A couple breaks up. The judge gives custody of the children to one of the parents. The parent who doesn’t have custody, but who sees the children often, learns that the other parent is planning to move away.
What happens when the parent with custody decides to move far away? What happens to the visiting rights of other parent?
Moving Far Away From the Other Parent
A move not expected when custody was given to one parent is considered a major change. In this situation, the parent who doesn’t have custody has a good reason to ask for custody or to object to the children moving.
Therefore, the parent who wants to move away with the children should make sure ahead of time that the other parent agrees to the move.
- If the other parent is against the move, this parent can go to court to ask for custody of the children
The judge usually allows the parent with custody to move with the children, except in one of these situations:
- The move is a sudden decision that was not made in the best interests of the children.
- The purpose of the move is to get the other parent out of the picture.
- The children are doing well where they are and are close to both parents.
- The children don’t want to move and the parent who doesn’t have custody wants custody.
The judge must always make the decision based on the best interests of the children.
If the children’s move is allowed, the judge usually rearranges the visiting rights so that visits are less often but last longer. For example, the children might spend all of their long school breaks and several weeks during the summer with the parent who doesn’t have custody. Travel expenses will be either paid by one parent or shared by both, depending on the financial situations of the parents.
A Warning is Mandatory for Divorced Parents
Since March 1, 2021, the Divorce Act has changed. The new version of the law protects divorced parents by preventing one parent from moving with the children without warning the other parent. Before moving, a divorced parent must send a written notice to the other parent who has parenting time with the child. The notice must state the date of the move and the new address.
If the move is significant enough to prevent the other parent from continuing to see the child, the parent who is moving must send the form “Notice of Relocation” at least 60 days before the significant move. The parent who receives the notice and wishes to object to the move has 30 days to send the form “Notice of Objection to Relocation”.
After receiving such an objection, the parent who wants to move must get the court’s approval before moving. The court considers several factors when deciding to approve the significant move or not, including:
- the reason for the significant move
- the impact of the significant move on the child
If the court approves the significant move, it can tell the parents how to split the costs involved in ensuring that the parent who isn’t moving can still afford to have parenting time with the child.
Case 1: Judge Allows the Move
The mother has custody of the child. The father sees the boy every second week, from Friday evening to Monday morning. The mother wants to move to another country to be with her new spouse, and she wants to bring her son with her. The father is against the move because he won’t be able to see his son anymore. He asks the court to give him custody.
The judge decides that the mother can move with the child for these reasons:
The child is close to both parents, but the mother does most of the parenting. The boy is young and isn’t very close to his classmates because he started school only four months ago. The mother will not be working after she moves and will have a lot of time to take care of him.
The father works long hours and can’t be the main caretaker for the child. But the judge does recognize the father’s place in his child’s life and decides that the child will visit him at least 66 days each year, during vacations and holidays. The judge decides that the father will pay for the travel expenses. If the mother makes additional trips to Quebec, the child will stay with the father half the time, and the father won’t have to pay for the travel expenses.
Case 2: Judge Does Not Allow the Move
The mother has custody of the children. The father sees them often. The mother wants to move with the children to New York. She plans to move in with her new boyfriend. She hopes to become an opera singer. The father doesn’t want the children to leave. He wants shared custody if the mother stays in Montreal and full custody if the mother moves to New York.
The judge decides that the children will not move. The mother hasn’t thought through her plans very carefully. She wants to become an opera singer, but there’s a big difference between wishing for something and having it happen. The move would have a major impact on the children: a new environment, separation from their father and from their extended families, separation from their friends, a new school, having to live with someone they barely know, and no financial security. Also, the children won’t be learning French anymore, and they won’t be speaking Greek with their father and his family. If the mother manages to make a career out of opera, she won’t be available to help the children adjust to all of these changes.
Given the judge’s decision, the mother doesn’t leave. The judge rules that the parents will share custody of the children in Montreal.