Can a Separated Parent Take a Child Out of State?
A separated parent may take their child out of state if they can get the other parent’s consent to move with the child.
In some situations, getting the consent of the other parent can be very difficult.
If you have tried to get the other parent’s consent unsuccessfully, then you ought to at least attempt family dispute resolution (unless family violence or other limiting exceptions are factors).
If you haven’t been able to get the other parent to allow you to take your child out of state, you will have to consider making an application to the Court for an order permitting you to do so.
In that instance, you will have to provide evidence to the Court as to the benefits to the child and what measures you have put in place to ensure that the other parent still has a meaningful relationship with the child.
Without a Court Order
Suppose you decide to relocate interstate without a Court order.
In that case, it is very likely that a Court will order that the child is returned to the parent who has been left behind and that you have to pay the costs of the other parent’s application to the Court to have the child returned, not to mention the damage to your reputation with the judge thereby making it very difficult for you to succeed in an application that you be allowed to move interstate with your child.
Taking Child on a Holiday
In the absence of parenting orders, both parents are free to take the children on holiday wherever they wish.
It is always better if both parents agree to the travel arrangements, though nothing prevents you from taking your child interstate or on holiday without Court orders.
If you wish to take your children overseas, they will need passports. If they don’t have a passport, both parents must sign the passport application.
The other parent can request a passport for ‘special circumstances’ if one parent refuses to sign the passport application.
Should your request not be accepted, you will have to ask the Family Court to make an order allowing your child to travel abroad.
Be aware that if you do choose to take the children on a holiday without notice to the other parent, the other parent may ask the Court to make orders that the children be delivered back into the care of that parent.
It is always better to inform the other parent of your intentions rather than make unilateral decisions about your children.
If You Do Have Parenting Orders
If you do have parenting orders, or either parent has made an application for parenting orders, you cannot take the child on a holiday without the permission of the other parent or by Court order.
Before making an order that the child is allowed to travel with a parent, the Court must consider the best interests of that child and take into consideration:
- how long the child will be separated from the other parent;
- the impact of not seeing the other parent on the child; and
- any other threats to the child’s welfare caused by the proposed trip.
The Court may also need to know:
- the details of the travel itinerary;
- the immigration status of the people travelling with the child;
- what link you have to Australia;
- whether the country(s) being visited is a member of the Hague Convention; and
- any travel warnings/restrictions in place about the country(s) you are planning to visit.
If the Court makes orders allowing the child to travel and that the other parent must sign the passport application, the Court will usually make orders that, if the other parent refuses to sign the passport application, an officer of the Court may be able to do so in the place of the other parent.
It is always better to try to agree on travel arrangements with the other parent, but if the relationship between the parents has broken down to the extent that it will be virtually impossible to reach an agreement, then you ought to consider making an application to the Court for robust parenting orders which include the opportunity to take your children on holidays to the destinations of your choice.
Before making any plans to travel with your children, you ought to ensure that no travel warnings or restrictions are in place as a Court is unlikely to agree to let children travel to areas that may be a risk to them.
Tips for Separated Parents Taking Their Child Out of State
Start planning the move and consider the following:
- Where will you be moving to?
- Where will you live or who will you live with?
- Do you have a job to go to?
- What school will the children go to?
- Can the other parent relocate as well (if this is what you want)?
- When and how will the other parent be able to see the children?
Develop a proposal for the other parent to spend time with the children and be specific:
- E.g. the children will spend time with the other parent for one week in each of the short school holidays and one-half of the long school holidays;
- The handover will take place at a named location;
- Name the parent who will be responsible for the children’s travel costs;
- Provide details of other times that the other parent can communicate with the child via Facetime, Skype, WhatsApp, Messenger or other methods of communication.
Record Your Agreement in Writing
It is not uncommon for one of the parents to experience a ‘change of heart’ after they agree to allow the children to relocate out of state, particularly if the adults’ relationship deteriorates further.
In that case, the parent who no longer has the children can commence proceedings to have the children returned to them.
You may choose to prepare an agreement between you and the other parent.
In the absence of legal advice, the agreement may not be legally binding.
The better option is to document the agreement by way of Consent Orders sealed by the Court.
A Court is usually reluctant to set aside consent orders, particularly in circumstances where one of the parties has had a change of heart.
If You Are Unable to Reach an Agreement
If you are a parent who is hoping to move, you ought to commence proceedings fairly quickly.
You will need to ensure that you have a really good reason for wanting to relocate and that you have covered all of the points set out above in the planning stage as a bare minimum.
If proceedings are commenced, the Court is unlikely to prioritise your matter simply because you are hoping to relocate.
It could take quite some time for the Court to make a decision allowing you to relocate and, depending on how strong your case is, may not make those orders at all.
The Court will always make orders that are in the ‘best interests’ of the children.
If you are the parent who is staying behind and are worried that the other parent is planning to relocate without your agreement, you ought to commence proceedings urgently to restrain the other parent from relocating the children.
Let’s be clear – the Court doesn’t care if one of the parents relocates.
It only becomes concerned if the parent is planning to relocate with the children and no agreement has been reached.
Contact Us
For more information about taking your child out of state or on holiday as a separated parent, contact us at Bambrick Legal today. We offer a free, no-obligation 15-min consultation for all enquiries.
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You can also read more about our Family Law services here.
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