Relocation Disputes

Considering relocating with your child to a different city or country? It's essential to understand that such a move requires the consent of the other parent. The decision about where a child lives is a significant guardianship matter, and both parents must agree on it.

Understanding Guardianship

Guardianship involves the duties, rights, and responsibilities related to a child's upbringing. Biological parents are typically joint guardians, regardless of the child's living arrangements. If the parents lived together as a couple between the child's conception and birth, they share guardianship. Courts can also appoint additional guardians, such as grandparents, under certain circumstances.

A guardian's role includes providing day-to-day care and making crucial decisions about the child's life, including changes in residence. Both parents must consult each other on important matters and act jointly in their child's best interests.

What If One Parent Disagrees?

If one parent doesn't agree to the relocation, the other parent can apply to the Family Court to resolve the dispute. Before this step, parents usually attend Family Dispute Resolution with an independent mediator to seek a mutually agreeable solution.

Relocating a child without the other parent's consent can lead to legal consequences, including court orders to return the child to their previous location.

Court Considerations

The first and paramount consideration in any proceeding involving the guardianship of a child is the welfare and best interests of a child.

The court will take into account multiple factors when deciding whether to grant a parent's request for them to relocate with their child and decisions are made on a case by case basis.  The Supreme Court in Kacem v Bashir held that all of the principles in section 5 of the Care of Children Act 2004 should be examined to assess whether they are relevant and should be taken into account, these principles include:

• The child's safety being protected;

• The child's views;

• A child's identity (including their culture, language and religion);

• The child's relationship with both of their parents and their wider family group, whanau, hapu or iwi should be strengthened and preserved; and that

• A child should have continuity in their care, development and upbringing.

Where one parent proposes to move a child to live at a distance from the other parent (and other family members), the court will consider whether the relationship with the other parent (and family) will be disrupted or adversely affected.  Depending on the degree of disruption to that relationship, the court may grant the relocation request if the welfare and best interests of the child favour the change in living circumstances.  Each case is assessed on its specific facts and circumstances.  

Seeking Legal Advice

If you're considering relocating with your child, seeking legal advice early can facilitate smoother negotiations and a more efficient relocation process.

Alternatively, if you have been unsuccessful in negotiating a relocation with your former partner, we can prepare an application to the Family Court to resolve a Dispute between Guardians.

If you have any enquiries relating to this topic or article, or require assistance with relocating with your child, please contact:

Kiri Petrie

Senior Solicitor

DDI: 09 306 6724

Email: kpetrie@mcveaghfleming.co.nz

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