Relocating with a child after separation is not uncommon however, parents should be cautious when considering a move as there are laws that relate to moving with children, and what you should or should not do needs to be carefully considered even if no Court Orders in place.
Where parents have separated or divorced, there may be a situation when one parent is looking to relocate with their child. A desire to move may be triggered by an employment opportunity or perhaps in an effort to be closer to family members for support. However, if you are the parent who wants to relocate, you may need to get the other parent’s consent before you move if it will impact the time spent with each parent and the overall workability of the parenting arrangements.
Regardless of whether you are a parent or a grandparent wondering ‘Can a parent move away with a child?' or whether you yourself want to know, ‘Can I move with my child?’, these are the questions we will answer in this article. We will explore what to do if one parent moves a child without the other parent’s consent, the possible consequences of relocating without permission and if you are looking to relocate, the most effective way to approach it.
As family lawyers, we assist parents with advice on both sides of the issue of relocating with children. This article has been written to provide you insights into what the law says about relocating with children and what the Court will take into consideration. There are numerous factors that are considered with relocation so it is important to get advice tailored to the circumstances before relocating.
Can I move with my child?
The two guiding rules for all decisions relating to children in family law are as follows:
- The child’s best interests must always be the paramount consideration; and
- The child must always be protected from harm and or being subjected to abuse of any kind.
Most of the time, it will be in a child’s best interest to have a meaningful relationship with both parents. There are exceptions. Generally speaking, if the relocation of a child will mean that their relationship with one parent will be negatively impacted, a relocation may not be permitted. Geographic proximity can be important, but not always, as this next passage explains.
How far can I move with my child?
If you are separated or divorced and planning to move suburbs with your child, and the move will not affect the parenting arrangements you have with the other parent or their schooling arrangements, then, generally speaking, you should be able to relocate with the child. Although you should notify the other parent where you are moving to - if safe to do so. However, if you have plans to move further away, including interstate, overseas or somewhere where the move will impact the other parent's ability to spend time with the child, or even somewhere which would be too far away for a child to continue to attend at the same school, the answer may not be straightforward.
If you and your child’s other parent can come to an agreement about how your relocation can be worked to ensure your child can continue to maintain a meaningful relationship with both parents, then a move may well be possible. Talking with the other parent (if safe to do so) and obtaining their consent is important.
Sometimes long-distance relocation can be managed between parents by agreeing to alternative arrangements. That may look like one parent having the child in their care for the duration of school holidays and regular phone or video call contact in between holidays. Shared care arrangements should take into account a parent’s work hours, the children's ages, amongst other considerations. There is no one right way.
If parents cannot agree to the relocation, an application to Court may be necessary.
Arrangements can be agreed upon between parents, however, it is harder if Orders have been previously made.
Parenting Orders and Relocation
If you have Court Orders (whether decided by a Judge or made by Consent) in place for your parenting arrangements, your relocation may not be possible.
It is important to note that the Court treats Orders by consent the same as if you had Orders made by a Judge at a trial. If parents cannot agree to change the Court Orders - the Court is reluctant to intervene and allow an application to vary the parenting Orders unless there has been a “substantial or significant change”.
In the landmark case of Rice v Asplund (1979), variations to existing Parenting Orders were allowed when the Court was satisfied that one parent’s circumstances had changed significantly enough to warrant a re-visit of the Orders. There was enough evidence to support that the child’s best interests may have been compromised if the Order was to remain as it was.
If you and the child’s other parent have previously formalised your agreement with Orders, and you want to vary the Orders due to a significant change in circumstances, then you will need to get the other parent’s consent, directly or through a negotiated agreement, or independently apply for a variation from the Court.
If you wish to investigate the avenues available to you, to have the best chance of success in your circumstances, seek specialist legal advice from a family lawyer before doing anything. When clients come to us in matters like these, we tell them what is appropriate and either handle the negotiation process with you with your child’s other parent, or if you have Court Order, determine what, if any, variations may be appropriate.
At this point, it is important you are aware that if you, or the other parent act in a manner that results in a breach of any Orders in place, there are likely to be serious consequences.
Consequences For A Parent Who Relocates A Child Without Permission
If a parent makes the decision to move without seeking permission from the other parent, or it is a breach of the Orders in place, they could face numerous potential consequences. This may include:
- Immediate requirement to move the child back
- A variation to existing Court Orders (reducing time)
- Losing access to the child
- Jail time (for serious offences)
What To Do If A Parent Moves A Child Without Permission
If you are the parent whose child has moved away as a result of the other parent making a decision without permission or without regard to Orders in place, getting advice and acting early is critical. You may be able to make an application for an Urgent parenting order or a Recovery Order. The sooner you act, often the better your chances are of getting your child returned until the longer-term arrangements can be resolved or determined by the Court.
If there is an Order in place, parents may be able to apply for a contravention of the Orders if the move means that the Orders are no longer being complied with. From there, there may be multiple remedies available to you to bring them back or to make up for the time that you have lost. In some cases, there could be fines and prison time for them to face if the breach is significant enough.
The Best Approach To Relocating With A Child After Separation Or Divorce
Relocating with a child after divorce needs to be thought through carefully, and parents should seek legal advice early.
Often, the best course of action is to talk to the other parent about the potential move. Working together as parents means that you have negotiated an agreement that works for both parents and for the children involved. If you want to know your options or you cannot reach an agreement, this is where specialist family lawyers can assist to help you with the negotiation process or providing options to apply to the Court.
Getting advice early - whether you are the parent wanting to move, or the other parent is trying to move with the child means you know your options and have a plan tailored specifically for your circumstances.
Phillips Family Law is an award-winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision-making process, we can make you aware of your options. To discuss your situation confidentially, phone (07) 3007 9898 or secure a time by clicking here.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.