Can I relocate with my child after a separation or divorce?
Whether there is a separation or a divorce, both parents are no longer together. Where both parents have ceased to cohabit, there is usually an Agreement or an Order in place that divides parenting time, contact and decision-making responsibilities with the parents or guardian of the child.
According to the Divorce Act, relocation occurs where either parent who has parenting time or decision-making responsibility of the child plans to change their address and such change will affect the child’s relationship, parenting time, decision-making responsibility or Contact Order of the child with the other parent. Where either parent decides to relocate with the child, they can mutually agree to adjust the existing arrangement in place or bring an application in court to vary the exiting Parenting Order to be in consonance with their new situation.
Is there a requirement to notify the other parent of a planned relocation with the child?
Where the couple was married, the Divorce Act provides in section 16.9 that the relocating parent is required to notify the other parent at least 60 days before the planned relocation date. This can be achieved by sending a Notice of Relocation form to the other parent. The relocating parent is also required to provide the expected date of relocation, the contact information of the person or the child and a revised schedule of the proposed parenting time and decision-making responsibility of both parents that will suit the new circumstance.
However, these rules are not cast in stone as the Courts have the discretion to modify them to suit the circumstance of the case, especially in situations of family violence. Where this is the case, a parent may make this application exparte, that is without notifying the other parent.
The Divorce Act does not apply to unmarried couples. Where the couple were never married, similar rules on mobility application applies in reliance on case laws such as Gordon v Goertz and Spencer v Spencer.
When can I relocate?
The parent is permitted to relocate on the planned date if the other parent does not object to the relocation, or within 30 days does not file an objection to relocation form, a court application objecting to the relocation or there is no existing Court Order acting as a bar to the relocation.
What can I do if the other parent does not want me to relocate with my child or files an application to object to the relocation?
The option available is to bring a mobility application. The essence of this application is to allow the relocating parent to move with the child despite the objection filed by the other parent. In deciding whether to grant this application, the factors courts will look at as per Gordon v Goertz.
If the relocation will amount to a material change in circumstance affecting the child, this means that there is a change in the circumstance of the child or the ability to meet the child’s needs that was neither foreseeable nor reasonably foreseeable at the time of the initial parenting order was made, if yes, then the court will determine the best interest of the child in relation to the material change.
What amounts to the best interest of the child will depend on the situation. The issues that will be considered includes the reason for moving, the relationship between the child and both parents, the views of the child, disruption of the child’s family, school, and community. Where the couple were married, the best interest of the child will be taken into consideration by examining some additional factors including – the intention by the relocating parent to comply (and previous compliance requirement and obligations) with the notice requirement and agreement or order in place in relation to parenting, location of the new place, travel expenses. The relocating parent has the burden to prove that the relocation is in the best interest of the child.
If in the opinion of the court, it is still in the interest of the child to relocate with the custodial parent, an order may be granted in the custodial parent’s favour.
This blog post is for information purposes only and does not constitute legal advice. Should you require legal advice in relation to separation, divorce, parenting orders, mobility applications or general family law matters, do not hesitate to contact us.
Ada holds a master’s degree in law at Queen Mary University of London and a bachelor’s degree in law from the University of Lagos.
She is passionate about the law and dedicated to providing exceptional solutions to clients’ legal issues. Ada practices family law, civil litigation, immigration law, and real estate law.