Home and away: Can my ex stop me from moving away with my children?

Children|January 9th 2020

A question I often encounter from clients is whether their ex can stop them from moving away with their children? 

Sometimes they are moving away to escape the tension or have met a new partner or wish to start a new life elsewhere.  

The legal answer is, as is often the case in family law, it depends on the situation and the current agreement in place. 

Can my ex stop me from moving away with my children?

The breakdown of a relationship is an emotional and difficult time for any family particularly when there are children involved. 

During the process, decisions are made about who the children will live with and the contact that they will have with the other parent. Hopefully, these arrangements work well and the family situation becomes more settled. 

A situation that can arise later is when one parent wishes to move away with the children either within England or Wales (within the jurisdiction) or outside of these countries (outside the jurisdiction). 

These cases often cause a great deal of distress for all those involved and it is important that they are handled with a great deal of sensitivity. 

If the children live with one parent, the “primary carer” (PC) and have contact with the other parent, the “non-resident parent” (NRP)  it is often assumed that should the primary carer wish to relocate, then the children will be relocating with them and that this cannot be challenged. 

However, this is not the case. 

Face-to-face

The first step when a parent wishes to relocate is for both parties to try and reach an agreement between themselves. If possible, this avoids the need to go to court and the potential upset this can cause. 

However, the relocation of children, especially outside the jurisdiction, will inevitably have a huge impact on the contact that one parent will have with their children and so an agreement between the parties is not always possible. 

Court application

If an agreement cannot be reached, then an application to the court will be necessary to obtain approval to relocate with the children. Alternatively, the parent that is opposing the removal of the children can make an application to the court to prevent the relocation. 

Case law 

Historically, there has been a notable reluctance from the NRP to challenge the PC regarding the relocation of their children in the belief that an application would be fruitless and that the courts favour the PC. 

At this time, the courts placed a lot of emphasis on the impact on the parent wishing to relocate if the application was rejected, this was one of the points of consideration under the leading case at the time of Payne v Payne [2001]. 

However, recent case law indicates that times have changed. 

The leading case law in this area is now K v K [2011] and Re F [2013] and the paramount principle is the welfare of the child.  There is guidance set out within these cases and also Payne v Payne, but they are not applied rigidly, and they are merely factors that are weighed by the court in ascertaining what the best interests of the child are. They can include the impact of a refusal on the applicant parent, the effect on the child due to the reduction of contact with the remaining parent and the impact on the remaining parent.  

I have previously advised clients on internal and external relocation cases and successfully opposed an application by the PC to relocate outside of the jurisdiction and opposed an application by the PC  to relocate within the jurisdiction (in this case the parents had a shared care arrangement). 

Relocation cases can be very challenging for all parties involved. Taking a child away from one parent is not a decision that should be taken lightly and the welfare of any children must be paramount. 

Get in touch 

Are you asking the question, can my ex stop me from moving away with my children? Or your ex is moving away with the children? Then please make a confidential enquiry to our client care team here who will put you in touch with a specialist family lawyer. 

Claire is very focused on her clients and identifying their desired outcome from the beginning. She advises on all elements of divorce and works hard to resolve any financial and children matters as quickly and cost-effectively as possible.

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