A court ruling from the United States Supreme Court in New Jersey has reversed the long established standard to be applied in divorce-relocation disputes. The test to be applied in New Jersey Court cases concerning a parent who wishes to leave the State with their child when the other parent refuses to consent now appears to be similar to that used in the Scottish Courts.

It is enshrined in Scots Law that the parent seeking a court order permitting them to relocate with their child will have to establish that such a move is in the best interests of the child.

The welfare of the child is paramount and all of the facts and circumstances of the case will require to be taken into account.

In most cases the parent who wishes to move will provide evidence in support of the move including information about the nursery or school that the child would attend, medical services and available accommodation.

They are also likely to provide evidence about the proposed childcare arrangements and information about their support network in the new area.

Recent court judgements also demonstrate the importance of their proposals to maintain the relationship between the child and the parent who is left behind.

It is surprising to me that for decades the New Jersey courts have been applying a law which focussed on whether the move would "cause harm" to the child rather than attempting to determine what would be in their best interests.

According to one US lawyer under the old standard, there was a presumption that children were happiest when their main carer was the happiest.

Now that the test has been changed it ought to produce more sensible outcomes for parents and promote the welfare of the children as the Scottish courts aim to do.

If you are a parent considering relocation with your child or are unsure whether to consent to your child relocating with their other parent, there are many factors to be taken into account.

For further advice, please contact me or one of my colleagues in the Brodies' family law team.


Lydia McLachlan

Senior Associate