Moving with the Children
Can I move with my children?
If a guardian is thinking of moving with the children, then there are a lot of things to consider.
What should I do first?
You should talk with the other guardian and anyone who has contact with the children before you take any steps to move. You might be able to work out a parenting schedule with the other guardian, and avoid a court application. You could also use a mediator to come to a new agreement. For example, you might be able to agree that the children will be with the other guardian on all school holidays and for an extended period of time over the summer months. You could also suggest ways that you could use to ensure that the guardian remains in contact with the children using technology (for example, purchasing a cell phone so that the other guardian can send text messages, use Facetime, send videos and can call the children at any time).
You could also talk to a lawyer to find out what your chances of being allowed to move with the children are, before taking any steps.
Do I have to give the other guardian notice of the move?
Yes, if you have a parenting agreement or court order, then those documents will usually require that you give notice. Even if you don’t have a formal agreement or order, moving will usually have a pretty big impact on the children’s relationship with the other guardian so it’s usually best to provide them with notice.
If you choose to take the children and move without providing the other guardian with notice, you might be accused of abducting the children. The other parent could apply for an order for the children to be returned, and there could be long-term consequences on the parenting arrangements.
What if the other guardian doesn’t want me to move with the children?
You will need to ask permission from the court before you can move. You can bring a court application for this. The other guardian can also bring an application in court. The applicant would be asking the judge to order that the children cannot move with you.
The judge has to look at certain factors when deciding if a move is in the children’s best interests.
FACTORS THE JUDGE WILL CONSIDER
Judges have an overriding concern when dealing with cases such as this: What is in the best interests of the child? Everything else is secondary to this consideration. In making this determination, judges consider a number of factors, such as:
- The judge will think about the existing parenting arrangement and the relationship between the children and each parent.
- The law says that it is desirable for the children to have maximum contact with both guardians. The person who wants to move may want to have some plans in place about how the contact between the children and the other guardian will continue, and what efforts the moving person is willing to undertake to ensure that this occurs.
- The judge will consider the views of the children, if it is appropriate. A very young child will not usually have a say in the move, while an older child or teenager would probably be asked to provide their opinion.
- The reasons why the parent with custody is moving. Those reasons will only be a factor in the decision if the judge decides they are relevant to whether the move is in the best interests of the child..
- The judge will also consider the disruption that would occur to the children if there were to be a change of who the children live with. For example, if the moving guardian has always spent the most time with the children, what effect would it have on the children if the other guardian were to become the primary caregiver?
- Finally, the judge will think about the disruption to the children that would occur because of the removal from family, schools and the community. If there is an extended family in the current community that the children spend time with, and the moving guardian wants to go somewhere where there are no other family members, this will have a large impact on the children. Moving schools can also be very hard for children, especially if the child is involved with school activities. The judge will consider all of these factors before making a decision on what is in the children’s best interests.