CHILD RELOCATION: AN INTRACTABLE INTERNATIONAL FAMILY LAW PROBLEM
| Published date | 01 April 2007 |
| Date | 01 April 2007 |
| DOI | http://doi.org/10.1111/j.1744-1617.2007.00140.x |
| Author | Justice Tim Carmody |
FAMILY COURT REVIEW, Vol. 45 No. 2, April 2007 214–246
© 2007 Association of Family and Conciliation Courts
Blackwell Publishing IncMalden, USAFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2007April 2007452Original Article
Carmody/CHILD RELOCATION
FAMILY COURT REVIEW
CHILD RELOCATION: AN INTRACTABLE INTERNATIONAL
FAMILY LAW PROBLEM
The Hon. Justice Tim Carmody*
This article examines the current state of the law on child relocation across the major common law-based
jurisdictions, with particular emphasis on the contrasting approaches to the problem in Australia and the United
Kingdom. It then goes on to suggest changes aimed at achieving more principled and predictable outcomes.
Keywords:
family law
;
postseparation child relocation
;
jurisdictional approaches
;
Australia
;
Payne v. Payne
;
proposed changes
INTRODUCTION
Child relocation in a family law context involves a plan by a primary postseparation or
divorced parent to alter the usual place of residence of the child(ren) so as to make it
significantly harder for substantial amounts of time to be spent with the nonresident parent.
It is the impact the proposed move is likely to have on direct contact (access or visitation),
rather than its distance or duration, that counts.
The issue is one of the most vexing in family litigation. It pits competing interests of
roughly equal value against one another and calls for an unpalatable choice to be made—
consistently with the contact rights of the child(ren) concerned—between the mobility
rights of the intending mover on the one hand and the parenting rights of the opposing party
on the other.
The deceptively simple question is whether the child(ren) would be better off remaining
with the parent in whose custody (residence) he, she, or they are accustomed to in the
proposed new location or leaving things as they are now? Or, to put it another way, which
should prevail—the custodial or primary parent’s right to decide where the child is to live
or the emotional benefit to each child of spending substantial and significant time with
both
parents?
There is, of course, no easy or universal answer. No matter how legally right it is, the
end result will be seen as exquisitely unfair by at least one of the parties and maybe by
the child(ren). A wrong decision, either way, can have serious and long-lasting con-
sequences for them all.
This article takes an initial look at child relocation laws in the major common law–based
jurisdictions and then more closely and carefully examines the contrasting UK and
Australian positions.
THE INTERNATIONAL LANDSCAPE
Parents in Australia and their counterparts in the United States, United Kingdom,
Canada, and New Zealand, are actively encouraged to reach agreement about and share
Carmody/CHILD RELOCATION 215
responsibility for decisions affecting the care, welfare, and development of their children.
This includes with whom and where they are to live and how much time they will spend
with the other parent. When, regrettably, agreement cannot be reached, the residence or
relocation issue has to be decided by the courts according to the so-called paramountcy
principle, with the best interests or welfare of the child as the paramount (but not the
sole) consideration. This is an unruly nonlegal concept dating back to a 19th-century U.S.
decision.
1
It is incapable of clear definition or uniform application because every case
depends so much on its own merits. While the aim is commendable enough—to achieve
individual justice for the child(ren) as distinct from distributive justice for the parents—the
legal pathway is badly paved and poorly lit.
Best interests are values, not facts. They are not susceptible to scientific demonstration
or conclusive proof. The same body of evidence may produce opposite but nevertheless
reasonable conclusions from different judges. There is not always only one right answer.
Sometimes, the least worst situation may be the best available. Most cases are finely
balanced with the only option being a choice between two or more imperfect alternatives.
Predictions, perceptions, assumptions, and even intuition and guesswork can all play a part
in search of the best interests solution.
2
Moreover, the highly discretionary and subjective nature of the paramountcy principle
makes even the most anomalous relocation judgment almost unexaminable, at least where
the outcome is not plainly absurd or manifestly unjust and the indeterminacy of the best interests
test means that international uniformity is almost impossible to attain. Consequently,
although the same or substantially similar legal standard is used to decide a relocation
issue, the approach and the outcome can be surprisingly (even alarmingly) different.
