Children’s International Relocation

You may wish to move abroad and will need the consent of your child’s other parent or the permission of the court to relocate your child.  You may wish to prevent your child from being taken abroad.

Relocation of children when parents separate is among the most complex and costly family law matters.  Parents are always encouraged to resolve the relocation issue by amicable agreements.  Unfortunately, many parents cannot reach a relocation agreement.  A study conducted in Australia found that relocation disputes are characterized by a low settlement rate compared to other family law disputes.

The thorny disputes of international family relocation are often left to the discretions of a court or multiple courts concerning all parties involved.  How would a court decide whether a child may be relocated with a parent to another country?  What is the law applicable to a child’s international relocation case?  If a relocation is allowed, how a left-behind parent’s relationship with the child be maintained?

Permission to Relocate with a Child

A parent wishing to relocate internationally with his or her child may need the consent of the other parent or the permission of a court.

Usually, a parent holding joint custody or joint parental responsibilities may not permanently leave the country with his or her child without the consent of the other parent.

A parent with sole custody or sole parental responsibilities generally have the right to decide freely on international relocation.  However, the other parent might still have the possibility to apply for an order preventing this move or even a change of custody in order to prevent the move.  The right of one parent solely to decide relocate to a foreign country with his or her child may also be restricted by “ne exeat” provisions, which are codified in many Central and South American countries (e.g. Chile, Ecuador, Colombia).  Under “ne exeat” provisions, a parent may decide a child’s residence freely within a country but may not leave the country without the other parent’s written consent or a court order.

Notice to a Child’s Relocation

Some states or countries require the relocating parent to give notice of the intention to move to the other parent.

In the United States, the states that require notice of a proposed relocation are: Alabama, Arizona, California, Colorado, Georgia, Indiana, Louisiana, Maine, Maryland, Missouri, Montana, New Hampshire, New Mexico, Oregon, South Dakota, Tennessee, Utah, Virginia, Washington, West Virginia, and Wisconsin. The time for giving notice ranges from 30 to 90 days prior to the proposed move. Issues of safety and domestic violence may provide a basis for courts to waive the requirement of notice.

How are children’s international relocation cases decided?

Children’s international relocation is governed by complex laws as well as conflicting social-psychological-cultural ideologies.

The general consensus is that the paramount consideration in a relocation case is the best interest of the child.  There is, however, no commonly accepted definition of the concept of a “child’s best interest,” be it on an international level or even national level.

In spite of the differences among the countries, many jurisdictions have adopted guidelines using following factors to assess a child’s international relocation: (1) each parent’s reason for seeking or opposing the relocation; (2) the relationship between the children and each parent; (3) the impact of the relocation on the quality of the children’s future contact with the non-custodial parent; (4) the economic, emotional, and educational enhancements of the move; and (5) the feasibility of preserving the children’s relationship with the non-custodial parent through visitation arrangements.”

How the court weighs these factors directly affect the outcome of a relocation case.  In some jurisdictions (e.g. New York, Pennsylvania) the balance between factors is left to the full discretion of the judge.  In some jurisdictions, the legislatures or case law require some factors must be given priority.  For example, Australian law provides that the primary considerations are (a) the benefit to the child of having a meaningful relationship with both parents, and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  In England and Wales, as well as in South Carolina, a court must first determine whether the primary caregiver’s application is genuine or in good faith (and not motivated by a desire to exclude the other parent from the child’s life).

The parents’ rights and interests are often not the court’s primary concern. However, this is not always the case. For example, in South Africa, Germany, and some states of the United States (e.g. New Jersey, New York, Washington), courts have expressed a shared focus on the child’s and the parents’ interests, and took the parents’ rights and interests into account, finding that the child’s best interests are interwoven with the primary caregiver’s interests and the relocating parent’s freedom of movement.

Visitation, Access and Contact Issues

Enforcement of visitation, access or contact agreements is one of the most problematic dimensions of relocation disputes.

Considering the fact that relocation disputes often involve highly conflictual inter-parental relationships, the need to enforce contact agreements arises frequently.  The remaining parents may face great difficulties and expenses enforce a contact order in a foreign jurisdiction.

Contact and visitation may also fail for practical reasons, such as the logistical difficulties of young children travelling internationally, and the significant travel expenses that many parents can simply not afford.  Thus, as satisfactory as a solution may appear at the time of relocation, contact arrangements can simply be unworkable in the long term.

Gender Issues

In the past decades, many countries have moved away from awarding parental responsibilities to one parent only (mostly the mother) after the dissolution of a marriage or relationship.  This growing trend towards shared care leads to a more restrictive approach to relocation and gives the non-relocating parent a strong argument to oppose the relocating parent’s proposed move.

However, the fact remains that mothers in general have been, and still are, the majority of the primary caregivers.  The restrictive approach to relocation, therefore, appears inevitably discriminatory as it disproportionately limits mothers’ freedom to move away and their ability to ensure their and their’ children’s socioeconomic well-being after a relationship breakdown.

Financial Issues

Legal costs have been identified as a heavy burden on parents in relocation cases. For example, one study in Australia found that the median legal cost of a relocation case was 42,000 Australian dollars.  Some parents go into severe debt to meet the legal expenses.  This financial deterioration is detrimental to both parents and their children , especially when considering that the children’s welfare depends substantially on the parents’ resources.

Financing the trips for visits can be burdensome to both parents, which may well be the result of the crushing cost of litigating a relocation case.  In most jurisdictions, either the noncustodial parent’s support obligation would be reduced due to the extraordinary visitation, or the relocating parent would be required to pay for the visitation cost.  Regardless who is required to bear the visitation cost, the cost is effectively passed on to the children.

How I can help

Like Humpty Dumpty, a family, once broken by divorce, cannot be put back together in precisely the same way.  The relationship between the parents and the children is necessarily different after a divorce.  The decisions on whether to relocate and how the post-relocation visitation arrangements should be made based on the economic, practical and emotional realities of a proposed relocation.

It is crucial to obtains advice from a specialist that is knowledgeable and experienced in children’s international relocation cases.  It is not sufficient to seek advice from a general family lawyer, who may not be familiar with this fast evolving area of law, where a wrong step can have far reaching consequences.

I can advise you in following issues:

• Assess the economic and legal consequences of a proposed relocation.
• Make sensible arrangements either to make it possible for the children to stay or to ensure the children maintain meaning, close contact with the noncustodial parent after the relocation.
• Seek a court order to allow relocation with children.
• Seek a court order to prevent relocation with children.
• Obtain a mirror order as a preventive measure to enforce contact orders.
• Enforce foreign visitation, contact and access orders.