may 2006


You can't just take the kids

When the situation arises

Relocation disputes arise when the guardian who has the day to day care of a child wishes to change his/her place of residence, along with that of the child and the other guardian opposes the relocation. The proposed relocation may be to another country or to another part of New Zealand.

The legal issues

Even though one guardian may not have the day to day care of a child, that does not diminish their duties, powers, rights and responsibilities as a guardian of that child. The Care of Children Act 2004 provides that every guardian has the ongoing responsibility of contributing to the child’s intellectual, emotional, physical, social, cultural and personal development. This means that the guardian without day to day care is still entitled to be involved in questions regarding important matters affecting the child which include, but are not limited to, the child’s name or any changes to it, changes to the child’s place of residence, medical treatment that is not routine in nature, where and how the child is to be educated and the child’s culture, language, and religious denomination.

If guardians cannot agree about any guardianship issue then they may bring an application in the Family Court for a Judge to make a decision.
The Act provides that the welfare and best interests of the children are to be the primary consideration. The Act contains a number of principles, which are considered to be relevant to a consideration of the child’s welfare and best interests.

In a guardianship dispute, the Act requires that the views of the children be represented and it is likely that a lawyer for the children will be appointed to represent those views to the Court.

Relevant considerations in relocation cases

When deciding if a parent can relocate, the following matters have been held to be relevant:-

1. The wellbeing of the parent with day to day care. There have been a number of cases where the parent with day to day care has been allowed to relocate on the basis that the need for relocation is important to the psychological and emotional well being of the parent with the day to day care. This is on the basis that the child’s best interests lie with the wellbeing of that parent.

2. The relationship between the child and the contact parent. Where there is a close relationship and the child’s welfare is dependent upon maintaining that relationship, and it cannot be maintained to the same degree if relocation is granted, then this will impact upon the Court’s decision.

3. The reason for the wish to relocate and the distance involved.
A review of the cases reveals that the decisions are finely balanced and are usually dependent on the specifics of the particular case before the Court. The warning is do not relocate and then to think about this issue, but to seek our advice beforehand.