Q. I saw your column a week or so ago and you said if children don’t want to be returned to another country a judge will listen to them and they don’t have to be sent back. In that situation the children were about the same ages as mine – 14 and 11.  I am getting different advice from my lawyer and wonder who is right.

I am remarried and share custody, but they don’t like their mother’s boyfriend and want to spend more time with me and my wife. I am moving to New York for work and want them to come with me. They are both on board, but their mom won’t let them move and my lawyer says the judge won’t let them testify and they are too young to have a say. If kids can say they don’t want to go back to another country, the same age kids should be able to say they want to move to New York, right?

A. I can see why you think that, but the prior question dealt with an international kidnapping treaty that many countries around the world have signed onto which sets out standards for cooperation with each other and forms a cohesive process to return kids who are wrongfully removed or wrongfully retained somewhere other than their home country.

Your situation is entirely different. You have are two children on the cusp of being old enough to make important decisions for themselves.  The maturity standard in the Hague Convention is different from Massachusetts case law and the entire analysis is different. You have to operate within the scope of Mass. removal law and the standard is whether it is in their best interest to move out of state with you.

It is widely accepted that children of similar ages to yours in a custody proceeding have a voice but not a choice. The court can appoint a professional to interview them or advocate on their behalf and convey their opinions.  But, just because they have an opinion does NOT mean they have the ultimate say in what the custodial arrangement is – especially if that involves uprooting their entire lives and moving with you to another state away from their other parent, their friends, their extended family, doctors, coaches, teachers and other people who have been instrumental in supporting them to this point in life.

That is a big change and one that will be in the judge’s hands if you and your ex are unable to reach an agreement.

Email questions to whickey@brickjones.com