Custody and Mobility: The Law

Abstract

A well-known axiom of Family Law is that following parental separation the children of the relationship generally need a continuing, close contact with both parents in order to ensure their good psychological health.' Accordingly, when one parent has sole custody of the child, good and frequent access to the other parent is normally seen as being of vital importance. However in an era of increased mobility, attributable in part to the quest for employment opportunities, it is not uncommon for the custodial parent to seek to move towns or countries. In such situations a Court is confronted with the difficult task of determining whether the benefits of access are so compelling in the particular case that the wish of the custodial parent to move must be denied. In New Zealand, as in Australia, Canada, and England, issues on custody and access are controlled by the paramountcy principle, albeit in slightly differing forms, and any decision is inevitably particularised and dependent on its own facts. Nonetheless, a study of the cases from the various jurisdictions does reveal the emergence of some general trends and principles, and this article aims to isolate and analyse those trends.