Child relocation

At a time when migration, either within the borders of our country or outside it, has become a common phenomenon, more and more often clients turn to us with the question of whether and how they can relocate with a child in a situation where they independently exercise parental rights, i.e. whether they need the consent of the other parent (who does not have the sole custody) to relocate to another place of residence or they can leave with the child without his consent.

The above-mentioned cases most often occur when the client has a new business opportunity in another city, or another country, or when, after the end of one marriage, the client establishes a cohabitation or marital union with a new partner and therefore plans to relocate to another city or country. The list of these reasons can certainly be much wider, which is why in this text, we will also focus on those less common reasons.

Is it possible to relocate with a minor child and under what conditions are just some of the questions that we will deal with in this text.

In the first place, it should be borne in mind that the parent exercising parental rights independently cannot relocate with the child anywhere outside the place where he or she lived with the child at the time of the judgment, without notifying the other parent of this intention and that the other parent do not agree with that. The reason for this lies in the fact that the other parent (regardless of not exercising parental rights independently) still has certain rights in relation to the child, and in the context of the story of relocation, the most important of those rights is the right to see their child as per the court decision. determined.

In other words, the right of a parent who does not exercise parental rights independently to maintain personal relations with the child is a right that in the context of the story of relocation acquires primary importance and must be considered without exception, i.e. the decision of the parent who exercises parental rights to relocate from child cannot depend only on the will of that parent.

Therefore, the intention of a parent who has the sole custody to relocate to another city or country directly interferes with the right of the other parent’s visitation rights, i.e. the right of the child to maintain personal relations with the other parent, which is why the consent of that parent is necessary in these situations.

From the above, it follows that such situations will be the simplest if the parent who plans to relocate with the child receives the consent of the other parent for such a thing. In that case, you most likely won’t even need a lawyer, because you will get the “permission” to relocate with the will of the other parent, and the only thing the other parent needs to do is to certify this type of consent with a notary public and hand it over to you.

 

However, what to do in a situation when the other parent does not want to give you consent for moving the child?

In that case, the only option available to you is to initiate court proceedings, which will result in you being allowed to relocate with the child without such consent, that is, by making a court decision by which the court will allow you to relocate. Therefore, even in a situation where the other parent openly opposes the relocation, the decision to relocate cannot be made only by the parent who independently exercises parental responsibility, but the consent of the other parents to be replaced by a court decision allowing relocation.

 

What are the justified reasons for moving a child?

For the relocation of the child to take place, an appropriate court procedure must be initiated in which the parent intending to relocate will state the reasons (and motives) for wanting to relocate with the child, as well as prove the justification of the reasons for the same.

This further leads us to the conclusion that not all reasons for moving a child are equally justified and that the court will not look at any reason that is stated as justified or that seems justified to the parent exercising
parental rights.

Therefore, in theory and practice, a basic division of justified and unjustified reasons for parents to relocate was made.

We say principled reasons because all these reasons, in the first place, are viewed from the point of the best interests of the child, and the justification of some of the reasons we will state, depending on each specific case, can be relative. In other words, in one case a reason can be seen as justified, and in another case the same reason can be unjustified, depending on all the circumstances of the specific family situation.

As already mentioned at the beginning of this text, the most common reasons why clients turn to us with a request to start this procedure are:

• establishing a new common-law/marital union with a new partner
• an opportunity for a new job in another city or country.
• return to the family of origin
• danger of the mother or mother and child/children being exposed to violence by the children’s father, as well as
• the existence of more serious conflicts between parents, which do not involve violence, but are marked by strong and daily conflicts between them.

The second group of reasons are considered in theory as unjustified reasons for resettlement, but especially in this group of reasons there is room for relativizing them depending on each specific case. These include:

• a new way of life for parents who independently exercise parental rights,
• education and training of parents,
• education of the child i
• housing opportunities.

However, in this text we will stick to the two most common reasons.

Establishing a new marital union

Almost without exception, a justified reason on the part of the parent exercising parental rights is the establishment of a new cohabitation/marital union.

This reason is almost the most represented, precisely because it often happens that the establishment of a new union entails the relocation of one partner to the place (another city or country) where his new partner lives or where they jointly intend to live in the future.

When the consent of the parent who does not exercise parental rights in such a case does not exist, as already mentioned, the only option available to the parent who exercises parental rights is the possibility to initiate court proceedings for the relocation of the child.

In such court proceedings, the duration of this union will be especially valued, whether it is possible for the parent’s partner to relocate to the child’s place of residence, the existence of joint children of the parent and his new married/common-law partner, the existence of personal relationships of the spouse/partner with a minor parent’s child, the quality of those relationships, but also the quality and frequency of relationships between the child and the parent who opposes relocation.

Thus, for example, the fact that the parent requesting relocation and his new partner are expecting a child will certainly be seen as a circumstance that speaks in favor of the fact that relocation should be allowed.

