What are the circumstances where a parent can relocate A child?

Are you going through a divorce or considering one? You may be wondering under what circumstances a mother or father is able to relocate their child. Let’s explore your legal rights and responsibilities when it comes to relocation.

Most of us would be familiar with the adage, ‘The only constant in life is change’. And of course, many of us have found this to be true.

Relationships break down. Companies fold. Careers pivot. Opportunities call. Rents rise. Relatives get sick. A new romance blooms. 

There are many reasons why you may want – or need – to relocate. But things can get complicated when you have a child. What happens when you want to move, but you’re  with an ex-partner?

Can a custodial parent move to another city? If so, under what circumstances? And what does Australian family law say about unilateral relocation? 

Let’s explore.

Circumstances where a mother or father is able to relocate with their child

First, it’s important to note there are many different ways to organise parenting arrangements when the parents don’t live together. According to Australian research, the majority of these involve children staying with their primary parent, which is mostly their mother, most nights. 

The person with whom the child lives most of the time is often referred to as the primary caregiver. Or more informally, as the custodial parent.

The primary caregiver will often need to make the smaller, day-to-day decisions about the child. But they don’t have total control over major, long-term life decisions. 

Where a child lives, or whether or not they should relocate, is one of those major and significant decisions. 

So what are the circumstances when you can relocate with a child when you are a co-parent?

You have consent from the co-parent

Even if you are the primary or custodial parent, the Family Law Act of 1975 (Family Law Act) requires you to obtain the consent of the co-parent before relocating with your child. It doesn’t matter whether you are the mother or the father, or the primary or non-primary carer. 

If both parents can reach an agreement on this decision, there’s nothing more you need to do. However, we strongly encourage you to formalise the agreement through a parenting plan or a consent order. This helps to formalise your agreement reached and keep everything clear, consistent, and enforceable. 

You have a relevant court order

If the other parent won’t give their consent to relocating with your child, you can apply for a court order. In Australia, court orders concerning children are called parenting orders.

However, before you can even approach the courts, The Family Law Act requires you to make a genuine effort to reach an agreement with the other parent and attend family dispute resolution, such as mediation or arbitration.

If you do decide to seek a court order, we recommend you seek legal advice first. The court will only grant the order if it believes the relocation is in the best interests of the child, and demonstrating this can be a bit tricky. Having an expert family lawyer on your side can help. 

Alternatively, your co-parent may want to relocate your child, but you may think it’s in the child’s best interests they stay. In this case, you may refuse to give your consent to the move. If your ex decides to seek a court order allowing the move, we also strongly recommend that you have a family lawyer on your side. 

When determining the child’s best interests, the court takes into account the following general considerations:

• The safety of the child and the need to protect the child from harm.
• What arrangements would promote the safety of your child and each person who has care of the child 
• Any views expressed by your child about parenting arrangements 
• The age of the child which is very important in deciding what arrangements will work establishing a regular routine 
• Who will look after the child 
• Any other things such as schooling, health care, sport and religious matters 
• How to ensure your child continues to enjoy their culture 

In addition to the above, for relocation matters, the Court will also consider, for example:  

• What current arrangements are in place for the children and whether those arrangements will significant change because of the relocation
• If the relocation will result in the children’s time being altered and reduced, how that affects the child’s relationship with the other parent 
• What are the practical arrangements required for the children to continue to have a meaningful relationship with the other parent, if that is so the case. 

Keep in mind that going through the Court system, it can be a long and expensive process. This might not be ideal if your move is urgent.

You have sole decision-making responsibility

In some circumstances, you may be a parent with sole decision making responsibility. This means that you have the legal responsibility to make major long-term decisions for your child without the other parent’s input or consent. This might also include the decision about the child’s residence. 

However, it’s not quite as straight forward as you might think. As the parent with sole decision-making responsibility, you are not necessarily legally permitted to relocate without the other parent’s consent. The relocation must also consider what is in the child’s best interests and what care arrangements will or will not be significantly impacted due to the relocation.  

What does Australian family law say about unilateral relocation?

Unilateral relocation is when one parent relocates the child without the other parent’s consent or a Court Order to do so. When you share custody with another parent, you simply cannot relocate with your child unilaterally except with a court order. 

If you do, the court may demand the child return to their original location until the matter can be considered and/or resolved. If a unilateral relocation is in breach of an existing family law court order, there may be serious consequences for the parent responsible, including restraints against you for doing so in the future, a contravention of the Court Order or even a cost penalty.

Of course, there can be exceptions to this in the case of family violence or emergency or where a parent has a reasonable excuse. 

What about international relocation?

Similar to domestic relocation, international relocation is only allowed if both parties have provided authenticated written consent or there is a court order in place. The court may also consider additional factors, for example, language differences, or put more weight on factors, such as the practicalities of maintaining a relationship with the non-custodial parent. 

You should never attempt to relocate with your child to another country without taking the appropriate steps, such as getting consent or a court order, as this will result in Court proceedings in Australia and likely Hague proceedings for the return of the child to its habitual residence pending any further parenting agreement. 

Where can I seek help?

If you want to relocate with your child or prohibit a co-parent from relocating with your child, it’s important to speak with a lawyer. A qualified legal professional will be able to offer advice and support you to navigate the legal process.

If you’re under any threat of family violence or feel at risk, please contact:

• 000 for Police or Ambulance if you’re in immediate danger
• 1800RESPECT (1800 737 732) – available 24/7 or
• Lifeline at 13 11 14

If you want to learn more about your legal rights and responsibilities when it comes to relocating with a child, get in touch with our helpful Australian Family Lawyers. We’re ready to offer support, information, and guidance today.

Call the team at 1300 470 243 or request a call back via the form below.