Key legal steps for parents: Relocating with children after divorce

Amber Kennedy is an expert in the legal rights of parents.  Here, Amber explains some of the key legal points separated parents should be aware of before relocating with their child.

• What is relocation?
• What are the most common reasons parents wish to relocate with their children?
• How far away can I move with my child?
• What are my legal rights to relocate internationally with my child?
• What if my ex-partner agrees to my relocation internationally with my child?
• What if my ex-partner won’t agree to me relocating internationally with my child?
• What if my ex-partner wants to relocate with our child, but I don’t agree?
• What will the court consider if I want to relocate internationally with my child, but my ex-partner doesn’t agree?
• How old does my child need to be before their wishes are taken into consideration by the court?
• Does the distance I propose to relocate my child make a difference?
• How long will it take?
• What happens if the court rejects my application for relocation? 
• How should I approach the topic of relocation with my ex-partner? 
• Are relocation cases and disputes common?
• What should my next step be?

What is relocation?

Relocation is when one parent, who is divorced or separated from the other parent, wishes to move to a new area with their child, whether to another part of the UK or abroad.

What are the most common reasons for parents wishing to relocate with their child?

Relocation for job after separation: one parent is offered a new job or opportunity in a different part of the UK or abroad, but the other parent cannot or will not move 

• Relocation for family: one parent wishes to return to their native country, or to join family members who already live abroad, because they feel isolated and/or unhappy after separating from their ex-partner

• Relocation with new partner: one parent has formed a new relationship with someone, who may be from another country, and wants to move abroad with them

• Relocation for a better life: one parent feels that they can improve the lifestyle they and their child currently enjoy if they were to move to a different part of the UK or abroad.

Call our specialist solicitors on 0808 231 1320 for advice.

Relocation disputes tend to arise when a couple with a child separate. Getting a divorce where there is more than one country involved, is complex. You should move quickly to consult an expert, to find out the best country to get divorced in for you, that will likely lead to the better outcome.

How far away can I move with my child?

There is no set distance within which you may relocate without the consent of your child’s other parent in the eyes of the law.  Every family’s situation is very different but in general it is the view that it is in the best interests of the child to have a meaningful relationship with both parents.  The question then becomes how does the physical distance caused by the move, impact on the relationships involved?

What are my legal rights if I want to relocate internationally with my child?

If there is no child arrangements order in place concerning your child, it is recommended that you obtain written consent from every person with parental responsibility for your child.  The written consent of your child’s other parent should be obtained regardless of whether or not they have parental responsibility, save for in exceptional circumstances. 

If there is a child arrangements order in place concerning your child, stipulating that they live with you, you must not remove your child from the UK for more than 28 days without the written consent from every person with parental responsibility, or permission of the court.

If there is a child arrangements order in place concerning your child, stipulating that they spend time with you, you must obtain written consent from every person with parental responsibility for your child.  The written consent of your child’s other parent should be obtained regardless of whether or not they have parental responsibility, save for in exceptional circumstances. 

Failure to comply with the law and obtain appropriate permissions could result in you being accused of child abduction and could result in proceedings being issued for the immediate return of your child, so it is essential that you seek professional legal advice before making firm plans. This could have a significant impact on any future application that you might wish to make in respect of your child and their living arrangements. 

What if my ex-partner agrees to my relocation internationally with my child?

You ought to obtain a child arrangements order by consent. This should record your ex-partner’s agreement and set out what the arrangements for your child to spend time with your ex-partner will be once you have moved.  

If you don’t obtain a child arrangements order by consent, your ex-partner may change their mind and withdraw their consent at the last minute.  This could disrupt any plans you have made to move and, of course, would likely be very stressful for all concerned.  Not least your child.

What if my ex-partner won’t agree to me relocating internationally with my child?

It will usually be necessary to seek permission from the court.  

What if my ex-partner wants to relocate with my child, but I don’t agree? 

If your ex-partner has made an application for relocation and you do not agree to this, you will need to demonstrate to the court why it will be in your child’s best interests to remain, as opposed to relocating. Early expert legal advice can assist you with preparing your case in sufficient detail to oppose such an application. 

If your ex-partner has informed you that they intend to relocate with your child and you have told them that you do not agree to this, but they have demonstrated that they are going to do so anyway, you can make an application to the court. A preventative order can be obtained stopping your ex-partner from taking a specific action in relation to your child, such as relocation. Depending on the timescales involved, an application might need to be made on an urgent basis for an order that prevents your ex-partner from doing so. 

What will the court consider if I want to relocate internationally with my child, but my ex-partner doesn’t agree?

If you and your ex-partner do not agree regarding the living arrangements of your child, you can make an application to the court and ask that they determine any issues that are in dispute surrounding this. 

Broadly speaking, you must be able to show that you have a carefully considered plan before you apply to the court.  It is essential that you demonstrate that your child will be able to maintain a meaningful relationship with their other parent, including spending time with them as often as possible. You should put together a plan which presents your case in the best possible light. 

When determining whether your child should be allowed to move abroad, the deciding factor is usually whether relocating would be in your child’s best interests.  Your child’s welfare is the paramount consideration of the court. Relocation for a child at any age can have significant implications on them. However, the court will also consider the respective situations of you and your ex-partner and, the reason behind your desire to move abroad.  Are you genuinely trying to improve the lifestyle your child currently enjoys, or are you attempting to disrupt and frustrate your child’s relationship with your ex-partner? It will often be necessary to demonstrate that relocating would be better for your child than staying. In doing so, the court will consider factors such as education, support networks, your employment, amenities for your child in the proposed location and so on. 

