In relocation family law cases, there are instances where a parent can move away with their child with or without the consent of the other parent. As sad as it may look, this happens very often. Parents who are not on good terms after a divorce will want custody of their child.
In most divorce cases, the custodial parent will relocate away with their child. A custodial parent is a parent with whom the child lives. However, this will cause hardships especially for the non-custodial parent. If they have a good relationship with the child, they may fear and worry for their child after the relocation.
So what causes family law relocation cases? Apart from the usual disagreement about parenting schedules, a parent moves away for the following reasons:
- A bad fight with their ex-partner after the divorce
- Spite and revenge
- Domestic abuse or family violence
- Failure to agree with equal shared parental responsibility
- A better environment which results in the children’s better living situation
- Better job opportunities for the custodial parent
While all of these are possible causes of child relocation, we should arm ourselves with what’s legal or not. One should not simply take away their child without the consent of the other parent.
What the Family Law Says About Child Relocation
Divorce is always not easy, especially if there are children. The age-old question will always come up in such cases.
“Will the child stay with the mother or the father?”
Child custody is a controversial topic and ignites the egos of parents on who can take the child. Yes, any parent can back up their claims for child custody. However, they cannot simply state their claims without the law’s conditions. Under Section 60CC of the Family Law Act 1975, the courts will always consider the child’s best interests.
This principle from the Family Law Act explains that children do not deserve to receive abuse or domestic or family violence. All children deserve to be treated properly so they can grow into proper individuals. The Act also ensures that a child enjoys a significant and substantial time with their parents.
Before any party wishes to take things to court, parties should attempt family dispute resolution to resolve their conflicts. Courts will only hear family law cases if both parties fail to reconcile during family dispute resolution.
Relocation in Family Law: How Does the Court See It?
The Federal Circuit and Family Court of Australia (FCFCOA) defines relocation as:
“Moving with your child (or children) to another town, state or country”
The FCFCOA can deny relocation if it significantly changes how the child will spend time with the other parent or significant person in the child’s life. Caregivers should talk with the other party if they want to relocate with the child.
Usually, during a divorce, parents can draft their very own parenting plan to facilitate custody schedules. Relocation may disrupt these parenting plans and cause tension and disputes among ex-couples. However, if both parents agree on the relocation, they may agree to write a new plan. In some cases, both parents may even choose to relocate.
If this is the case, both parents must reach an agreement first, and then have the court make the relocation order.
However, if both parents disagree, the court will require the custodial parent to remain in the state or transfer custody to the non-custodial parent (or vice versa). Child custody relocation in family law varies greatly from state to state, especially when it comes to the following:
- Requirements for child relocation
- What notices must be provided
- Whether there are consent requirements
Help, My Ex Relocated With Our Child Without My Knowledge!
Now, this is a serious case. With the tension and disputes that divorce brings, this can happen in divorce cases. A parent can seek recovery orders if they think their child was abducted or was taken away from them without their consent or knowledge. This court order can help a child return to a:
- Parent
- Person who holds a parenting order; or
- Person who has parental responsibility
Read more about recovery orders here: Recovery Orders Family Law | JB Solicitors
Several states only allow relocation in family law matters if there is a custody agreement in place. The custody agreement must also contain a provision that allows relocation and a proposed visitation schedule. This typically takes place during the original custody hearings and is included in a clause in the child custody plan.
So, it’s best to double-check any custody agreements in place during child relocation cases.
Applying for a Relocation Order? Here’s What the Court Needs
The court can issue a relocation order for people who want to move away with their children. Both parties may be able to reach an agreement on visitation schedules. If successful, both parties can enter into a written parenting plan or apply for consent orders at the court. On the other hand, courts may require a relocating parent to return if they don’t have the other party’s consent.
A parent cannot simply move away with her child after divorce. They must provide good reasons to the court before doing so. Moreover, these reasons must be in the child’s best interests. Courts will balance the rights of the relocating parent with the:
- Child’s views with consideration to their age and maturity
- Child’s right to have a meaningful relationship with both parents
- Protection of the child from physical, emotional, and psychological harm
- Nature of the child’s relationship with the parents and other family relatives
- Parent’s willingness to enable and encourage a relationship between the child and the other parent
- How moving away will likely affect or effect the child’s circumstances
- Maturity, sex, lifestyle, and background of the parents and the child
- Relevant information that the court considers.
Is Your Child Relocating to Another Country?
This type of relocation is different. Instead of a parent moving to another city or state, the parent will move away from the country. Similarly, a parent who wishes to take a child overseas will require the other parent’s consent. If a parent moves out of the country without the other parent’s consent is illegal.
Even with consent or a court order, it’s illegal to keep a child overseas beyond the agreed-upon terms. For example, the parent exceeded permitted dates or travelled to unauthorised locations.
So, how does a successful overseas relocation in family law matters work? The child should receive a passport with the written consent of the parents who have responsibility for the child. Overseas holidays are also no exemption as it will still require the other parent’s consent.
Parties with parental responsibility who give written consent can successfully lodge a passport application. Failure to do so requires you to make a written request to the Department of Foreign Affairs and Trade (DFAT). Similarly, parents can also apply to the court for an order permitting a child to travel overseas.
If a parenting order exists, it is a criminal offence to take a child out of Australia without consent or a court order.
Knowing More About Relocation in Family Law With JB Solicitors
Child relocation is a big decision to make as a parent. You must consider if this is in the child’s best interests and if your ex-partner will agree to it. So, you should tread carefully before you decide to relocate with your child. Moreover, relocation in family law varies from state to state and this can stress you out when you deal with it alone.
Luckily, we at JB Solicitors will walk you through the complex path of relocation with our jargon-free legal advice. Our seasoned lawyers can help you draft parenting orders that will cater to your needs as a parent. We also have mediation services for parents who want to come to an agreement about parenting arrangements.
Send us a message and seek legal advice about relocation in family law.