Employment or business opportunity

The second reason, already mentioned, is a new job. This reason, due to the circumstances in which we live, is becoming more and more common in our practice, if not the most common. What the parent who is planning to relocate should primarily prove is that he was looking for a job in the place where he lived with the child until then and that he could not find a job, and that he will have a job in the place to which he plans to relocate, or that a new job that pays significantly better than the job he currently has in the place where he lives with a minor child.
Therefore, a parent planning to relocate would have to prove that he has a specific job offer, ie. it would not be enough for that parent to state only that they intend to find a new job. In addition, it would be necessary to prove that the standard of living of the child in their current place of residence is low, and that the standard of living of the child will improve considerably with the new, better employment of the parent with whom he lives.

Justification of opposition to the relocation of a child by a parent who does not exercise parental rights independently

Just like the parent who plans to relocate, the parent who opposes the child relocation should state and explain the reasons for the opposition.

The first and most logical reason for opposition is the fact that by relocating the child, the maintenance of personal relationships with the child can no longer be realized to the extent and in the way it worked until then.

As already stated, the desire of the parent exercising parental rights to relocate with the child for any reason. Taking the child to another city or country directly interferes with the model of seeing the other parent with the child.

In this sense, the opposition of a parent who does not exercise parental rights can be completely justified, with the fact that the final decision of the court will be significantly influenced by the quality of the relationship between that parent and the minor child.

What is the quality of the relationship between the parent who does not exercise parental rights and the child, how often they see each other/don’t see each other, that is, how interested that parent is in seeing their child in general, are just some of the questions that must be answered, and on which the court’s decision regarding the relocation request will depend.

Therefore, when deciding, the court will look at the parent who opposes the relocation from the point of view of the conscientious or unscrupulous parent.

Ukoliko roditelj svoja roditeljska prava i obaveze ne obavlja savesno (npr.ne održava redovno kontakte sa detetom, ne daje izdržavanje za dete, ne interesuje se za dete) njegovo protivljenje se neće ceniti kao opravdan razlog.

In addition, the court must appreciate the motives for which the parents oppose the desired relocation. Namely, the court’s assessment in this regard must be very careful, i.e. the court must consider whether that parent is primarily guided by his own interests and needs, while neglecting what is the best interest of the child, or, for example, his opposition is only a consequence of desire to “hurt” the parent who wants to relocate.

The conclusion is that the opposition of the parents must also have its meaning and essence, and this further means that the parent who opposes the relocation has a serious task in the direction of proving all those reasons why the court should not allow the requested relocation.

Finally, the parent who opposes relocation must be aware of another very important fact – in case of his opposition and desire for the child to remain where he is, that parent would have to prove that he wants, is ready and has all the parental capacities to, in the end to the line, and to the modification of the custody decision so that the child remains with him. Therefore, he must prove that he is ready to be a parent who will exercise parental rights independently if the court does not allow relocation, and that he can perform this duty conscientiously.

Child’s opinion about relocation

How much and whether the child’s opinion will be considered in the first place depends on the age of the child.

1. A child of preschool age
   The fact is that children in the earliest years of life are not able to understand what relocation means, nor all its consequences, which is why in such cases priority will be given to some other aspects – primarily the fact of how contact with the other parent will be maintained and that Is there a danger that over time it will become completely impossible to maintain and develop personal relationships. Thus, both domestic and foreign judicial practice more often recorded cases of refusal to relocate precisely when the child was of a younger age (up to about two years).At the age of 2 or 3 until starting school, the assumption is that the child has already formed an emotional relationship with the other parent, and such cases will be looked at more from the aspect of how to maintain such a relationship as well as possible and whether in each specific case it should be possible.
2. A child of school age
   Even with children of school age, it can be expected that the children will be asked for their opinion regarding relocation, and this is what we as lawyers often insist on. Namely, although according to our Family Law, a child who has only reached the age of 10 can express his opinion in court proceedings, in relocation proceedings it is imperative that the child express his opinion regarding relocation regardless of age. This means that a child under the age of 10 must and should be asked how he views relocation, and the court must pay due attention to the child’s opinion in this regard.However, in the case of a school-age child, keep in mind that the court will consider some other circumstances – the child’s adaptation to the environment, his connection with a wider circle of relatives and other persons in the child’s life, the child’s adaptation to school, friends, teachers, but also whether the child is engaged in any extracurricular activities. Therefore, apart from the child’s expressed opinion on this matter, the task of the parent requesting relocation will be for him, on his part, to prove that the child is ready and wants to relocate from the environment in which he lived until then, that the parent has already undertaken he takes all measures to ensure that he can continue with school and extracurricular activities in the new environment (e.g. that he has found a specific school that the child will attend and that he has inquired about the enrollment procedure or contacted the administration of that school or that he knows that in that place he can continue to train in the sport that he trained until then or attend music school, ballet or something else), but also to adequately prepare the child for the relocation itself.
3. An adolescent child
   Ultimately, the adolescent child will most certainly be asked for their opinion on relocation, which can be a decisive factor in the court’s decision. Namely, a child of this age already has stable relationships with both parents and is capable of understanding the importance and consequences of relocation, so his opinion will practically be binding for the court. So, on the one hand, relocation will be allowed more often when we have a child aged 13-14, compared to a child aged, for example, 2 years, but if that same child does not want to relocate, it would be difficult to imagine that would the court in such a situation still give permission for relocation.