Separation is challenging in numerous ways, especially where children are concerned. If you are looking to relocate with children, or suspect your former partner may be intending to, there are a few things you need to know ahead of time.

Though you and your former partner may have agreed on which parent your child will live with and other and parenting arrangements, it’s always an ongoing process of determining how to raise children, one where both parents are usually equally invested. Challenges can arise where one parent wants to relocate with children.

The relocation could be for several reasons. For example: after a new marriage, a new job, or when one parent wishes to return to their home country and wants a child or children from the former marriage to come with them. Whether you are looking to relocate your child or suspect that your former partner is going to, there are a few things you should know ahead of time.

Planning to relocate with children

If you want to relocate with children, your legal representative (a qualified family lawyer) can assist you by contacting your former partner’s lawyer to inform them of your intention to relocate. You are then providing them notice of your objective. While you are not seeking their permission, they do have the ability to object to the relocation which might require you to file an Application to Relocate.

Your former partner is intending to relocate

If your former partner is the one intending to relocate with children, they must provide you with notice. You should then object to the notice in writing and save a copy of the letter to document your objection. If the relocation has already happened, despite your clearly documented objection, the court may be able to order the return of your child. This is why it is important to both send your objection in writing and save a copy of the letter.

Three categories of parenting arrangements

Different parenting arrangements may imply a different level of formality with respect to making any relocation determinations. The hope is that parents can come to an agreeable arrangement on their own or through mediation and counselling. However, those who cannot agree may turn to the courts for a decision.

Most parenting arrangements fall into one of the following three categories:

  1. The Verbal Agreement: The most informal of arrangements, where parents are able to agree to parenting arrangements despite a lack of formal documentation.
  2. A Parenting Plan: A non-enforceable document usually arising out of counselling or therapy that describes what parents have agreed to regarding parenting arrangements for their children in the event of a separation.
  3. Court Orders: The most formal of parenting arrangements, these are court ordered and are for those parents who are unable to reach an agreement and thus require an enforceable parenting agreement decided by the Court.

The most important thing to remember if you want to relocate with children

Despite what many parents may think or hope, issues regarding, who your child or children lives with / spends time with, childcare, and relocation are not about parental rights at all, but about what’s in the actual “best interests” of a child, notwithstanding what the parent/s may think that best interest is.

When deciding whether a relocation is in the child or children’s best interests, the court will look at how the relocation will affect their ability to have a meaningful relationship with the non-relocating parent. The existing relationships between a child and both parents will also bear upon the decision of the court, with greater weight being allocated when a parent is particularly hands-on with their child.

Generally, the age of the child/children will have an impact on the court’s decision. Usually the younger the child in question, the less likely relocation will be considered appropriate.

Likewise, the Court will consider the impact of the move on the child’s social network which may include peers, school, extracurricular activities, and extended family.

One thing to remember is that distance and location is not heavily reviewed, with even short-range relocations being enough to trigger review by the Court.

If you are either considering relocation of a child after a separation, or your former partner informs you they are pursuing this course, it is essential to seek good professional advice from one of our experienced Sydney family lawyers and work out a strategy to best manage an outcome for all parties involved, most particularly the child.

The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.
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