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International Families – Can You Relocate After a Divorce?

February 2018 - Immigration. Legal Developments by OTS Solicitors.

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If you want to move countries with your children after a divorce, it is not as simple as just jumping on a plane and waving goodbye to your old life. Regardless of your reasons for wanting to relocate with your children after a divorce, your ex-spouse may be able to prevent you from moving.

Custody battles involving relocation after divorce can be emotionally and financially catastrophic, which is why you must instruct the best family solicitors in London. Just ask former Gossip Girl star, Kelly Rutherford, who declared bankruptcy following a six-year custody battle with her German ex-husband, Daniel Giersch. In a widely reported decision in 2012, a Californian judge ruled that Rutherford and Giersch should retain their 50/50 arrangement over their two children, but because Giersch was forbidden to enter the United States, the children must remain living in Monaco and attend school there. Rutherford launched a series of legal appeals; each one was denied.

Oscar-winner Halle Berry also fought a bitter battle of relocation with her ex-partner, Gabriel Aubry, with whom she has a daughter. After the couple separated, Berry met her new (and subsequently ex) husband, French actor Olivier Martinez. She wished to move to France with her daughter, a move that was fought by Aubry on the grounds it would interfere with their joint-custody arrangement. In 2012, a judge denied Berry’s request to relocate.

We deal with many cases involving international families, where one party wishes to move back to their home country following a relationship breakdown. And fortunately, most cases are dealt with calmly and respectfully, with the best interests of the children at the forefront of any decisions made.

Reasons for relocating with children after a divorce

There are many reasons for one parent wanting to move countries following a divorce:

  • to be close to the extended family who can offer support
  • to bring up their children in a particular culture or faith
  • you wish to move to the country where your new partner lives

Regardless of the reasons, England has strict laws governing taking children abroad after divorce. To relocate legally, professional advice should be sought as soon as you begin to think of moving countries because everyone who has parental responsibility for your children will need to be involved in the decision.

Defining parental responsibility

The Children Act 1989 defines parental responsibility as “all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In practice, this means the responsibility and rights to make choices over issues involved in bringing up a child; for example where the child will live and go to school, what religious upbringing the child will have and what medical treatment the child will have.

If both parents have parental responsibility, the law assumes that you will make decisions, whether individually or jointly, and continue to exercise parental responsibility in the best interests of the children and this joint duty continues after divorce.

Do I need consent to relocate with children after divorce?

Under English law, all those who have parental responsibility need to consent before a child can be taken out of England and Wales for more than one month. If this does not happen, the relocation could be classed as child abduction.

To move abroad permanently with your children, you will need the consent of everyone who has parental responsibility, or the permission of the court. Therefore, your ex can stop you from moving if they believe it will impact on their ability to see their children or that the move would not be in their children’s best interests.

How your lawyer can help in a relocation case

An experienced family solicitor will do everything possible to keep your request to move countries with your children as amicable as possible with your ex-spouse and help you achieve the best result. It is in the interests of everyone involved for you and your ex to agree as to whether the relocation takes place, and if it does, how you will both co-parent in the new circumstances.

If you cannot work things out between yourselves and you still wish to move, you may have to apply to the court for permission.

Based on previous cases involving relocation, of which there are many, the court is likely to consider the following factors when evaluating if relocating is in the best interests of your children:

  • Is the move for a genuine reason, or is relocation being used as a weapon to get back at your ex and deny them the right to see their children?
  • have you researched and planned your move thoroughly? Do you know where you will live, where the children will go to school and how you will financially support them?
  • Can the parent who is left behind easily travel to see their children?
  • Have provisions been made for the left-behind parent and the children to communicate between visits?

The court will decide by balancing the opposition of the parent who does not want their children to leave England and the future happiness and opportunities which may be denied to the relocating parent if they are forced to stay in the UK. At all times, the best interests of the children will be a paramount consideration.

Every case of relocation after a divorce will turn on its own facts. The court has in the past denied applications by parents wanting to move back to their home country because their employmentopportunities are greater, and the children will benefit from a huge, supportive family network. Applications have been granted where the parent has never set foot in the country they wish to relocate to, but they have been offered a fantastic job opportunity.

For this reason, expert legal advice is essential when considering relocating after divorce. The last thing any child or parent needs is to become embroiled in a vicious battle over moving to a new country.

With the right legal advice and approach, relocation matters can be agreed peacefully, allowing everyone involved to move forward with their lives.

OTS Solicitors is one of the most respected immigration and family law firms in London and is highly recommended by the Legal 500 for human rights and Immigration Law. By making an appointment with one of our immigration and/or family solicitors, you can be assured of receiving some of the best legal advice available in the UK today.