When parents separate, a very difficult issue that sometime arises is when one parent wishes to move to another community with the child or children of the relationship.
If you are thinking about moving with your child, it is best to try to avoid a dispute and discuss those plans with the other parent. The most ideal resolution is that the parents agree about how to proceed together, without having to get lawyers and judges involved.
In some circumstances (but not all) the Family Law Act says that a parent wishing to move, must give the other parent 60 days' notice in writing before moving with their children. Regardless of whether this provision of the Family Law Act technically applies to your situation, it is a good idea to give this notice anyway. In the written notice you should include when you plan to move and to where you would be moving.
The parent receiving the notice then has 30 days to file an application to stop the move. In theory, if the receiving parent does not file the application within this timeframe, the moving guardian is free to move (but the Courts are probably going to be lenient on this 30-day deadline).
If the parent receiving the notice opposes the move, the parent wishing to move will have to prove to the court that it is in the child’s best interests to move. This is difficult because invariably the reason for the move is the parent’s decision, not the child’s. A move will invariably mean that the other parent’s time with the child is reduced and harmed.
When considering a move, the only real consideration is the child’s best interests, not the interests of the parent wishing to move, nor those of the parent opposing the move for that matter. This is easy to say, but more difficult to put into practice.
As a family lawyer, these child mobility cases are among the most difficult because there is no middle ground; either the move happens or it doesn’t. This makes it difficult to find a resolution and as a result this is a topic that unfortunately often ends up in court.
If the child lives primarily with the parent wishing to relocate, that parent may feel controlled by having to get approval from the other parent for the move. This is a natural feeling, but unfortunately not supported by the law. Your child’s best interests will almost always include having a meaningful and ongoing relationship with the other parent.
Some of the things the court can consider when deciding if the move is in the child’s best interests and made in good faith are:
- The proposed arrangements to continue the child’s relationship with the parent who is not moving and other important people in the child’s life;
- The child’s health and emotional well-being;
- The child’s views, unless it would be inappropriate to consider them;
- The child’s relationships with significant persons, both in the current location and the location of the proposed move (for e.g. grandparents, half siblings, aunts, uncles, cousins, friends, etc.);
- The history of the child’s care;
- The child’s need for stability;
- The ability of each parent to exercise their parenting responsibilities;
- The parents’ ability to co-operate;
- The reasons for the proposed relocation; and,
- Whether the proposed relocation is likely to enhance the child’s general quality of life.
With the passing of the Family Law Act in 2013 this area of the law became, arguably, more complicated in that there are different tests that apply in different situations. It is arguably more complicated even though, one presumes, the intent of these new provisions were to make this area of the law more predictable.
Those parents who are faced with a child relocation issue that they cannot resolve amongst themselves are well advised to seek legal advice from a lawyer experienced in these issues to get assistance on how to navigate this very difficult issue.