What happens if one of you wants to relocate to another city or country after your separation?
Life happens, and there are many reasons why one parent might want to live somewhere else. It may be that one of you can’t afford to buy a home in the same town or city, or one of you might want to return to the country you were born in and still have ties to.
Whatever the reason, it can be a difficult situation to resolve, and there’s often little room for compromise.
Guardianship
Where a child lives is called a ‘guardianship decision’. Parents, as guardians of a child, usually have an equal say about where that child lives - even if the child lives with one parent most of the time and only has limited contact with the other parent.
What if one of you wants to relocate to another country?
If you think the other parent may leave without your consent, you must make your views known in writing to the other parent. If that is ignored and the other parent continues to make plans to relocate, you should speak to a family lawyer sooner rather than later.
If you think the other parent may leave the country without your consent, again, object in writing. Your family lawyer can help you make an application to the Family Court to prevent the removal of your child. These cases are dealt with on an urgent basis and the Court can require the other parent to surrender your child’s passport and travel documents if necessary.
Border alerts can be put in place very quickly. An alert is sent to Interpol to ensure the parent is stopped at the border if they try to take your child out of the country. To make this type of application, you need to provide evidence showing there is an imminent threat of your child being taken out of New Zealand.
If your child has already been taken out of New Zealand, it can be very difficult to get them back because it can be argued that your child has already settled into his or her new environment. But, depending on the circumstances, your lawyer can help you make an urgent application to the Family Court to get them returned.
The amount of difficulty involved will depend on whether your child has been taken to a country that belongs to the Hague Convention – the organisation that deals with international child abduction. The Hague Convention allows the New Zealand Central Authority to file a claim in another country that belongs to the Hague Convention for the return of a child. If your child has been taken to a country that does not belong to the Hague Convention however, it can be a lot more difficult, but it is still possible that an order for the child’s return might be accepted, but time is critical.
When deciding what factors does a Court take into account?
If a relocation application is made to the Family Court, the Court will weigh up the advantages and disadvantages of the child’s relocation. The most important consideration for the Court is the welfare and best interests of the child. There are several principles set out in the Care of Children Act 2004 that the Court takes into account, including:
- The child must be kept safe and protected from all forms of violence.
- The child’s parents and guardians should have the primary responsibility for the care, development and upbringing of the child.
- There should be ongoing consultation and co-operation between the child’s parents and guardians.
- There should be continuity in the child’s care, development and upbringing.
- The child should continue to have a relationship with both parents, and the child’s relationships with his or her family or whānau should be preserved and strengthened.
- The child’s identity (culture, language, religion) should be preserved and strengthened.
Other factors the Court will consider depend on the circumstances but could include:
- How the relocation would impact the child’s relationship with each parent, wider family and whanau.
- The views of the child.
- The financial consequences of the parent relocating vs staying.
- The practical considerations for how the child would see each parent.
- The reason the parent wishes to relocate.
- How settled the child is.
- Access to education, housing, social networks.
Summary
If you’re thinking of moving to another city or country with your child or you’re concerned the other parent may be, speak to a family lawyer as soon as possible to find out your rights and the options available.