Legal implications relating to the relocation of the custodial parent

Abstract

It is presumed that the parent who has been given custody of the minor children has also the freedom to move with the children from one place to the other and from one country to another. This assumption is however inaccurate as the ostensible right of movement clashes with the right of access and parenting of the 'left-behind' parent. In the Maltese legal system, positive legislation is silent in this regard. Case-law has addressed the issue in a piecemeal fashion that leaves much to be desired. In the United Kingdom we find that landmark case-law has favoured the notion that the child's well-being is a derivative of the custodial parent's well-being. With the passage of time, legal experts in the United Kingdom have propounded a more extensive approach towards assessing the factors that are involved in a relocation case. In the American system, we find a veritable labyrinth which depends on the individual State's statutes. The notions of presumptions and burden of proof are explained and landmark cases in a number of States are analysed to elicit key concepts. It is noted that some States immediately developed a holistic approach towards relocation of the custodial parent whilst other States started with cut and dried judgments which then were reversed by other cases advocating a more general approach. In this mine field of inconsistency, this thesis describes various efforts that have been made internationally to harmonize the approach towards relocation. It is felt that statutory provisions should establish clear standards to be adopted by the Courts, as well as to enhance the part to be played by the Children's Advocate whenever the matter appears in front of a Court of Law. Mediation proceedings in family causes should also be extended to relocation cases.