Joan Rotherham, of Timaru Lawlink firm Timpany Walton, considers what may happen when a custodial parent wants to move out of a town or even a country, and the effect that the move could have on the other parent's access.
In the last 20 years, New Zealanders have become much more mobile. People rarely stay in the same jobs all their lives. They often have to move to find work or promotion, or are expected to move by the businesses that employ them. A New Zealander who has lived in Christchurch or Dunedin for a large part of his or her life often finds it necessary to move to Auckland. Sometimes he or she will have to move overseas.
It is no longer rare for a New Zealander to spend some time working in another country and to marry a non-New Zealander. People often want to marry or set up house with someone in another town or even in another country. Many New Zealanders now have close relatives in another country. Sometimes a parent (often a mother) who has separated from his or her former partner wishes to take the children elsewhere. Frequently he or she will wish to marry someone whose job demands a move, or he or she will want to be closer to parents who have moved, or will have been offered a job elsewhere.
The other parent (often the father) will be dismayed at the prospect of losing regular contact with the children and concerned about the children losing his or her contribution to their happiness and stability. While he or she will usually be offered holiday access to the children, as well as contact by telephone and email, this will generally be less acceptable than frequent contact. The cost of airfares may be a major problem.
The Guardianship Act 1968 makes it an offence for a person to take a child out of New Zealand when someone else has an access order for that child or is about to apply for one. New Zealand has signed the Hague Convention. This allows a parent whose child has been removed from New Zealand to obtain an order for the child's return. But this is only possible if the country to which the child has been taken has also signed the Hague Convention. Such countries include Australia, Britain, the United States of America, and most European countries.
If the parent who has custody wishes to take the child out of New Zealand, he or she needs to apply for a court order allowing that. If the parent wishes to move within New Zealand a court order is not needed. However, the other parent may apply to the court for an access order (or ask the court to alter the existing order) and ask for a condition that the children may not be moved.
The Family Court will probably allow a parent to take a child to live elsewhere if it thinks that the child will be more emotionally secure in the care of that parent and the child rarely sees the other parent. However, it will want to be certain that the child is very sure about wanting to move and understands what it will mean. The court also needs to be assured that there are good reasons for the move (e.g. a specific job or new marriage), and that the parent who does not have custody will have generous access to the child. It is also necessary to show that the parent's relationship with the new partner is well-established and good. If the child's extended family lives at the new location and there are support systems in place there, the case for allowing the child to move is even stronger.
In a very small number of cases, rather than allowing a parent to move and take the child, the other parent has been given custody instead. The right of a parent to seek a new life, as long as the children are well cared for, has to be balanced against the effect on the children of losing regular contact with the other parent.
Copyright The Lawlink Group Ltd 2001
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Joan Rotherham is an Associate in the Lawlink firm of Timpany Walton. Joan has many years' experience in all aspects of family law, in which she has practised almost exclusively for all her career.
Web site: Timpany Walton
Email: joan.rotherham@timpanywalton.co.nz
August 2001
In the last 20 years, New Zealanders have become much more mobile. People rarely stay in the same jobs all their lives. They often have to move to find work or promotion, or are expected to move by the businesses that employ them. A New Zealander who has lived in Christchurch or Dunedin for a large part of his or her life often finds it necessary to move to Auckland. Sometimes he or she will have to move overseas.
It is no longer rare for a New Zealander to spend some time working in another country and to marry a non-New Zealander. People often want to marry or set up house with someone in another town or even in another country. Many New Zealanders now have close relatives in another country. Sometimes a parent (often a mother) who has separated from his or her former partner wishes to take the children elsewhere. Frequently he or she will wish to marry someone whose job demands a move, or he or she will want to be closer to parents who have moved, or will have been offered a job elsewhere.
The other parent (often the father) will be dismayed at the prospect of losing regular contact with the children and concerned about the children losing his or her contribution to their happiness and stability. While he or she will usually be offered holiday access to the children, as well as contact by telephone and email, this will generally be less acceptable than frequent contact. The cost of airfares may be a major problem.
The Guardianship Act 1968 makes it an offence for a person to take a child out of New Zealand when someone else has an access order for that child or is about to apply for one. New Zealand has signed the Hague Convention. This allows a parent whose child has been removed from New Zealand to obtain an order for the child's return. But this is only possible if the country to which the child has been taken has also signed the Hague Convention. Such countries include Australia, Britain, the United States of America, and most European countries.
If the parent who has custody wishes to take the child out of New Zealand, he or she needs to apply for a court order allowing that. If the parent wishes to move within New Zealand a court order is not needed. However, the other parent may apply to the court for an access order (or ask the court to alter the existing order) and ask for a condition that the children may not be moved.
The Family Court will probably allow a parent to take a child to live elsewhere if it thinks that the child will be more emotionally secure in the care of that parent and the child rarely sees the other parent. However, it will want to be certain that the child is very sure about wanting to move and understands what it will mean. The court also needs to be assured that there are good reasons for the move (e.g. a specific job or new marriage), and that the parent who does not have custody will have generous access to the child. It is also necessary to show that the parent's relationship with the new partner is well-established and good. If the child's extended family lives at the new location and there are support systems in place there, the case for allowing the child to move is even stronger.
In a very small number of cases, rather than allowing a parent to move and take the child, the other parent has been given custody instead. The right of a parent to seek a new life, as long as the children are well cared for, has to be balanced against the effect on the children of losing regular contact with the other parent.
Copyright The Lawlink Group Ltd 2001
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Joan Rotherham is an Associate in the Lawlink firm of Timpany Walton. Joan has many years' experience in all aspects of family law, in which she has practised almost exclusively for all her career.
Web site: Timpany Walton
Email: joan.rotherham@timpanywalton.co.nz
August 2001
August, 2001
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