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Child Relocation, Post-Divorce

by PKWA LAW

· Divorce Lawyer

RELOCATING WITH CHILDREN, POST- DIVORCE: A PRIMER

The breakup of a marriage often provides an impetus for parties to begin afresh. With both international mobility and cross-border relationships on the rise, an overseas job posting, a new relationship, or the simple allure of a change in environment can make relocating seem like a desirable prospect. Nonetheless, if there are children to the marriage and the primary caregiver wishes to relocate with them, the process needs to be carefully approached and negotiated.

Who needs to consent?

To start off, both parents must consent to the move, whether there is joint or sole custody. If one parent objects, you cannot proceed without the court’s approval. Were the parent to do so anyway, it would be considered child abduction.

This rule should not be taken as a deliberate obstruction of parents’ plans. Rather, the court approaches its evaluation with one foremost consideration in mind: the welfare of the child.

What will the court consider when deciding whether to permit relocation?

The court will weigh up various factors, including:

a) Whether the request to relocate is reasonable and made in good faith;

b) The effects of relocation on the child;

c) The effects on the child if the wishes of the parent’s wish to take them abroad is interfered with; and

d) The effects of relocation on the child’s relationship with the ‘left-behind’ parent.

None of these reasons has primacy over the other, and there is no single, one-size-fits-all approach. The court pays careful attention to the facts in each case, applying them to its overarching principle – that of the welfare of the child.

What about my feelings on the matter?

a) If you’re the parent who wishes to relocate

To some extent, the relocating parent’s feelings and situation are taken into account. It is well-acknowledged that a child’s emotional and psychological well-being is often intertwined with that of their parent’s, and, therefore, that an unhappy and isolated caregiver does a child little good.

However, parents’ feelings are not technically relevant to the court’s decision in and of themselves. Even if the parent would be deeply unhappy if their application was refused, their unhappiness is only relevant to the extent that it is ‘transferred’ onto the child (for example, if their ability to parent would be badly affected by depression). The law expects parents to put their children’s welfare first, and what a parent thinks best for themselves may not be so for the child.

Importantly, applications to relocate cannot be filed in bad faith or malice – for example, a deliberate attempt to sever the child’s relationship with the ‘left-behind’ parent.

b) If you’re the parent who objects to the relocation

The court generally thinks it desirable for a child to enjoy a meaningful relationship with both parents, and the objecting parent’s relationship with the child, their parenting ability to date, and the effects of relocation are all taken into consideration.

Nonetheless, this is only one aspect of the decision. The objecting parent’s position will only be relevant insofar as it affects the welfare of the child, and the court will still permit a move if it will be the child’s best interests.

Similarly, a parent should not object to an application in bad faith (i.e. purely to make things difficult for the relocating party, regardless of what is best for the children).

I think my former spouse might try to take the children out of the country without my consent. What can I do?

You can file an injunction to prevent the children being taken abroad without leave from the court.

If the child has been removed without your consent, this is considered child abduction. If the child is under 16, was resident in Singapore, and less than a year has passed since they were wrongfully removed, you can apply to court to order their return under the International Child Abduction Act 2010.

Questions? Need further advice? Call us at 6397 6100 or visit our website, www.sgdivorcelawyer.com.sg. We’re happy to help.

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