25 Apr When Is a Mother or Father Able to Relocate a Child After Separation? Key Circumstances Explained
Divorce and separation are naturally times of change. And sometimes, change means relocating to a new city, state or even country. But what do you do if you have children? Can you relocate with your child after separation? Do you need the other parent’s permission?
Under Family Law, there are some rules about when a parent – either a mother or father – is able to relocate with a child after a divorce or separation. Here, we explain the key circumstances and what you might need to consider before making a move.
Shared parental responsibility
When you decide to separate, there’s a lot to navigate. And making arrangements for the care of your children is one of the most important issues to nail down.
When it comes to making arrangements for children, divorcing or separating parents have shared parental responsibility (absent any Court orders that say differently). This is the responsibility to make joint decisions for any long-term issues about their children. The Family Court indicates that these could include decisions around education, religious and cultural upbringing, health and living arrangements.
Typically, it doesn’t matter if you’re the custodial parent or not – you still have this decision-making responsibility.
Certainly, relocating with your child falls under the category of long-term issues, and as such, it also falls under the joint decision-making responsibility. That doesn’t mean that there is no way for you to move with your child after separation, but whether or not you can will depend on the unique circumstances of your family situation.
Key Circumstances: When a Mother or Father Can Relocate With a Child After Separation
So when can you relocate with your child after separation? There are only two ways:
- Your ex agrees or
- You get a court order.
If your ex agrees
Under the Family Law Act of 1975, you can relocate with your child if your co-parent gives their consent to the move. You will need to get this consent even if you are the custodial parent (that is, the primary carer or even the sole carer). Unless there’s been a court order giving you sole parental responsibility, then you must get your co-parent’s consent.
If your co-parent gives their consent, get in touch with our team to put that agreement into writing. We can also help you get a consent order from the Family Court to make the agreement legally binding and enforceable. This just keeps things clear for all parties involved.
If your ex does not consent to your relocation, you cannot move with your child. If you do, this is considered unilateral relocation, and you will likely be ordered to return with the child and may face penalties if you don’t. If you abruptly move without telling your ex, you could even be charged with abduction and face criminal penalties.
The only way to relocate with your child without the co-parent’s consent is via court order.
If you get a court order
If you haven’t been given consent to relocate from your ex-partner, you can go to Family Court to try to get a court order to allow the move. Before you can approach the Court, however, you do need to attend some sort of family dispute resolution – such as mediation.
If you’ve tried mediation or negotiation and you haven’t been able to come to an agreement with your ex, you can then proceed to Family Court. The court will then consider your request to relocate with your child in light of whether or not it’s in the best interests of the child.
To determine whether or not the move is in the best interests of the child, the Court will likely consider whether the move:
- Is permanent or temporary.
- Allows the child to have a meaningful relationship with both parents.
- Allows the child to have a relationship with other family members.
- Will negatively or positively affect the child’s life, including friendships, education and extracurricular activities or hobbies.
- Will protect the child from psychological or physiological harm, exposure to harm or domestic violence.
The Court will also look at the reasons for the move. If it provides a better life for the child because it gives the parent better employment opportunities, more family support or better living conditions, the Court will be more likely to grant permission for the move. The Court will also be more likely to grant the order if the parent moving with the child has made arrangements for the child to stay involved in the other parent’s life and the costs aren’t too high.
Depending on the child’s age and maturity, the Court will also ask the child their own views on the move. But in all situations, the paramount consideration is whether, when taking all factors into consideration, this move is in the best interests of the child.
Moving overseas
If you’re keen to move overseas with your child, the Court will consider a few additional elements before making a decision.
For example, the consideration of how easy it will be for the child to maintain a strong relationship with the other parent will become even more important. The Court will also consider the costs that will be incurred by the child or the parent having to travel overseas, and how reasonable this is when measured against the other factors.
No parent should ever try to take their child out of the country without the consent of the other parent or a court order. If this happens, you do have some options. You can apply for a recovery order to have the child brought back to the country, for example. And if you are concerned that this could be a risk, you can have your child placed on the airport watch lis, which will stop your ex from taking them out of the country in the first place.
Timing for getting a court order
Court orders can take quite a bit of time to come through the legal system. They can take months or even years, and in the end, there’s no guarantee that you’ll get the result you want.
If you’re keen to move forward with seeking a court order, it’s best to get the advice and support of a family lawyer as soon as possible. They will be able to talk you through any issues and help you move things along more smoothly and quickly.
Getting support
Relocating with your child after a divorce or separation can be a bit tricky, but it’s not something you have to navigate alone. Whether you’re considering a move or wondering how to best respond to an ex’s request to make a move, the more you understand about your rights and the legal process involved, the better.
We’re here to help. Get in touch with Toomey Family Law today for legal advice and genuine understanding and with help making decisions that are in the best interests of your child and your future.