While most divorced couples live in the same city or within a reasonable traveling distance from one another, the event of moving overseas with children is an issue that occurs more frequently than imagined. When divorced parents are living in close proximity to one another, shared custody is much easier to arrange and implement than when one parent is contemplating a move out of Australia. However, it is possible for parents and/or the Court to find a move overseas reasonable and doable.
The most expedient way to implement a decision to allow your children to move overseas with one parent, is if both parents can come to an understanding and agreement that the move overseas is permissible. For this to happen the family needs to consider how the non-primary parent will have access to the children to maintain a strong and loving relationship with them. If the parents can create a schedule for video calling and a plan for regular visitation that promotes a strong relationship for the parent who will not be moving overseas, the arrangement can work. Regardless, it is important to remember that whatever plan two consenting parents agree to, it is also necessary for the new arrangement to be included in the parenting agreement and approved by the Court. Once the new living circumstances are approved of, the family can move forward with ease and cooperation.
Unfortunately, such agreements cannot always be amicably reached. This can happen when the move overseas is of such a significant distance that issues arise regarding concerns such as time differences that cause the ability to stay in touch with the children, both visually and verbally, to be extremely difficult, or the cost of travel for the children to see the non-primary parent is prohibitively time consuming and costly.
Since a parent with shared custody is not allowed to simply pick up and move the children without the consent of the other parent, if a family cannot come to an agreement regarding the appropriateness of an overseas move, they must turn to the Court for assistance.
When this happens, the Court will look at the following factors and weigh them in the best interest of the children involved.
- Consideration of the children’s point of view
- The effect the distance would have on the children’s relationship with the non-moving parent
- The children’s feelings and reaction to being separated from the other parent
- The practicality of ongoing contact and regular visitation with the parent who is not relocating
- The ability for each parent to still provide for the children’s emotional and psychological needs
- The level of maturity of each child
- The age of the children
- The safety of the children
- Any history of family violence or abuse by either parent
- The decision the Court can make that is least likely to insight more litigation
Since each of these factors will be considered in the particular light of each family, it is almost impossible to predict how a Court will find in any single situation. As such, neither party can be sure as to how a Court will decide the issue of an overseas relocation. Therefore, it is best if under these circumstances the parents can come to an agreement of their own accord.
Regardless of whether a family has made their own arrangements, or they need the assistance of the Court regarding an overseas move, it is imperative for the parent who is planning on relocating not to take the children and leave the country prior to a new visitation and/or custody plan being fully resolved and approved by the Court. Neither parent has the right to make any significant changes to their residence sans the permission of the other parent. And, if a parent does take this action on their own, the legal consequences can be quite significant. Therefore, it is never a good idea for a parent who shares custody, to simply decide to unilaterally relocate the couple’s children.
While initially it can be a difficult adjustment for children to move overseas and be separated from one parent on a regular basis, it is possible for parents to find a way to make the relocation a success. With cooperation and open communication, a family can make this change and move forward successfully.
If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.