Relocation disputes – important factors

Relocation is a common guardianship issue, as it is a situation where one parent or guardian wishes to move with their child to another city or town, or overseas, and the other parent or guardian disagrees.

In the case that mediation through the Family Disputes Resolution services does not work, guardians can apply to the Family Court directly to resolve a relocation issue for them.

Like all Court proceedings, the Court is only able to rely on evidence provided to it in the hearing, so it is important to know what factors the Court will find important when deciding a relocation dispute.

It is important to note that the child’s welfare and best interests will always be paramount in any dispute between parents or guardians in the Family Court. However, determining what is best for the child is not always an easy task.

The Care of Children Act 2004 outlines some key principles which the Court must consider when it is determining what is in the best interests and welfare of a child or children. Some of those principles include the protection of the child’s safety, continuity in their care, development and upbringing, and that their relationship with wider whānau should be preserved.

Under these principles, the parent or guardian’s ability to protect the child’s safety in the new location must be considered. In one case, relocation was declined by the Court as the child’s step-father had allegations of assault against him, and it was unclear whether the child’s safety could be protected.

Other factors which must be considered include whether the child’s relationship with the other parent or guardian can be sustained from a distance, or whether appropriate care arrangements can be put in place. In some instances, the parent who is proposing to move away may need to make greater concessions than the fixed location parent in order to balance this out.

The Court will also consider how the move may affect the child’s upbringing, for example by moving them away from their friends and other whānau.

This assessment may include whether the child will be able to make new friends easily or adapt to change if they are relocated. In the past, the Court has declined a relocation because a child had learning disabilities and could not make friends as easily as most children, or deal with change well.

The Court may also consider the relocating guardian’s willingness to keep in contact with the guardian being left behind.

Other factors include cultural and spiritual implications, the physical distance of the relocation, any conflict between the guardians, and even the emotional and mental well-being of the relocating parent.

These are only some of the factors which may be considered by the Court in a relocation dispute. If you need help in a guardianship dispute, 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.

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.