Thinking of moving with your kids after separation? Here’s what you need to know
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Moving your child (or children) to another town, state or country is a big decision – but how does affect Family Law cases?
It’s a fantasy that many of us have – packing up our family and moving away to start life afresh. But for those who are or have gone through separation or divorce, it’s also an incredibly complicated decision that not only affects your children, but also the other parent.
In fact, according to Family Lawyer Ana Anzani – one of the partners at Nicholls Anzani Family Lawyers – one of the most common misconceptions people have is that they can relocate nationally or internationally without the consent of the other parent, or an order of the court.
“When a parent seeks to relocate a child’s place of habitual residence, there are added complexities and additional considerations the court must undertake if the other parent does not agree to such relocation,” she explains.
“Parents simply assume that they can relocate the child because of their own right of movement.”
“Whilst a parent has every right to seek a relocation, the same right applies to the non-relocating parent to say no, particularly where they believe such a move could negatively impact their relationship with the child.”
But that doesn’t mean you need to put your dreams of living somewhere else on hold. In fact, the sooner you speak to a Family Lawyer, the better for everyone involved.
“Every relocation is unique and assessed on a case-by-case basis. There are cases where it is in the best interest for the child to relocate and cases where it is not in their best interest,” she explains.
“It is not automatically granted or denied. Rather, the court carefully examines the proposed relocation. Seeking immediate legal advice is recommended.”
Specialising in family law and the resolution of complex matters – usually involving children – and as a mother of two, Ana understands how complex and emotional relocation cases can be for both parents.
Explaining that the child’s best interest remains the paramount consideration in all cases, from the effects of remote work to emergency situations where someone needs to move quickly for reasons such as diplomatic appointment, family violence and safety concerns for both the relocating parent and child, she’s seen it all.
And no matter if it’s moving states or moving countries, she says that the court must balance one parent’s rights to relocate with the other parent’s rights to have a relationship with the child.
“However, international matters are more complicated in that it is more challenging to determine what care arrangements are practical given the distance. It also requires considering several factors such as costs for flights and accommodation and the practicality of proposed time for the non relocating parent the impact on the child’s schooling and maintaining their relationship with the other parent, other family, friends, and community,” she explains.
“The courts will need to consider the relocating parent’s reason for the move, the practical implications of the proposed move, and the feasibility of maintaining regular contact between the child and the non-relocating parent.”
But do you need to have court approval, or can you just get the other parent’s consent? Well, as Ana says, it depends on the situation.
“The parents’ consent is sufficient; however, it is highly advised that it be incorporated into consent orders (to make it legally binding and enforceable) to avoid either parent disputing the agreement ,” she explains. It’s also a good idea to formalise time arrangements between the child and the non-relocating parent.
“[You shouldt give notice] as soon as possible, where it is safe to do so. For example, there are circumstances where parents ‘escape’ due to serious allegations of family violence and abuse. The non-relocating parent has the right to have sufficient time to assess whether the relocation, in their view, is in their child’s best interest.”
“The parent wishing to relocate will often provide what they view as a valid reason, for example, employment opportunities, or lack of support in their current location,” she says.
And for the parents who are on the receiving end of a relocation request, Ana says that because each case is unique, the court can oppose a relocation, depending on the situation.
“The child’s best interests remain the paramount but not sole consideration, a parent wishing to move does not need to demonstrate “compelling” reasons, a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.”
Seven things you need to remember
- You can’t just unilaterally make the decision for your children to move away.
- Both parents have rights.
- Every case is different.
- International moves are more complex.
- Seek legal advice early.
- Give proper notice
- Formalise your agreement
Have more questions about relocation? Visit nichollsanzani.com.au or call (02) 7259 4130 to speak with the team.