Remember, it is generally considered to be in the best interests of a child to enjoy a fully functioning relationship with both of their parents.  This is more difficult to achieve if the child lives in a different country from one of their parents, but it’s not impossible.  Moving abroad would not necessarily prevent your child from regularly spending time with your ex-partner, or extended family members..  Regular long-haul air travel is no longer only available to the rich and famous, which makes it much easier for your child to enjoy consistent, face-to-face contact with your ex-partner than it used to be.  Although your child can use Skype, FaceTime and/or e-mail to stay in touch regularly with their other parent, the court does not usually consider this to be an adequate substitute for regular face-to-face visits.  

Other considerations the court must reflect on are:

• The ascertainable wishes and feelings of your child (considered in light of their age and understanding)
• Your child’s physical, emotional and educational needs
• The likely effect on your child of any change in their circumstances
• Your child’s age, sex, background and any characteristics which the court considers relevant
• Any harm your child has suffered or is at risk of suffering
• How capable you and your child’s other parent (and any other relevant person) are of meeting your child’s needs
• The range of powers available to the court.

How old does my child need to be before their wishes are taken into consideration by the court?

Any decision the court makes will never entirely be down to what your child would prefer, regardless of their age and level of understanding.  Your child’s wishes will be just one of several factors that the court takes into consideration when deciding what is best for them.  The court will only start to place any significant weight on your child’s wishes and feelings when they are considered competent enough to fully understand the situation and the consequences of any decision.  There is no set age for this, as all children mature at different rates. It will usually be the role of an independent third party, often a social worker, to speak with your child to find out their ascertainable wishes and feelings before these are reported to the court. 

Does the distance I propose to relocate my child make a difference?

Geographical distance between parents is only one of the factors the court will consider, but there will usually be additional challenges to overcome the further away you wish to move.

Your child may not be able to see their other parent as often, so it is harder to prevent a deterioration in their relationship.  Their other parent may not be able to be as actively involved in the day-to-day arrangements for your child as they are at present.  Your child may feel upset that their other parent can’t regularly attend school events as their friends’ parents do.  If you are more financially secure and funding travel costs for their other parent, this may lead to them feeling financially reliant on you and cause additional friction in your relationship. This could make it more difficult for you to co-parent your child together.

There are some additional legal issues which will arise if you are planning to move abroad.  For example, would the arrangements for your child to spend time with their other parent be enforceable under their laws?  Often it will depend on whether the other country is an EU country or a signatory of the 1996 Hague Convention.  It might be necessary for you to seek advice from a Family lawyer in that jurisdiction to provide you with clarity on this point. Even relocating from England to Scotland will require a child arrangements order to be registered in the new jurisdiction to enable it to be enforced!

Relocation expenses

You have probably thought of the obvious expenses of moving home, such as:

• Deposit
• Mortgage costs
• Stamp duty
• Valuations and surveys
• Legal fees
• Buildings and contents insurance

Costs on the day:

• Removal company
• Temporary storage for personal belongings
• Redirection of your post

Remember also, there will be the legal expenses of securing an order from the court, whether you are applying for an order by consent or if there are contested proceedings.  It is difficult to say exactly how much it might cost to secure permission to relocate with your child through the court, because every case is so very different.  

The costs of obtaining a court order without consent can be quite considerable and the court’s decision will rely entirely on the evidence you lodge in court, so it is essential that you are well-prepared and efficiently represented.  This will ensure that your case is presented in the best possible light, and you have the greatest chance of success.  If your plans are well thought through, meet the needs of your child and include arrangements for them to spend time with their other parent, the other parent may consent much more readily than you might think; however, it is essential to be prepared and get specialist legal advice.

In addition, sufficient thought will need to be given to how the costs of any suggested travel to facilitate contact between your ex-partner and child are going to be met and it is important these are factored into any budgeting, both initially for relocation and long-term. 

How long will it take?

There is no formal notice period that needs to be given to relocate with your child, but it will take time for your application to make its way through the court.  This should be borne in mind when you are planning to move.

If you are applying for an order by consent, it will normally take up to a few months to obtain.  However, if your child’s other parent is contesting your move, the process of applying to relocate through the court will usually take about 9 to 18 months.  If the court is particularly busy, it could take even longer.  There are very limited and exceptional circumstances where, in the case of an emergency, it may be possible to complete the process more quickly.  

What happens if the Court has rejected my application?

If the court does not consider that a move will be in your child’s best interests, they may refuse your application to relocate. 

If this happens, it is often difficult to have an application reconsidered unless there are significant changes in the circumstances that were before the court when the matter was originally decided. It is beneficial to receive expert legal advice if your application has been refused and you are considering reapplying. 

How should I approach the topic of relocation with my ex-partner? 

Agreement regarding relocation can be reached in several ways and a court application is only one of them. Much of how you approach this topic will depend on the co-parenting relationship that you have with your ex-partner. 

You could obtain the assistance of a qualified third party (such as a mediator) to help you and your ex-partner engage in constructive conversations around the details of the proposed relocation with the aim of ultimately reaching an agreement. At Tees, Partners Helen Midgley and Clare Pilsworth are qualified to conduct mediation and can assist with facilitating these sessions. 

Another option is negotiations via solicitors, with a solicitor writing to your ex-partner to seek their agreement to deal with relocation by consent. 

Are relocation cases and disputes common?

Relocation cases are becoming more and more common, where there are an increasing number of relationships between people of different nationalities and, as a result, more disagreements as to where a child should be brought up.  The increase in people being able to work remotely following the Covid-19 pandemic has made the possibility of relocation both nationally and internationally a much more realistic option for many people.

What should my next step be?

If you are thinking of moving to a different area or country with your child, or your ex-partner is threatening to move away and you don’t want your child to move, you should take legal advice from a specialist who can consider your specific circumstances in detail.