some might criticize this approach as "putting the child in the middle," a mediator should consider this kind of intervention in any case where there is concern that the child's true wishes have been hidden from either or both parents.

It is precisely because one parent's move out of state can be a traumatic event that mediation should be the method of choice for allowing the family to create their own unique solution to this profound problem. The promise of mediation is that it helps parties preserve relationships. In removal cases, that is exactly the point.

Footnotes & Resources
  1. Case Studies in Family Mediation, Josey Bass, Inc. Publishers, reprinted from the Mediation Quarterly Number 21, Fall, 1988. This case study is also contained in Fundamentals of Family Mediation, by John M. Haynes, page 144-152. I commend this to any mediator dealing with removal cases and I would be happy to fax a copy to you.
  2. Jane Appell informed me that MAGAL (the Massachusetts Association of Guardians Ad Litem) had a recent training on removal cases. The materials from this training are available to members of this association on their web site at www.magalinc.org.
  3. Another interesting resource is the proposed Model Relocation Act, adopted by the Board of Governors of the American Academy of Matrimonial Lawyers. This model act is available on the association's web site at www.aaml.org.

Howard Goldstein is trained mediator and a partner with the law firm of Rosenberg, Freeman & Goldstein. He has been providing representation in family law and divorce since 1973 and is on the Board of Directors of the Massachusetts Council on Family Mediation and Board of Directors of the Massachusetts Collaborative Law Council.

He can be contacted by phone at (617)964-7000 or
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