Can my ex-partner just move out with the children?

Often in the context of divorce, the same or similar questions are asked to lawyers. In this series of articles “The most frequently asked divorce questions” our family law attorneys will answer some of these questions.

Question:

Can my ex just move out with the children?

Answer:

The answer to this question in most cases is “No.”

Why is the other parent not allowed to just move out with the children?
The background to this question, of course, is that two partners have had a relationship based on a marriage or registered partnership or a cohabitation relationship.

Married couples and registered partners have joint parental authority by operation of law, that is, without the need for an act, over the minor children born in the marriage or registered partnership.

Cohabitants only have joint parental authority if the minor child is acknowledged after which they have arranged joint custody through the court. For more information on parental authority and its application, read the article “Parental authority”.

Moving house with children with joint custody

With joint custody, the other parent must be asked for permission, even if it is only a few kilometers.

If consent is not given then there is the option of filing a petition through an attorney with the court.

The court should take as its starting point that there is a right to move and thus the possibility of building a new life elsewhere and should weigh not only the interest of the children but the interests of all concerned.

The judge tests the request against a number of criteria:

The need to move.
The extent to which the move has been prepared and thought through.
The alternatives and measures offered to compensate for the consequences.
The extent to which parents can communicate and consult (incidentally).
The other parent’s rights to contact with the children in their own familiar environment.
The division of care responsibilities and continuity of care compared to the “new ” situation.
The age of the children ( opinion from 12 years, how is it rooted).
Additional costs of access after the move.

Jurisprudence shows a very variable picture regarding the outcome of proceedings. This makes a prognosis for the outcome of such proceedings difficult.

It is important to first try to stay in control by mediation or seeking other forms of consultation with the lawyers. If proceedings are inevitable, it is important to litigate “carefully” by really putting forward all the circumstances fully and clearly: that can really make the difference in the outcome.

The Corona virus seems to have increased the need for relocation in general. In a case on April 20 this year, the Amsterdam Court of Appeal granted substitute permission for a mother to move with a child to another place (40 car minutes away from the father) and enroll the child in school there. The need for this move was well established before the Court. The outbreak of COVID-19 made the housing situation more dire, as the mother and her partner were forced to work from home and two workstations had to be created there. With the mother, the Court assumed that working from home will increasingly be the norm even after the pandemic, as the employer of the woman’s new partner confirmed in an email.

Moving with children in case of sole custody

The main rule in this case is that the parent who exercises sole custody may make decisions about the children himself and thus generally does not need the permission of the non-custodial parent to move. However, this parent must be consulted.

Again, the judgment may ultimately be different namely when the move seriously interferes or even
makes it impossible to have contact with the other parent.

The interpretation of this situation depends of course on the concrete circumstances such as the question whether it concerns a foreign move but certainly also the way in which the visitation arrangement is shaped.

In most cases where children have frequent contact with both parents there is also joint parental authority. However, this is not always the case: it happens that the formalization of what parents had in mind in their relationship never took place.

The influence of a parenting plan

In a parenting plan, parents lay out the arrangements for their children after their divorce.

In many cases, this includes a “moving arrangement” (not moving or only moving within a certain number of miles or radius).

It goes without saying that what parents have agreed upon plays a role in a request to obtain substitute permission to move (contrary to what was agreed upon in the parenting plan).

The parent who wants to move will have to make it plausible why he or she can no longer be held to this earlier agreement and/or that it is also no longer in the children’s interest, and then substantiate his or her request using the aforementioned criteria.

The impact of previously granted consent

It happens that a parent in a divorce agreement grants permission to the other parent to move. The parent who gave the previously granted consent may go back on it when moving by arguing that due to a change in circumstances, moving is not in the best interest of the children, so he or she cannot be held to that consent. The court should also take these arguments into consideration when weighing them. The moving parent should realize that the previously granted consent is therefore not necessarily a “free pass.” So even in such a case, it is still advisable to ask for permission as an “update”.

Consequences when you move with the children without permission from the other parent

The most far-reaching consequence of a decision that does not give permission to move is the one that requires moving back and, in the event of failure to do so, the court determines that the main residence of the children will be with the other parent.

So that means a move of the children to the other parent.

Conclusion

The conclusion of the question “Can ex just move out with children?” is as follows. Ask each other’s permission to move with minor children before the move is a fact, especially with joint custody but under circumstances also with sole custody.

Should you have any questions as a result of the above or wish to discuss with me how the difference of opinion between the two of you could be resolved, please feel free to contact me.

The same also applies if you prefer not to come together but for example prefer a solution with each your own lawyer in a so-called four-way consultation.

The most frequently asked divorce questions

Often in the context of divorce, the same or similar questions are asked to lawyers. In this series of articles “The most frequently asked divorce questions” our family law attorneys will answer some of these questions.

If you have a question you would like to see answered in the next ” The most frequently asked divorce questions”, please let us know!