To relocate a child takes a lot of planning and consent from the other parent after a divorce. While it is possible to relocate a child, there’s much to consider such as:
- Why is the location necessary?
- How will parents share parental responsibility and manage child support?
- Did the court approve the relocation of the child/children?
- How far away can the parent move with their child?
- What if one parent did not consent to the relocation?
Divorce is indeed messy and will also take a toll on children. However, some parents forget this and think that their interests are prioritised instead of their children. This is wishful thinking for parents and will harm children who deserve proper parenting. Let’s read on to learn more about how to relocate a child under Australian family law standards.
Why Prioritise the Child’s Best Interests?
The Family Law Act 1975 prioritises the child’s best interests in divorce matters. This means that the court has the legal obligation to protect children from physical or psychological harm, abuse, neglect, or family violence. In the case of child relocation matters, children may experience such harm and affect their overall growth as individuals.
Parents should think twice or thrice when they make decisions about parenting matters. Will the child still have a meaningful relationship with both parents after the relocation? What if one or both parents are abusive to the child? Will the relocation deprive the child of seeing important family members to them?
The child’s relationship not only ends with their parents but also with other relatives like grandparents or even close friends.
Why Do Parents Relocate a Child?
Let’s look at some reasons why parents relocate with their children:
- A parent gets a new job or career opportunity that will help better with finances like house bills and child support
- The other parent has a history of family violence or that parent has little to no contact with the child
- Skype/Zoom/Messenger or even telephone contact is adequate to maintain a meaningful relationship between the child and the non-relocating parent
- Both parents are willing to agree on the relocation and facilitate a parental relationship that works for them. For example, the moving parent will spend time with their child during school terms. Meanwhile, the other parent will spend time with their child during school holidays.
How Will Long Distance Parenting Work?
Let’s say that a parent was able to legally relocate a child with them. If this is the case, how will long-distance parenting work? Separated parents who agreed on this arrangement means they agreed on equal shared parental responsibility (ESPR). Equal shared parental responsibility is a type of responsibility that separated parents are obligated to follow.
That means both parents are responsible for making long-term decisions for their child. The Family Court sees that it is in the child’s best interests when both parents have ESPR. For example, separated parents can discuss over the phone where their child will study next year, regardless of their distance.
Family Law Changes to ESPR
Section 61DA of the Family Law Act establishes a presumption that ESPR is necessary for the child’s best interests. However, this has confused unrepresented divorce parties. Such parties mistook it as mandated equal care. Hence, Australian family law made new laws about parental responsibility following the abolishment of its presumption.
On May 6 2024, courts may order shared parental responsibility and require parents to consult each other about major long-term decisions for their child. They should genuinely attempt to reach an agreement about such decisions. Furthermore, the new legislation encourages all parents of children under 18 to engage in similar consultation. The child’s best interests are still paramount for all consultations.
Note that existing parenting orders made before this date are still valid and must be followed.
How Do You Legally Relocate a Child?
| If both parents agree on the relocation | If both parents cannot agree on the relocation |
| 1. Seek independent legal advice before opting for consent orders. These are orders that involve two parties that agree on parenting arrangements. 2. Afterwards, both parties can apply for consent orders. 3. Wait for the court to review your application. In this case, the family court will check if: – The arrangements are in the child’s best interests; and – There are no current proceedings that they need to deal with 4. Once the court finalises the consent order, there are certain circumstances where you can change the arrangements. Click here to see how. | If both parents cannot agree on the relocation the moving parent can apply for a parenting order. This type of court order typically deals with parenting arrangements after a divorce. A parenting order can: – Grant permission to a parent to relocate a child with them; or – Prohibit the other party from relocating with a child. For example, Parent A can prohibit Parent B from relocating with their child within 20 kilometres of the child’s school. |
A successful relocation application should be timely and treated urgently.
Factors of a Successful Child Relocation Case
As previously stated, the court will take into account in determining whether a parent who will relocate their child with them is in the best interests of the child. Typically, the court will review past cases to determine whether the relocation is best for the child’s life. They may include the factors below.
- The other parent has no time or very limited time with the children.
- The other parent has family support where they will move. This is an important factor to consider especially if they had little to no family support where they are currently residing.
- There are financial difficulties where the other parent is currently living. Hence, the relocation destination has either more financial support or job opportunities.
- Assumed presumption of equal shared parental responsibility
Read: Custody Calendar: Perfecting Your Parenting Plans | JB Solicitors
Relocating a Child Without the Other Parent’s Consent
Sadly, some parents relocate a child without the other parent’s permission or knowledge. They do this during desperate times or if they hold a grudge against the other parent. This may endanger the child’s best interests and, of course, cause illegal matters to resurface. As we discussed, it is important to seek consent orders or parenting orders for a child’s proposed relocation.
What if one parent relocates without the other’s permission? Then, the other parent can apply for a recovery order. A recovery order can help return a child to a parent who seeks them. The Australian Federal Police will typically help with such cases. To know more about recovery orders, click here.
We also have an article about parental alienation which is closely tied to parents who relocate a child without the other parent’s permission. Click here to read more.
Final Thoughts
The court considers many factors but does not provide any specific guidance on how much weight is to be attributed to specific factors. It is important to note that each case is decided upon their own unique facts to help conclude whether the relocation of a child is in the best interests of that child.
Importance of Seeking Legal Advice
It’s important to seek legal advice when a parents wants relocate a child. Family lawyers have the best grasp on family law matters and will know how to approach such matters. Not only they can handle parenting arrangements, but they can also help with property matters. Such family law matters need legal professionals who know the proper approach.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start and will be sure to help you out every step of the way. With years of experience under our belt, we pride ourselves in making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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