Should you be given custody of the child? Part 3
In our second article in the series, we looked at joint custody versus sole custody. While doing so, we highlighted the quality of the communication between parents as an important factor in determining what type of custody should be granted. Our first article in the series highlighted the welfare of the child as being the primary consideration in determining custody arrangements. The status quo was identified as a factor subsumed in assessing the welfare of the child. Today we will take a closer look at the importance of the status quo. We will also provide further insight into the process of determining matters surrounding the custody of a child.
Status Quo
Status quo refers to the existing custody arrangement whether established by a court order, or not. Where a parent asks the Court to change the existing situation, that parent must show why doing so is in the child’s best interest. This is particularly important, where a request is being made for a change in which parent will have the day-to-day care of the child. Such a change, is accepted as capable of having long-term damaging consequences, as it could interfere with a child’s sense of security, and established social bonds.
Maintaining the status quo may involve allowing the existing residential parent to relocate to another country. In the same breath, one may say that relocation involves disrupting the physical environment the child is accustomed to. However, the continuous and uninterrupted presence of the parent with the day-to-day care of the child is a key element of a child’s environment. The uninterrupted presence of the parent who has had day-to-day care of the child is also tied to a child’s emotional welfare. The emotional welfare of a child is taken seriously, and the Court is usually cautious about interfering with healthy emotional bonds.
Relocating with your child
Perhaps you have found new, and exciting romantic love which requires you to relocate overseas. Or, maybe you need to relocate overseas to pursue better career opportunities. Whatever your reason, in asking the Court to determine the custody arrangement for your child, the desire to relocate will be an important consideration.
As always, the Court’s primary consideration is the welfare of the child. A request for permission to relocate overseas with the child, involves a change to the status quo. As indicated above, changing a child’s healthy status quo is not taken lightly. A healthy alternative status quo must be offered in the relocation.
The Court will also consider the impact of preventing the relocation with the child on the residential parent’s psychological and emotional well-being. This is an important consideration, since the unhappiness experienced by the parent with day-to-day (residential) care, may filter down to the child, if the parent feels forced to delay relocation in order to continue having day-to-day (residential) care of the child.
Subsumed in the request for a residential parent to relocate overseas with the child, is a consideration of the parent’s right to freedom of movement, and determine where to reside. As you might agree, this is generally not an easy task for the Court which bears the burden of making a balanced decision having considered the rights of all those involved.
In an effort to be fair, the Court will consider whether the desire to relocate overseas with the child is an attempt to exclude the other parent from the child’s life, and the impact of the relocation on the other parent. In a further attempt to be fair, the Court will also consider whether the parent has proposed a realistic relocation plan.
A similar effort is made to be fair to the parent seeking to relocate by examining issues such as whether the other parent is against the relocation overseas with the child, out of concern for the child’s welfare, or some other reason.
Where the Court approves the relocation, orders would be made regarding access. For the avoidance of doubt, an order may also identify who should bear the cost of travelling, and who should accompany a young child to facilitate visitation.
In our next article we will highlight supervised vs unsupervised access/visitation, and other considerations.
Disclaimer by the author: Nothing in this article is to be taken as legal advice. You should consult an attorney regarding your specific case. All liability with respect to actions taken or not taken based on the contents of this article are hereby expressly disclaimed.