When a couple is separated and one party wishes to relocate a child to a different location or country a number of factors must be considered. The primary focus is on what is in the best interests of the child.

Guardianship

To understand the relocation process, it is important to first understand what guardianship of a child entails. 

Guardianship involves making decisions in the life of the child. There are certain rights, responsibilities, and duties of a guardian when bringing up a child, and the relocation of the child must be undertaken with these responsibilities in mind. 

Most of the time the biological parents of a child will be appointed as guardians automatically or by being named on the child’s birth certificate.

Guardians make the decisions regarding a child’s life, and all guardians must agree to important decisions affecting the child, such as relocation, before such decisions are finalised.

The Process

The process for the relocation of a child can be simplified if your ex-partner agrees to the relocation. No legal action will be needed in this case. 

If your ex-partner does not agree to the relocation the next step is usually to attend Family Dispute Resolution, so that you and your ex-partner can attempt to reach a resolution without the need for Court proceedings. 

Family Dispute Resolution takes place in front of an independent mediator who will help facilitate the discussion and assist in reaching an agreement between the parties.

If this is unsuccessful, you will likely need to file an application for a Dispute between Guardians. The Court will then assess the relocation request and decide whether to grant your application.

Court Considerations

The Court will look at several factors to determine what is in the best interests of the child, and make its decision based on this. These factors include:

• The child’s identity, taking into account the religion or culture of the child;
• The child’s safety;
• The child’s ability to maintain a relationship with their other parent, as well as other members of their wider whānau;
• The continuity in the upbringing of the child;
• The child’s ability to adapt to the change;
• The views of the child.

It is less likely that a Court will grant an application if the relationship of the child with the other parent will be significantly disrupted by the relocation as, in most instances, the child’s relationship with their other parent will weigh heavily in the decision of a relocation application.

If the Court deems that it is in the child’s best interests for the relocation to be permitted it will accept the application, and make (or vary) the parenting order accordingly.

In one particular case the Family Court was presented with a situation where the father of three children applied to relocate the children to live with him in the US. The mother opposed this application as she wanted to maintain her day-to-day care of the children.

The Court decided that the parents both cared for the children deeply and had an equally close relationship with them. The deciding factor in this case was the views of the children. The Court decided that the children were highly competent and that their opinions should therefore be given a significant amount of weight.

Because the two younger children were heavily in favour of the relocation, the Court decided that they would be relocated to the US to live with their father. The children were 10 and 12 at the time.

The Court will handle each case based on its own unique circumstances. This case is an example of how the Court may put more weight on some factors, depending on the circumstances surrounding those factors.

If there is uncertainty about the relocation of a child, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins and Matthew Binnie

 

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.