Relocation

Courts considering disputes as to whether a child should be permitted to relocate with one parent to another county or country will consider the following matters, but always having regard to the best interests of the child which is its paramount concern:

 

• Which of two hypothetical or possible outcomes will provide the greater stability of lifestyle for the child

• The contribution to such stability that will be provided by the environment in which the child will reside, with particular regard to the influence of his extended family

• The influence of the extended family

• The capacity for, and frequency of, access by the non-custodial parent.

• The past record of each parent in their relationship with the child in so far as it impinges on the welfare of the child.

• The respect in terms of the future of the parties to orders and direction of the court

 

If a parent wishes to relocate with their child to another jurisdiction, they should seek to negotiate this with the child’s other parent and to reach an agreement.  If consent is not forthcoming from the child’s other parent or guardian, application can be made to Court for an Order permitting the removal of the child from the County/Country.

 

It will be necessary to make full preparations in relation to the relocation including obtaining expert evidence for the Court which will support the application and provide evidence as to the stability for the child.  Such an assessor may also assist with any disputes as to the past record of the second parent in their relationship with the child. 

  

A hard analysis will need to be undertaken as to the reasons for the proposed relocation.

Is it:

 

• To improve living standards for the parent and child

• A requirement made by (international) employers for their employees to move countries and the parent wants to take the child with them

• For a better lifestyle, chance of better housing, a job or better employment terms, cultural reasons 

• One parent has met someone new and may be engaged/remarried and wants to move to their finance or spouse’s country. 

 

The Court will very likely want to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end. It also will likely will want to be satisfied that the child will be provided with a stable lifestyle in the new location. Lifestyle reasons alone are unlikely to be sufficient.

 

The Court should be presented with details of the following:

1. The connection to the proposed country, family members and other supports there, if applicable

2. The accommodation for the child and parent in the new country

3. Visa requirements and eligibility 

4. Schooling

5. Medical concerns

 

The Court will be concerned as to the capacity for, and frequency of, access by the non-custodial parent. Consideration of the impact of relocation on each parent and the opportunity for continuing contact between the child and the parent left behind needs to be undertaken. The court is very careful to ensure that liberty to relocate is granted on the basis that access will be provided to the other parent on an agreed basis and/or by order of the court. This is one of the most critical aspects of cases, particularly where a relocation is to another country and not within Ireland.

 

The past record of each parent in their relationship with the child in so far as it impinges on the welfare of the child.

Where the remaining parent has had limited contact with the child(ren) before the application, there is an argument that the relocation will not have as considerable an impact on the child’s relationship with the remaining parent. Is the motivation for the relocation genuine and not with the intention of bringing the relationship and/or access between the child and the other parent to an end?

 

The respect in terms of the future of the parties to orders and direction of the court

The Court will also want to be satisfied that the parent who has been left behind will be able to enforce his or her access rights in the other jurisdiction. This is not usually a difficulty within the EU but may present problems in other jurisdictions where there is a lack of enforcement procedures with regard to access rights and where legal aid is unavailable or limited in nature. Often moving parent is made responsible for applying in other jurisdiction for orders.

The Court may require that the moving parent obtain mirror orders in the second country if the Irish orders will not be automatically recognised and enforced.

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Timing of an application is often critical, to ensure for example that the child’s schooling is not interrupted mid-term or mid academic year.