During a separation, where children live is often the most contentious issue. It might take long, stressful negotiations or even court for you to decide. Then several weeks, months or years later, things might change. Perhaps your ex has a new partner or a new job that results in them wanting to move away with the children. What can you do if your ex wants to move away with your children?
Your rights will depend entirely on the circumstances surrounding your separation with your ex.
Separated couples (never married)
Your rights will depend on whether you have Parental Responsibility. Parental Responsibility is a legal term which means you have the right to make decisions on behalf of your children, such as where they live. Only the mother has automatic Parental Responsibility, unless she married the father at any point. Since 2002, fathers gain Parental Responsibility if they are on the birth certificate. Fathers can also get Parental Responsibility through a Parental Responsibility Agreement.
If you didn’t make the terms of your children’s living arrangements legally binding when you separated, through a Child Arrangement Order, then you will only have the right to decided where they live if you have Parental Responsibility. Therefore, a mother may be able to take her children away if the father never married her or wasn’t on the birth certificate. However, the father could apply for a court order to prevent her from moving the children away.
If you did get a Child Arrangement Order (previously known as a Residence Order or Contact Order) when you separated with your ex, it may specify where you and your children must live or provide visitation rights for your ex. If this is the case, you may need permission from the court to relocate in the UK or abroad.
Divorced couples
Divorced couples will usually have more rights than unmarried couples. This is because both parents will have Parental Responsibility and it is likely that a Child Arrangement Order was agreed during the divorce.
What the courts consider
Firstly, if both parents agree to the children moving, the process can be very straight forward and no legal steps are necessary. However, it would be advised to make any decisions legally binding just in case either parent withdraws consent at any time.
If you can’t agree, the ex seeking the move will need to prove to the courts the relocation is in the best interests of the children. Examples of this include, moving for a better job, financial security with a new partner, to a safer area, better education or to be closer to relatives.
The court will want to make sure the children’s relationship with the other parent doesn’t suffer, but this doesn’t mean it must remain the same. If it’s impractical to maintain the current arrangement (e.g. travelling hundreds of miles for a weekend), the court may seek a compromise, such as longer stays during school holidays.
Each scenario is different and a court will weigh up the advantages and disadvantages of relocating. The courts’ first priority will be for the well-being of the child but generally the courts want to keep both parents involved in their children’s lives.
If you or your ex is considering moving your children way and you have any questions, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.
