If you want to change your residence and can do so without affecting any existing court order or parenting agreement, moving is not a problem. If you or the other parent want to move a child to a place that will make it difficult for both parents to spend regular time with the child, the proposed relocation may raise concerns under the Family Law Act.
Under most circumstances, a court cannot prevent you from moving. You do not need the other parent’s permission to change your residence.
If your children live with you, however, you may need a permission of the other parent or of a Family Law Court if you want to take the children with you when you move. Both parents have a right to spend time with their children. A planned move that would deprive the other parent of that right might persuade the court to order that the children will live with the other parent instead of moving with you.
Your reason for moving is one factor that will influence the court’s decision. If your work requires you to relocate or you found a better job elsewhere, the court will probably view your desire to move the children as legitimate. Other legitimate reasons for moving may include:
If your motivation for moving is to deprive the other parent of access to your children, the court will be less inclined to allow you to take the children.
Best interests of the children
Your reason for moving is only one factor the court will consider. When the court decides whether to allow you to move the children, it must be guided by the best interests of the children.
If the children are young and are bonded with you as the primary caregiver, the court might be persuaded that allowing you to take the children would be in their best interest.
If the children are older, however, the court might decide that uprooting them would not be in their best interest. If the children are established in school, have friends in the community, and get along well with the other parent, the court might decide that ordering the children to live with the other parent would be better for them than allowing you to take them with you.
It is best to discuss your decision with the other parent and to seek an agreement concerning the children’s residence. For example, you might agree that the children will be with you for part of the year and with the other parent for the rest of the year.
If you cannot agree, you can ask a Family Law Court to make a parenting order that decides the issue. If a parenting order is already in place, you can ask the court to vary the order so that you can take the children when you move.
If you discover that your spouse moved and took the children, you may need to ask a Family Law Court for an appropriate order. If no parenting order is in place, you may need to apply for one that gives you a definite period of time with the children. If a parenting order is in place and the other parent moved the children in violation of the order, you should apply to the Family Law Court for a contravention order.