Sharing custody of a child can be a difficult endeavor, even in the best of circumstances. However, things get more complicated when one parent wants to move somewhere far away from the family’s current area. Such a move can mean personal and financial growth for the moving parent, but it can cause issues with the other parent and the child custody agreement.
When a Parent Wants to Move Away With The Child After Divorce
Moving far enough away to create issues with the child custody arrangement is considered a “material change in circumstances.” This term means that the parents must either come to an agreement about the new situation or revisit the custody agreement in court. Either way, parents on either side of the equation can feel uncertain and nervous. That’s why it’s essential to understand how Canadian law addresses these issues.
Do I Get Custody Access if the Other Parent Moves?
When a parent wishes to move away with the child, it does not immediately or automatically change the custody agreement. Instead, parents must follow what their agreements say about material changes in circumstances. In most cases, parents have to either come to a new agreement together or go to the courts to settle the issue. This can play out in many ways, depending on the facts of the case.
If the primary caregiver tries to move away with the child, there are three possible outcomes:
- The judge and/or other parent allows both the child and parent to move
- A judge determines that the child must stay in the local area, but the parent moves anyway without the child
- A judge rules that the child must stay local, so neither parent moves
In the first scenario, the parent and child move, but the judge makes a new custody agreement for the parents. The other parent may get to see the child often but for longer stretches of time. For example, a father may go from seeing the child every-other-weekend to having custody over long school breaks and a few weeks in the summer.
The second scenario may cause the biggest change in custody. If a judge determines that it is not in the best interest of the child to move, but the parent wishes to leave anyway, the other parent may get primary custody. For example, if a mother has custody and wants to leave the state, but the father takes the case to court. If the court rules that the child must stay nearby and the mother decides to leave anyway, the father will get primary custody. The mother may then see the child during long school breaks.
Of course, many parents would rather stay in place than move away without their children. If a judge rules that the child must stay, then both parents can decide to stay as well. In this case, the custody agreement would likely remain similar to what it was before anyone considered moving.
How to Modify Custody Access Location
If you want to move away and take your child with you, you must first notify the other parent in writing. If the other parent agrees, you can modify the custody access location and move without issue. However, the other parent is likely to try to stop the move from happening. In this case, you will need to take the case in front of a judge, preferably with the help of an Ontario child custody lawyer.
Both parties in these cases have to prove why they have the best interest of the child in mind. If you are the person trying to move, you need to show the court all of the following:
- The move is well-planned with the child’s well-being in mind
- You are not moving simply to get the other parent away from the child
- If the child is old enough to have an opinion, he or she wants to move or is not actively against it
- The child can remain close to both parents
- The child will be safe and cared for in the new location
If you can prove all of these things, the judge will consider allowing the child to move. However, the other parent will try to prove the exact opposite. For example, the other parent may talk about the loss of connection to the community, the high crime rates in the new location, or the lack of support the family will have in the new location.
If you are allowed to move, it’s important to remember that you will still have to make the children available for visits according to the new custody order. Depending on the judge’s ruling, you may be responsible for some of the costs of children traveling to see the other parent.
Hire a Child Custody Lawyer
Relocation cases like this can be complicated and difficult with incredibly high stakes. The outcome of these cases can change a family forever in many ways. That’s why it’s essential to have experienced, knowledgable lawyers on your side. By hiring a child custody lawyer, you may benefit from their knowledge and they can thoroughly walk you through the difficult process of child custody and relocation.
I’ve lived through #1 and #2(ish). My ex wife relocated with our kids over my strenuous but futile objections. Without significant parenting time, joint legal custody is just the right to loose in court. First across the county line (strategic to weaken our anti move clause), then across the state, and finally across the country. I got stuck with the visiting end of a standard distance parenting plan and most of the cost of the visitation. I tried to make the best of it, but it was awful, both for me and our kids.
#2 came when our oldest wanted to go to college where I lived and wanted to establish instate residency while she was in high school. Her mom refused, so she simply refused to return from visiting me for Christmas. That summer, her sister followed suit, refusing to go back at the end of her summer break with me. Lots of angst, but eventually her mom gave in and let our son join her as well. I think her settling was about having to pay her own legal bills and a belief that she’d likely loose. There was significant damage to her relationship with our girls. Our oldest is indifferent to her mom, and our middle child refuses to visit her mom, even now, as a college student. It’s situation #2ish, because my ex wife chose to stay where she was.
If you can at all avoid it, don’t move. If you have to move, imagine that you are on the other side and what you’d need to maintain your parenting relationship with the kids at distance. Know that a big block of time in the summer is a suckers’s bet as a trade for frequent local contact. Few people can afford to take more than a couple of weeks off, so the kids end up sitting around a house where they don’t know anyone else. My ex poo pood it when I was the one with the summer, but now has to endure the “I’m bored” complaints from our son now that she’s on the wrong end of a long distance parenting plan.