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Can I Move Away with My Kid? You May Have to Jump Some Legal Hurdles First

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Can I Move Away with My Kid? You May Have to Jump Some Legal Hurdles First

I’ve talked before about whether a parent who has sole or joint custody of a child is entitled, after separation or divorce, to move with that child to another location, but one that makes it hard for the other parent (who we will call the “access parent”) to exercise his or her access or custody rights.

In deciding whether to allow such a move, court will consider the facts and assess various factors. First of all, there are some guiding principles that will dictate a court’s decision:

• The access parent’s contact with the child must be maximized, and the move must be in the child’s “best interests”. These are the two key factors in the court’s decision.

• That is not to say that a move is always a bad thing, or that it will always be prevented by a court. A move by the parent that effectively restricts the other parent’s access can nonetheless still be in the child’s “best interests.”

• In cases where the proposed move is to a location far away, a court may have to balance the impact on the child of losing the relationship with the access parent, versus the impact of losing the relationship with the custodial parent.

• The wishes of the child, particularly an order child, can be considered by the court in making its determination.

• The plan to move must be specific. The court may refuse to allow the move to take place unless the parent proposing it has put forward a specific, realistic plan for relocating to a specific location. A blanket request to move somewhere – anywhere – else may not be granted.

Against those background principles, there are certain other factors as well:

• The parent’s reason for the move is generally not a consideration – unless the motive or reason actually reflects badly on that parent’s assessment of the child’s needs, or on the parent’s’ judgment about how those needs should be fulfilled.

• Similarly, the necessity for a move (for example to find work) is not relevant except in exceptional circumstances. The relationship of the child to each of its parents is a far more important factor.

• Certain other factors are do not govern the outcome – unless they relate directly to the child’s best interests. These include: the lifestyles benefits of moving; the custodial parent’s own views and personal preferences about the move; and his or her level of “happiness” in the current location.

Finally, the court can consider some external factors as well:

• A new relationship is not always a good reason to move. Specifically, if the parent’s plan to move the child is prompted by the desire to join a new relationship partner in another city, the court can consider the strength of that new relationship in making its decision, as part of many other considerations listed above.

• Similarly, a court may refuse a parent’s request to move even to accept a job in another city, if it is not satisfied that he or she has made genuine efforts to find comparable work locally.

• The proposed move must be legitimately-motivated. For example if the parent is proposing to move with the child solely to frustrate the other parent’s access, the court will certainly refuse to grant the request.

Note that a parent’s unsuccessful bid to move with a child can have some unintended or unanticipated consequences: the court can take the opportunity to change custody, i.e. give it to the former access parent instead.
Are you considering a move in the near future, and one that would move your child away from his or her other parent? We can give you quality, fact-specific advice.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

So what do you think?  What factors should decide whether or not a parent should be allowed to move with a child?