Child relocation disputes - What happens when one parent wants to move?

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Relocation OverseasOne of the most difficult disputes in Family Law can be when parents cannot agree where a child is to live or move to. The stakes are extremely high, particularly when the proposed move is international.

A significant proportion of families in the developed world are able to afford regular travel costs and there is a steady flow of people from other countries settling in New Zealand. New Zealanders moving overseas for work or family reasons also means increased mobility of couples and families, so international  relocation disputes are increasingly common in the Family Court.

Disasters such as the Christchurch earthquake also result in numerous shifts and complex issues which often impact on separated families and become relocation disputes.

Relocation New ZealandIn large cities such as Auckland, even the decision to move to the other side of the city can impact on the children and their care arrangements to the extent that the Court will need to make that decision if the parties cannot agree. The Court may order the return of children to the original area, or specify they are not to reside outside of a certain radius.

Relocation is a Guardianship Issue
Relocation is a guardianship issue which means that it is a decision that both guardians must agree upon together and be consulted about. If you wish to relocate with your children, the first step is for the guardian who wishes to relocate to propose the issue to the other guardian or guardians and try to come to an agreement. A carefully prepared proposal including details about costs, holidays, information sharing and a variety of contact options, together with a formal consent to consider, can often lead to efficient and mutually satisfactory resolutions.

Relocation Disputes
If agreement cannot be reached, the first step is to attend Family Dispute Resolution. The government has recently imposed changes to the Family Court System. It is now a requirement to attend FDR to try to resolve the dispute. (Click here more information on Family Dispute Resolution).The Family Court has jurisdiction to make the decision if one party applies to move either within New Zealand or internationally.

The most common situations are when one parent:

  • wants to return with children to their original “home” and family support,
  • has an excellent job opportunity or important new relationship, or both, in another town or overseas


How the Court Decides
There is no formula to this decision for the Courts as they must determine the overall best interests of the individual child(ren) involved.

Certain factors will commonly be relevant for Judges in relocation cases but  “the task of identifying and weighing up the relevant factors must be done on a case-by-case basis, recognising the infinite variety in family circumstances” [1] which include:

  • The non-moving parent’s capacity to demonstrate continued interest in the children after relocation;
  • The extent and focus of the conflict between the parents, either underlying or resulting from a decision to relocate;
  • The practical consequences of relocation (transport, costs accommodation)
  • The practical consequences of declining relocation (financial and employment consequences for both parents);
  • The distance between the two parents homes currently and post-relocation;
  • The impact of granting (or declining) relocations on the children’s family and social support networks;
  • Cultural and spiritual considerations;
  • The children’s previous living arrangements including the number of previous moves and the suggested new living arrangements
  • The merit and reasonableness of the parent’s wish to relocate;

The overarching principles set out in section 5 of the Care of Children Act 2004 stress that parents and guardians shall have primary responsibility for their child’s care and development and that they should be encouraged to agree to their own arrangements. The child’s care and upbringing should be facilitated by ongoing consultation and co-operation between the parents and guardians.

The child is seen as an individual who must be given opportunities to express views and preferences on any proposed moves and have those views taken into account.

"At the highest level of generality the competition in a relocation case is likely to be between declining the application for relocation because the children’s interests are best served by promoting stability, continuity and the preservation of certain relationships, as against allowing it on the ground that the interests of the children are thereby better served. Put in that way, it is difficult to see how any presumptive weight can properly be given to either side of those competing but necessarily abstract contentions. To do so would risk begging the very question involved in what is necessarily a fact-specific inquiry.” [2]

The "mother principle"
The “mother principle” which exists in some jurisdictions overseas was once the approach in New Zealand. It was thought that a primary caregiving mother’s happiness is so tied up with a child’s well-being it should be the priority factor. That is no longer good law. However, it is still one of the matrix of factors a Judge will consider to determine whether a relocation is in each particular child’s best interests.

Preparing for Court
Careful preparation, planning and consideration is essential to a successful relocation application or defence. Judicial decisions and styles are notoriously variable in this particular area, where there is often no possible “middle ground” or compromise possible.

If the child has already relocated
If a child has been relocated without consent in New Zealand then urgent applications together with applications for warrants to return can be made to the Family Court. Here, you would bypass the FDR process. If they have been taken out of New Zealand then applications can be made for their immediate return under the Hague Convention, which New Zealand is a party to.

The Hague convention provides that children should be returned to their country of origin for a decision there. So those children taken from New Zealand to those countries are able to be forcibly returned. However not all countries are party to the convention and even when they are, the process of return can still be very difficult for both practical and legal reasons.

Preventing Removal from New Zealand
If you are concerned about someone who may be a “flight-risk” with your child a Lawyer can immediately place urgent border alerts through Interpol. The police at the airport will then stop children leaving at the airport. This must be followed by a formal application for an order preventing removal from New Zealand which is then in place until formally removed.

Do you need assistance with a child relocation issue? Are you wanting to move, or prevent your child from moving away?

If you would like to become a client of Smith and Partners and get help with your child relocation issue, please contact Child Custody Lawyer, Ellen Harbidge on 09 837 6890 or email ellen.harbidge@smithpartners.co.nz to set up an appointment to discuss your child custody matter.

We will require a retainer to be paid prior to your first meeting, and we cannot assist with legal aid matters.

Please note that In accordance with our obligations under the Lawyers and Conveyancers Act 2006, we cannot provide legal advice unless you have become a client of Smith and Partners and have received our Terms & Conditions of Engagement and Info for Clients.

Child relocation lawyer

Author: Child Relocation Expert, Ellen Harbidge

You may also be interested in reading:

International Child Relocation Disputes - Which Lawyer Can Help?

 


[1] Para [8] Courtney J K v 8 (2009) 27 FRNZ 417
[2] Kacem v Bashir [20/0] NZSC 112 2 NZLR 1 para (23)

 

 Updated 10-10-14

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