Presumptions, Burdens and Best Interests in Relocation

Document Type

Article

Publication Date

2015

Keywords

Best Interest of the Child, Relocation Law, Critique, Suggestions for Reform

Abstract

The pure “best interests” approach to relocation law is a failure. It is unpredictable and expensive, increasing conflict and discouraging settlement. The “fundamental questions” proposed by Parkinson and Cashmore in their article will not reform the law. Real reform will require the use of presumptions or burdens to guide best interests. “Presumptions” are not “rules,” but only starting points. No simple presumption “for” or “against” all relocations can be justified, but there are large categories of cases that do warrant presumptions: interim moves, unilateral relocations, shared care, and predominant primary caregivers. The first three involve presumptions against relocation, while the last—the largest category—warrants a presumption that relocation is in the best interests of the child, unless the contrary is proved. There will remain a small minority of in-between cases where none of these presumptions will operate, recognizing the limits of our general knowledge. It is time to move the relocation reform debate beyond pure “best interests,” to the next stage, to a serious discussion of which cases warrant presumptions, and of what strength.

    Key Points for the Family Court Community
  • Pure best interests approach to relocation law is a failure
  • Presumptions or burdens needed to reform the law, but not just “for” or “against”
  • Presumptions are identified for four categories of relocation cases: interim moves, unilateral relocations, shared care, and predominant primary caregivers

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