Can a woman move with her kids when there is custody and access order?

This issue comes up frequently for women with children who leave an abusive partner. Sometimes, they want or need to move for safety reasons. They may not feel safe remaining close to their abuser. The police may not be able to offer them the protection they need; their abuser and his family and friends may be determined to make life difficult for her; she may not be able to participate in ongoing activities such as attending her religious institution or engaging in recreational sports because her abuser is also involved in these activities and so on.

Some women want to move so they can live closer to their families. Perhaps a woman has no family or friends where she has been living with her partner, so she is lonely. Her parents or other family members may have offered to share their home with her or to assist with child care.

Other women want to move so they can find a job and begin to support themselves and their children. They may have a job offer that would require them to move.

Often, women who have custody of their children assume that they can make the decision to move with the children without needing the consent of the children’s father. As long as the father has access rights, this is not the case.

Neither parent can unilaterally move with their children if that move would affect the access rights of the other parent.

If a woman’s ex-partner consents to her moving with the children, she is free to make the move, but she should get his consent in writing, preferably as a clause in the custody agreement or order or, if there is already an order in place, an amendment. Abusers are notorious for changing their minds, so a verbal consent may not be very helpful if, in six months, he decides he wants to force her to return the children to the place they were living before her move.

If he does not consent, she will need to go to court, where she will have to establish to the court that the move is in the best interests of the children, that she is not moving just to interfere with the father’s access, and that she will make extra efforts to support access with him across the longer distance.

If there is an existing order, she can bring a motion to vary. If there is no court order, she will have to start an application.

In her evidence, the mother can tell the court, for instance, that she wants to move with the children because she has a job offer in the new community whereas she has been unable to find work where she and the children are now living. A firm job offer is stronger evidence than the possibility of employment.

Evidence of strong family support where she proposes to move will strengthen her case.

Perhaps the family only recently moved to the community where they now live, and her move will return the children to a place with which they are more familiar, have friends and activities, have attended school, etc.

Where the women’s desire to move is for safety reasons, she needs to set out the details in her motion or application. It will not be enough for her to simply say that she does not feel safe in this community; she needs to tell the court what that looks like for her. Does her former partner follow her to work? Call her at work or home to harass her? Show up at family functions even though he has not been invited? Threaten or intimidate her? What steps has she taken to control his behaviour (eg reporting him to the police, applying for a restraining order) and what have the outcomes of those steps been? How is his ongoing harassment and abuse affecting the children?

Relocating because of a new relationship is not necessarily going to be seen reflecting the best interests of the children, especially if the new relationship is very recent, given the focus in the best interests test on maintaining stability and status quo for children.

In terms of facilitating and supporting a new access arrangement, the woman could offer such ideas as allowing longer visits during school holidays, paying part of the cost of the children’s travel, paying for long distance calls or Skyping between the children and the father, making arrangements so the father can spend time with the children in their new location, sharing the driving to transport children back and forth to access and/or agreeing to a reduced level of child support in acknowledgement of the father’s travel costs to exercise access.

Some situations will be more challenging than others for women. For example, where a father has physical access a number of times during the week, is exercising that access on a regular basis and the children are clearly benefiting from the time with their father, the court may be reluctant to permit the mother to move, if her move will make it impossible for this access to continue.

On the other hand, if the father has not exercised his access regularly or if the father sees the children every couple of weeks for 2 or 3 days and the mother’s move will not interfere with that arrangement, her case may be easier.

Where a custody order is in place, considerable deference will be given to the wishes of the custodial parent for a move as long as it is in the best interests of the children. This is because the court has already decided that it is in the best interests of the children for that parent to be the decision maker and primary parent.

If you are supporting a woman who wants to move with her children, first determine whether she has a custody agreement or order. If so, review the terms of that agreement or order with her in case it says anything about mobility.

If she thinks it is safe, she can ask her former partner if he will consent to the move and, if he does, get that consent in writing.

If she does not wish to ask him or he does not consent, you can explain how the court process works and assist her in starting either an application or a motion as the situation requires.

It is important to review with her the elements of the best interests of the child test, so she knows what points she needs to make in her court documents.

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