The UK courts, for instance, are staunchly pro-relocation, and while there is no legal
presumption to this effect, a reasonable move-away proposed by a primary parent will
usually only be prevented where is it is clearly shown to be contrary to the child’s
welfare.
3
Canada, by contrast, tends to take a more neutral, child-focused, and multifactored
approach.
4
Presumptions and shifting burdens of proof are rejected as being inconsistent
with the purpose and function of the paramountcy principle.
Australia and New Zealand take a similar stance,
5
but recent changes in legislative
policy are likely to result in a more anti-relocation attitude emerging in both countries.
6
Relocation decisions in the United States vary from state to state in line with statutory
principles or judicial precedent. Indiana, for example, favors freedom of movement and will
not change custody arrangements in order to block an interstate move by a resident parent,
7
whereas Louisiana decidedly discourages mobility by assigning the burden of proof on
the relocating parent to demonstrate that the move is in the best interests of the child.
8
Elsewhere, positive or negative legal presumptions are used to achieve policy preferences
for or against relocation. In the state of Washington, for example, there is a rebuttable
presumption for,
9
and in Missouri against,
10
relocation. New York has no declared bias or
preference either way. It grapples with the problem in much the same way as Australia,
Canada, and New Zealand do.
11
The law in California is in a state of flux. In
In re Marriage of Burgess
,
12
the Supreme
Court recognized the presumptive right of a custodial or “primary psychological” parent
to relocate unless the nonprimary parent could show that his or her continuing active
involvement was vital to the children’s upbringing. This policy was later entrenched in
legislation.
13
However, more recently, in the landmark case of
In re Marriage of La Musga
,
14
the court considerably watered down “. . . the
Burgess
formula by reducing the extent
216 FAMILY COURT REVIEW
of the burden of proof on non-custodial parents who oppose relocation and by authorizing
a [no rules] case-by-case custodial analysis in each and every relocation case.”
15
Connecticut places a reverse onus on the opposing party to show likely harm once the
custodial parent establishes a good faith motive. Reflecting the importance of the family
unit as a primary contributor to children’s physical and emotional well-being, the Supreme
Court’s decision in
Ireland v Ireland
16
identified the following criteria:
(i) each parent’s reasons for seeking or opposing the move;
(ii) the quality of the relationships between the child and custodial and noncustodial
parents;
(iii) the impact of the move on the child’s future contact with the custodial parent;
(iv) the degree to which the custodial parent’s and the child’s life may be enhanced
economically, emotionally, and educationally by the move; and
(v) the feasibility of preserving the relationship between the noncustodial parent and
the child through suitable visitation arrangements.
This plurality of factors has been described as “consistently applied and somewhat
predictable.”
17
It is also compatible with the acknowledged need to give the widest protec-
tion possible to the families as the fundamental group unit of society, the need to protect
the rights of children, and promote their overall welfare.
18
There are too many other states to discuss in detail. As a general rule, however,
relocation disputes are dealt with in a similar way to many of those already considered
and generally defer to custodial relocating. The relationship between the child and its
custodial parent is seen as central to the child’s well-being and, as many have noted, the
custodial parent’s decision about where the child shall live is a child-rearing matter that
should ordinarily be respected.
19
Restraints or custody transfers from one parent to the other
are usually imposed only if the visiting parent establishes, first, that the child’s relocation
with the custodial parent will prejudice the child’s welfare and, further, that altering the
child’s primary custodian is likely to be less harmful for the child than the relocation.
20
Divergences are also found in the civil law jurisdictions of Europe. Separated or
divorced primary care providers wishing to relocate with their children within or outside
France must apply for, and are usually given, permission to leave. In Germany, the outcome
depends on whether the proposed change has a net benefit for the child. There is no general
rule or presumption in favor of or against a relocating parent.
In Spain, the child’s interests are usually separately represented and their wishes are
highly influential after the age of 12. Both parents, whether married or not, have joint
parental authority and responsibility over and for their children. Courts act on best interests
considerations and are inclined to sanction reasonable moves by custodial mothers provided
there is generous contact with the father.
21
THE UK AND AUSTRALIAN POSITION COMPARED
THE ENGLISH CASES
Where a residence order is in force, a parent who wishes to remove their child permanently
from the United Kingdom requires the leave of the court unless the other parent consents
in writing.
22
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