Relocation Advisory Guidelines--an idea whose time has come?

• Author: Boll, Rosemarie
• Position: Family Law

Law professor Nicholas Bala of Queen's University in Kingston, Ontario, took a close look at 750 Canadian cases (1) where one parent asked for the court's permission to move a child against the other parent's wishes. Even though mobility cases seem 'rule-less' and the decisions give the impression of being arbitrary, he did identify 13 patterns of evidence that tended to tip the scales either for or against the relocating parent. He published his findings in the Canadian Family Law Quarterly (2) Bala analysed those 13 patterns and identified the underlying principles. Then he used those principles to develop his Relocation Advisory Guidelines (RAGs). The RAGs are a series of presumptions that he believes Canadian judges are already applying in relocation cases. Bala does not say that his RAGS are what the law should be. He says they are the presumptions that are already guiding judges' decision-making. He hopes his RAGs spark a discussion about much-needed reform in relocation cases.

The RAGs are based on legal presumptions. A legal presumption works this way: if you prove a certain fact, then a judge can go ahead and presume another fact to be true, even though there is no specific evidence for it. For example, the fact that someone has completely disappeared for at least seven years lets a judge presume that the person is dead, even if there is no body or other evidence of death.

Bala says that judges are applying the following presumptions:

Relocation is in the child's best interest and should be permitted once the moving parent has proved that:

1. the other parent has been abusive. This goes beyond a mere allegation. The relocating parent must prove child abuse or spousal violence. If the violence or abuse happens after separation, it is an exceptionally persuasive fact. Once the relocating parent has proved abuse, the judge will presume that the move will be in the child's best interests because moving will give the parent and child some physical or emotional protection.

2. he or she has sole custody. 'Sole custody' doesn't depend on clauses in a court order--there needn't be a court order at all. Instead, the judge scrutinizes each parent's role in the child's life. If the child doesn't have a positive relationship or much involvement with the 'access' parent, the judge is more likely to presume that moving with the custodial parent will be in the child's best interests.

3. the child wants to move. If the child is mature enough (and this...