In the event of a separation or divorce, parents with custody of children are required to adhere to certain laws regarding relocation.
If both parties reach a mutual agreement regarding relocation, moving with a young one may be perfectly acceptable. However, abruptly relocating without notifying the other party is not – this is considered abduction.
If a young one has been taken away without a custody of children agreement, it is advised to seek legal advice as soon as possible. If you believe a young one is at risk of danger, contact the police immediately.
What the law states
Laws regarding relocating with young ones apply regardless of whether there are any active court orders. If both parents have equal parental responsibility, they will need to agree upon any significant long-term custody of children decisions that will affect the young one. This includes relocating the young one at a distance that will impair their ability to maintain a meaningful relationship with the other parent (or others close to them, such as siblings).
In the situation where a parent is moving interstate with a young one without the approval of the other parent, the affected parent may want to apply for a court order in order to prevent them from leaving or to have them returned.
If a parent wants to relocate with their young one, they must make a serious attempt to come to an agreed upon custody of children arrangement with the other parent. If this fails, family dispute resolution may be attempted.
If an agreement cannot be made, the parents may apply to the court. The court will assess whether relocating is in the best interests of the young one when making their decision.
It is worth noting that a court decision can take anywhere from months to years and does not come with a guarantee that the young one will be allowed to move. If you relocate with a young one without having the other parent’s custody of children approval, it is likely that the court will order you to return them.
Common questions and answers
What do I do if my son or daughter has been moved against my wishes?
If your young one has been relocated within Australia and you are therefore unable to have a meaningful relationship with them, you should apply to the court for an order to get them returned. Either the federal police or the state police will help to return the young one if needed. You may have to go through family dispute resolution prior to applying; legal advice regarding custody of children is recommended.
What do I do if I don’t know where my kid is?
If you do not know the location of your son or daughter but believe they are still within Australia, apply for a location order through the court to find them. The court may request that government agencies or other individuals share information regarding the young one’s location (e.g. Centrelink sharing the location of the parent who has taken them). If the court responsible for custody of children believes it is in the best interests of the young one to be returned, they will create the order.
Are you allowed to take a young one away on holiday?
If you do not have a court order in place, you are generally allowed to take your young one interstate for a short period of time. However, it is considered common courtesy to inform the other parent of your plans.
If there is a court order in place, this may prevent a parent from taking their young one out of a certain state, even if it is for a holiday. It is best to try to come to an agreement regarding holiday travel. If you need assistance, contact a family dispute resolution service for advice. If this fails you may have to apply for court or seek legal advice regarding custody of children.
Can you move a young one due to violence or abuse?
If you or your young one is at risk of violence or abuse, seek legal advice immediately and contact the police if required. In the case of an emergency, contact 000.