The Ex-Files: Jeremy Sutton on parent who wants to move cities but has yet to tell father of kids

Guardians must act jointly and consult each other when making guardianship decisions. Therefore, you must secure your ex-husband’s agreement prior to the move. Photo / 123RF

OPINION:

Q: My partner has been offered a job in Nelson with a competitive salary. I would like to relocate with him and my two sons (age 4 and 6) from my previous marriage. We live in Auckland. I believe the move would afford us a more relaxed lifestyle, and the opportunity to finally get into the housing market.

Housing in Auckland is simply out of our financial reach. I work remotely so would be able to continue in my current role. Although my ex-husband and I are still on good terms, I am unsure how he would react to the proposal. My sons continue to stay with him every second weekend and on Wednesday night each alternate week.

Also, given that my partner is now very close to my sons and effectively acts as the third parent, I believe he should have a say in the matter. Could he be appointed an additional guardian?

Issue one: Relocation

Whether or not your sons should move to Nelson is a guardianship issue. Guardianship is essentially decision-making for your children: Where they live, what medical treatment they receive, what school they attend, and so on.

Where possible (unless an emergency arises and the other guardian is uncontactable), guardians must act jointly and consult each other when making guardianship decisions. Therefore, you must secure your ex-husband’s agreement prior to the move. If he agrees, you should have him confirm this in writing.

If your husband does not agree to the relocation you will need to seek the Family Court’s permission to relocate the children. Relocation cases are difficult as there is often no “midway” settlement option. Either the children get to move or not.

Also, once your child moves out of the region, the parenting dynamic changes for the parent left behind. They can’t easily attend parent-teacher conferences, watch after-school soccer or be on hand to pick up a sick child from daycare. They arguably become a “weekend” or holiday parent.

When presented with an application to relocate, the Family Court will consider what is in the child’s best interests.

Consideration would also be given to three principles, as relevant in your case, and set out in the legislation.

First, the child’s care should be facilitated by ongoing consultation between their parents.

Also, children should have continuity in their care, development and upbringing.

And third, the child should still have a relationship with both parents, and their relationship with wider whānau should be preserved.

In New Zealand, there is no legal presumption for or against relocation occurring. It will always be a “fact-specific enquiry”.

However, the principles of continuity (point 2) and that a child should continue to have a relationship with both parents (point 3) pose difficulty for the parent wanting to relocate.

As a first step you will need to approach your ex-husband to find out whether he is willing to consent to the relocation. You should consider offering him contact with the children in the holidays, facilitating video calls with the children and potentially covering all the costs of the children’s transport to and from Auckland for contact.

If your ex-husband is unwilling to consent then as a next step, you will need to attend family dispute resolution (FDR). If no agreement is reached, you can then make an application to the Family Court to have the court determine the matter.

You should be prepared. The court process may be lengthy - up to two years. Also, a lawyer for the children will be appointed and the children’s views will be considered, although the judge will afford weight to their views based on their ages and maturity.

In some cases, a psychologist is appointed to assist the Family Court. That can cause material delays of many months.

The court would normally expect some mediated process to take place before a hearing. You could try FDR to resolve before filing in court. The success of mediating for this type of dispute is not normally high.

The legal costs cannot be accurately predicted but it is likely to be up to $5,000 for the first six months and a further $20,000 approximately up to and including a one-day hearing.

I cannot stress enough the need for legal advice from a lawyer experienced in this area before proceeding with any court application for relocation.

Where the other parent is having regular contact with the children, as is the case here, the advice will often be that the application is unlikely to succeed.

Issue two: Additional Guardianship

A new partner or spouse can be appointed an additional guardian of the children under the legislation by a registrar without a court hearing, where the parents both consent.

Certain additional conditions need to be met, such as that the new partner must have shared the day-to-day care of the child for at least a year.

If the other parent does not agree, an application would need to be made to the Family Court for the non-parent to be appointed a court-appointed guardian. My view is that it would be difficult to convince a judge to appoint a new partner as a guardian where the other parent remains involved in the child’s life.

There is not usually a strong need for the appointment of the partner as an additional guardian.

Further, it increases the potential for conflict as it means there is another party that needs to be consulted before decisions can be made.