The issue of mobility rights involves the question of a parent’s right to be able to move from his or her current jurisdiction with the children to another jurisdiction. Most often times these cases arise when a parent who has the primary residence and custody of the child, wants to move to a different city. Many parents in this situation wonder, “if I have custody of my child, what happens if I move?”.
There are many reasons why parents consider leaving their current jurisdiction: a new job, a new partner, or the desire to move closer to where their family and support system are. Whatever the motivation may be, the Court will focus on the best interests of the children in considering whether or not to permit the relocation. The Court will consider various factors in making the determination of what is in the children’s “best interests”, including the relevant circumstances of the child, the existing residency and custody arrangement, the desirability of maximizing contact between the children and both parents, the views of the child (if they are of sufficient age), the custodial parent’s reason for moving, and the disruption the move may have on the children.
In most cases, under the Family Law Act, the parent wishing to relocate is required to give 60 days’ notice to anyone else who is a guardian or has contact with the child. The other guardian who may wish to oppose the relocation will have 30 days from delivery of that notice to file an objection to the move taking place.
Family Law Act
Generally, the test to consider for relocation is set out in the Family Law Act and includes considerations such as:
1) Whether the proposed relocation is made in good faith;
2) Whether the proposed relocation is likely to enhance the general quality of life of the child and, if applicable, the relocating guardian;
3) If the relocating guardian has proposed reasonable and workable arrangements to preserve the relationship between the child and the child’s other guardians or persons who are entitled to have contact with the child.
At the time of separation, most parents will usually continue to reside in the same city, often within the same community. When they negotiate the terms of their Separation Agreement, they most often address the issue of mobility, by setting out a requirement that either parent is to give the other parent a certain number of days’ notice (for example, 60 or 90 days’ notice), in the event of a proposed change to the children’s permanent residence. This notification requirement is included within the Agreement in order to enable the parents to try to negotiate a new parenting arrangement, in the face of the proposed move.
It also gives the non-primary residential parent sufficient time to bring a court application to attempt to prevent the move, if a new parenting arrangement cannot be agreed upon. I have seen some Separation Agreements where parents have agreed that there will be no movement without the consent of both parties. Such restrictive clauses, however, are unenforceable. The courts will not bind a parent to such a clause, in the event that it is determined, following the signing of the Separation Agreement, that it is no longer the children’s best interests to remain in their current location.
Given that the Court has wide discretion in determining what is in the children’s best interests, mobility cases are often unpredictable and there is no guarantee of success. The parent proposing the relocation should ensure that they have a plan to maintain as much contact as possible with the parent remaining in the current jurisdiction, this includes telephone, Facetime and Skype access, greater periods of time over the holidays and what access will look like if the access parent comes to the new jurisdiction. It is important to have a plan before the court that addresses the proposed access if the children are permitted to move that provides as much detail as possible for consideration such as who will be responsible for the transport of the children.
It is the difficult task of the court to weigh these factors along with a consideration of what is in the best interests of the child, in order to arrive at a decision that will result in the least disruption to the child and their relationship with each parent. Parental mobility rights, which specifically address a parent’s right to relocate or move with a child, can present numerous complexities best addressed by an experienced lawyer. If you are looking to relocate or are an access parent and want to dispute a proposed move by the custodial parent, contact me today at 647-428-3919.