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Family Law

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General Practice in NH and MA


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The family motto “Deo Duce Ferro Comitante” has been translated here as “God guides my sword” but a more common translation of “Deo Duce Ferro Comitante” given is “With God as my leader and my sword as my companion.”



Joseph Caulfield
Relocation

In Massachusetts, GL c. 208, sec. 30 governs when a parent wants to relocate with a child to another state. The child’s consent is sought. Interstate relocations are governed generally by theories of “real advantage” and “best interests.”

In New Hampshire, RSA 461-A:12 requires that the party who wants to move further away from the other party, and take the children, prove that the move is for a legitimate purpose and that the move is reasonable in light of that purpose. The moving party’s burden of proof is the lowest burden recognized by law, a preponderance of the evidence, that what that party contends is more likely than not.

Beware of a GAL trying to increase the burden of proof, adding an additional requirement that the moving party prove that the move must “assuredly” result in certain things. This is not the law, nor are GAL’s “conclusions” binding on the Court.

When the moving party proves that the move is for a legitimate purpose and that the move is reasonable in light of that purpose, the burden shifts to the other party. Then that other party must prove, by a preponderance of the evidence that the move is not in the childrens’ best interests.

In making this determination, the Court relies on the factors set forth in Tomasko v. DuBuc, 145 N.H. 169 (2000), which include:

(1) each parent's reasons for seeking or opposing the move; (2) the quality of the relationships between the child and the custodial and noncustodial parents; (3) the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent; (4) the degree to which the custodial parent's and child's life may be enhanced economically, emotionally, and educationally by the move; (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements; (6) any negative impact from continued or exacerbated hostility between the custodial and noncustodial parents; and (7) the effect that the move may have on any extended family relations

Considering these factors, Judge Dalianis, in Heinrich and Curotto, 160 N.H. 650 (2010), cautioned:

The trial court's analysis focused upon factor (3), the move's impact upon the children's future contact with their father, and factor (4), whether the move would enhance their emotional, financial and educational lives. Although there was evidence that relocation would have greatly enhanced the children's lives (their mother would have had a lucrative job, they would have lived near extended family and been able to attend private school), the trial court denied the wife's request to relocate, to my mind, principally because, if she moved, the husband's time with the children would “noticeab[ly] decrease.”

I find this troubling. If an involved parent's regular contact with his or her children is sufficient, in and of itself, to bar the other parent's reasonable request to relocate for legitimate reasons, will it ever be possible for one parent to relocate when the other parent is thoroughly involved in the children's lives?

I’ve tried a number of these relocation cases in MA and NH. They are not easy cases, legally or emotionally, for the parties or for their lawyers. Often, one party feels trapped and the other party feels the children are being stolen. It’s very important for the parents, as well intentioned as they may be, not to put the children in the middle. Though, of course, the children’s’ best interests must be explored and presented to the court.

As I just wrote, not easy cases.