Presumptions, Burdens, and Best Interests in Relocation Law

• Date: 01 January 2015
• DOI: http://doi.org/10.1111/fcre.12129
• Published date: 01 January 2015
• Author: Rollie Thompson

PRESUMPTIONS, BURDENS, AND BEST INTERESTS

IN RELOCATION LAW

Rollie Thompson

The pure “best interests” approach to relocation law is a failure. It is unpredictable and expensive, increasing conflict and

discouraging settlement. The “fundamental questions” proposed byParkinson and Cashmore in their ar ticle will not reform the

law.Real reform will require the use of presumptions or burdens to guide best interests. “Presumptions” are not “rules,” but only

starting points. No simple presumption “for” or “against” all relocations can be justified, but there are large categories of cases

that do warrant presumptions: interim moves, unilateral relocations, shared care, and predominant primary caregivers.The first

three involve presumptions against relocation, while the last—the largest category—warrants a presumption that relocation is

in the best interests of the child, unless the contrary is proved.There will remain a small minority of in-between cases where

none of these presumptions will operate, recognizing the limits of our general knowledge. It is time to move the relocation

reform debate beyond pure “best interests,” to the nextstage, to a serious discussion of which cases warrant presumptions, and

of what strength.

Key Points for the Family Court Community:

• Pure best interests approach to relocation law is a failure

• Presumptions or burdens needed to reform the law, but not just “for” or “against”

• Presumptions are identified for four categories of relocation cases: interim moves, unilateral relocations, shared care,

and predominant primary caregivers

Keywords: Best Interests;Custody Reform;Guidelines;Mobility;Parental Relocation;Presumptions

The pure, unguided “best interests” approach to relocation law is a failure—a failure quite well

documented by the recent Australian and New Zealand research and one experienced by parents

around the globe. Much as we might try to ignore that reality, as do Patrick Parkinson and Judy

Cashmore in their article, we can’t. With our current approach, relocation law has been unpredictable

and expensive, increasing conflict and discouraging settlement, leaving parents exhausted and unable

to plan their lives.

Having diagnosed the illnesses so well in their own research, Parkinson and Cashmore simply

propose more of the same as their treatment, not disguised by calling it an “evidence-informed

approach” or “guided decision-making.”1Asking their series of “fundamental questions” will not alter

the “best interests” analysis, nor will telling courts to “focus resolutely on children’s interests.”Their

“three fundamental questions” are asked in every relocation case already. In most jurisdictions,

appellate courts have not been prepared to offer “guidance” in interpreting “best interests,” which is

what Parkinson and Cashmore recommend. Despite the title of their article, they reject any real

“reform” to relocation law: no presumptions, no special relocation provisions, no use of prior patterns

of decision.

Is this the inevitable conclusion from the “evidence?” I don’t think so. There are a number of real

reforms to relocation law that are possible. My views are inevitably shaped by my practical and

academic experience with relocation in the Canadian context,2and by having read hundreds of

Canadian relocation decisions,3both before and after our Supreme Court’s 1996 decision in Gordon

v. Goertz, whichrejected all presumptions and opted for a pure “best interests” test in relocation cases,

with a list of seven or eight “best interest” factors.4In this respect, Canadian law is similar to that in

Australia, New Zealand, many American states, Israel and other countries. By “pure best interests,”

Correspondence: rollie.thompson@dal.ca

FAMILY COURT REVIEW, Vol. 53 No. 1, January 2015 40–55

© 2015 Association of Familyand Conciliation Cour ts

I mean case-by-case decision making, whether with or without a list of nonexhaustive factors. In

conversations about parenting, child custody and relocation, it is important to define our terms, given

the “language” problems that bedevil us.

Here is a short list of nine proposed reforms, which I will use to structure my comments upon

Parkinson and Cashmore:

(1) The law should require notice of all parental moves and proper planning for any relocation.

(2) All options should be considered before a relocation takes place.

(3) “Presumptions” are not “rules,” but only starting points to structure the analysis of “best

interests.” Presumptions can be stronger or weaker.

(4) A simple “for” or “against” presumption for all relocations is not supported by current

research or policy.

(5) There are some categories of cases where presumptions can be devised to reduce the scope of

uncertainty and to give some guidance in relocation cases. Helpful presumptions can be

devised for cases of interim moves, unilateral relocations, shared care and predominant

primary caregivers.

(6) Where the relocating parent seeks to move in the interim, pending a full hearing, there should

be a presumption against relocation, with some scope for rebuttal.

(7) Where the relocating parent has moved or has attempted to move, unilaterally or surrepti-

tiously or without notice, there should be a presumption that the relocation is not in the best

interests of the child, unless the contrary is proved.

(8) Where the parents substantially share the care of a child, there should be a presumption that

the relocation is not in the best interests of the child, unless the contrary is proved.

(9) Where the relocating parent is the predominant primary caregiver, there should be a pre-

sumption that the relocation is in the best interests of the child, unless the contrary is proved.

As I work through these nine points, you will see that there are a number of issues where I

am in agreement with Parkinson and Cashmore, despite my disagreement with them on their central

thesis.

In my opinion, to fall back upon a pure “best interests” approach in relocation cases is too easy,too

conservative, mostly a way of maintaining consensus both nationally and internationally in family law

circles. “Best interests” means individualized discretion, case-by-case decision making by trial

judges. It is a test “more useful as legal aspiration than as legal analysis,” to quote JusticeAbella in

MacGyver v. Richards, a Canadian relocation case.5Nor do long, nonexhaustive lists of unweighted

relocation “factors” assist in giving shape to “best interests,” lists like those in the Washington

Declaration on International Family Relocation6or in the AAML Proposed Model Relocation Act.7

And, in my view, asking a few general, open-ended questions will not constrain the “best interests”

analysis either, as proposed by Parkinson and Cashmore.

We have long recognized the inherent indeterminacy of the “best interests” test in determining

custody and parenting issues, and the systemic costs that ensue.8Where most cases settle, where

parents live in the same community,where only strange or high-conflict cases get to adjudication, then

the operational failings of an unencumbered “best interests” test may be less obvious.9Relocation

disputes are a distinct sub-set of parenting cases, with a much more limited range of options and

outcomes, and therefore are more amenable to intermediate-level guidance, whether we call them

“presumptions,” “burdens,” “guidelines” or “discipline.”

NOTICE OF MOVESAND PLANNING FOR RELOCATION

Even if it is hard to find agreement on the substance of relocation law,there is wide consensus that

a parental relocation should take place only upon proper notice and after adequate planning. At a

minimum, any relocation provisions should address the process of relocation.

Thompson/PRESUMPTIONS, BURDENS, AND BEST INTERESTS IN RELOCATION LAW 41