Where a child lives, and any changes to this, are guardianship issues. The law provides that guardians (usually this is the parents) should consult with each other and reach agreement on guardianship issues.
If the guardians cannot agree, then an application can be made to the Family Court for a Judge to decide. Given the impact relocation (either within New Zealand or overseas) can have on the relationship between a child and the parent left behind, it is often contested.
In one recent case, the parents of two children were not able to agree on where they should live. The mother wanted them to live with her in New Zealand, and the father wanted them to relocate and live with him in the Pacific Islands.
The children had lived in both locations for significant periods of time, and saw themselves as having two homes. Each parent had re-partnered, and the new partners had good relationships with the children (although there was some concern about the mother’s partner’s past behaviour when consuming alcohol). The psychologist was of the view that both parents were closely bonded with the children, and that both were “primary caregivers”.
The Court noted that it was a finely-balanced case, but that ultimately it was best for the children to remain in New Zealand with their mother. Two factors in this decision were that:
- Some of the father’s family held negative views about the mother, and there was a concern that if the children lived with their father (and his family); the relationship with their mother might not be preserved and strengthened; and
- There was a 26 month delay in getting to a hearing – during which time the children were well-settled, happy and developing well in their mother’s care.
There is no presumption either against or in favour of relocation, and each case is assessed on its particular facts. The paramount consideration is the welfare and best interests of the particular child in his or her particular circumstances.
The situation can be more complex if one person has already relocated with a child, and seeks permission retrospectively. Depending on the circumstances and how quickly action is taken, it may be possible to seek an immediate return. If the move is international, this will depend on whether the other country is a signatory to the Hague Convention on International Child Abduction. Further information about having a child returned from overseas can be found on the Ministry of Justice website here.
If there is a concern that a child is about to be relocated without consent, it may be possible to urgently obtain a non-removal order to prevent this.
If you would like further information or advice, please contact our Wellington based family lawyers Debbie Dunbar, email firstname.lastname@example.org, phone (04) 495 9940 or Maretta Twentyman, email email@example.com, phone (04) 495 8918.
Further information can be found here: