Moving Interstate with the Kids after Divorce
Who gets custody of the children is often the most gut-wrenching thing about divorce. The family splitting up and figuring out where the kids will live is difficult for all parties involved. “Can I move out of state with my child?” is a common question parents ask.
Although family law is in favour of separated parents staying close after divorce in order to share parenting, the Family Law Act 1975 requires the court to regard the best interests of the child as the most important consideration when granting custody or parenting orders. Although it’s not always easy to do, parents should always use this principle when making decisions or plans that involve their children. What is best for the child is always considered a priority and neither parent has an automatic ‘right’ to make a decision.
If you want to move what should you do?
The first option should always be to talk to and reach agreement with your ex-spouse about your desire or need to relocate. Moving with the children to another town, state or country is known in family law as relocation.
You may be able to reach a compromise, for example, that the children have longer periods of time in school holidays with your ex-spouse and/or longer visits during the year. There’s a possibility your ex-spouse may be able to move too.
If you are able to reach agreement, put this into a written parenting plan.
Existing court orders
If there are existing court orders in place and you take the children interstate, you will be in breach of those orders. This can lead to penalties from the court and you will likely be ordered to return with your children.
If there are no orders and you leave without permission from your ex-spouse, you are likely to be ordered by the court to return with the children.
It is inadvisable to move interstate without agreement or a specific relocation order because to do so will put you at a disadvantage in the eyes of the court, not to mention cost you a lot of money and be disruptive to the child involved.
Can’t agree about relocation?
You can apply to a court for a relocation order to allow you to move if you and your ex-spouse can’t reach an agreement. It will come down to your particular circumstances, but bear in mind, if moving is going to limit the time the children live with or spend with a parent or another significant person in their lives, a court may not give permission.
What will the court consider in the decision?
Whether or not the court grants the relocation order will depend on a number of circumstances, with particular emphasis on what is in the child’s best interests. In considering what is in the best interests of the child, the court will consider, amongst other things, what the relationship between the child and the other, non-custodial parent is like and how to go about keeping that relationship active and meaningful.
The court will also take into account what the support structures are like for both the child and yourself, being the custodial parent.If there is more or better support for the child from family or friends interstate, this could work in your favour. For example, you may have a strong case for relocation if you are originally from another state and you want to move back there and live with your parents, who, if they are retired, could be able to look after the child while you work.
The support the court looks at includes emotional and financial support. Another consideration is what educational, sporting and cultural opportunities would be available for the child and whether they are better in the new location in comparison to the child’s current location.
How do I stop my ex-spouse from moving with my children?
If you are concerned that the other parent may move away within Australia with your children you can ask the Family Court for an injunction to stop them going. An injunction is a court order requiring a person to do or cease doing a specific action.
If the other parent ignores the injunction you can then apply for a recovery order in the Family Court to have your children returned to you.A recovery order is defined in section 67Q of the Family Law Act 1975. It is an order of the court that requires a child be returned to a parent, a person who has a parenting order, or possibly even a person who has parental responsibility for the child (guardian).
A recovery order can authorise a person (such as police officer) to find and recover the child, and deliver them back to you, and can also stop the person from taking possession of the child again in the future.
If you are considering moving interstate with your children, it’s wise to consult a family lawyer before making a decision.