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Taking the children abroad could create serious legal problems

View profile for Amanda Rimmer
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Divorce and the family home

You have picked the house with a nice big garden, the children’s schools and you have secured your dream job.  All of this could be just down the road, in a neighbouring town, in a different county or it might even be on a different continent. You have got everything organised and arranged.   New life, new start - particularly if you have recently separated. 

But have you forgotten anything? What about the children and your ex? Have you told them that you are moving? If they don’t know anything about your new plans you might be heading for trouble.

If the move is a short distance away there are probably a couple of things you might need to discuss – those practical arrangements to ensure that the transition goes smoothly.  You might like to invite your ex to visit the new home and surroundings – this can put an anxious parent’s mind at rest. But if you are not going ‘just around the corner’ how will it affect the children and the time that they currently spend with their parent? Worse, what happens if your ex is just not happy?

Of course, we all have the right to choose where we want to live, but when there are children involved things can become much more complicated.  Whilst there are always exceptional cases, the court will not impose a restriction upon your right to live where you choose within the country.  If you fear ex-partner might object, you may apply for a Specific Issues Order. 

Moving abroad is a different issue. 

If moving affects the arrangements in place for contact you will need to agree new ones. Times and days when you and your ex see your children may need a rethink.  But if things will change significantly, with the children spending much less time with their parent, then your ex can try to put a stop to all that you have been planning. 

For a family with court orders in place you must not change those arrangements unless you both agree.   If you have an order setting out the time the children spend with each parent, and that contact doesn’t happen, you will have breached the order, even if it wasn’t practically possible because of the distances involved.

A parent with an order is legally entitled to spend that time with their children – they have a right to see their parent.  Check your papers carefully – a residence or a child arrangements order will prohibit you from taking the children out of country for more than 28 days without permission. If you are looking to move abroad permission is needed from the court or from your ex.

Taking your children abroad without that will see you in serious trouble.  The children will have been wrongfully removed and you will have committed a criminal offence. You could also find yourself in court proceedings and being ordered to return to the country.

Not many parents will find it easy to agree to children emigrating.  So what’s the advice? 

You need to be organised and have a plan. Talk to your ex early and let them know what you are thinking. Depending on the country involved you are likely to need formal paperwork for the children to cross their border – normally an order that the children live with you and another giving you permission to leave this jurisdiction.  The authorities need clear evidence that you have the right to enter their country with your children. 

If you can’t reach an agreement, at least you have started your conversations early enough to allow time to apply for an order to enable you to leave legally.

But, just because you have applied for an order, doesn’t mean you will get one.  Any application will be fully investigated and will take time so that the best decision is made for your children.  Both parents have equal say and will be heard.

The court will want to know about your plans. Where you are going to live? How you are going to support the family? Where the children are going to go to school?  Create a portfolio of your new life in which you provide all the details of what it is going to be like for the children – a picture of their new home, a prospectus of the school, information about the surrounding area and facilities, what makes it better than home etc.  A very important part of that plan is the arrangements for the children to contact and spend time with the other parent and extended family.  Where will this take place and what will happen between visits?

If the court senses that the real reason for a move is to prevent the children seeing their parent and to push them out of their life, they will put a stop to your plans.

These situations - whether you are planning a new life or working to prevent a move - can cause huge stress, upset and – potentially - a very significant financial loss. 

As a parent you must think very carefully about what is best for your children – not just what is best for you.

By family and divorce solicitor, Mandy Rimmer

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